Opinion
February 11, 1991
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and that branch of the defendant's motion which was for the imposition of monetary sanctions upon the plaintiff and his attorneys is denied.
It is well established that CPLR 3126 affords a court discretion to impose sanctions upon a party or attorney who has engaged in dilatory conduct and impeded disclosure by wilfully failing to comply with a discovery notice or order (see, Sloben v Stam, 157 A.D.2d 835; Rosner v Blue Channel Corp., 131 A.D.2d 654; Mancussi v Middlesex Ins. Co., 102 A.D.2d 846). Upon our review of the record, however, we find that the court improvidently exercised its discretion in imposing monetary sanctions against the plaintiff and his attorneys on the ground that they had unnecessarily delayed the deposition of non-party witness Robert Baron. In this regard, we note that the original non-party witness subpoena served upon Baron was facially defective because it neither contained nor was accompanied by a notice stating the "circumstances or reasons" (CPLR 3101 [a] [4]) why disclosure was sought (see, Matter of Yost v Douris, 151 A.D.2d 489; Bigman v Dime Sav. Bank, 138 A.D.2d 438). Although this defect was subsequently remedied, the delay attributable to the plaintiff's ensuing motion to quash the subpoena, and his motion to reargue the denial of that motion, could not under these circumstances be properly considered a dilatory tactic designed to frustrate disclosure. Sullivan, J.P., Eiber, Balletta and O'Brien, JJ., concur.