Opinion
Index No. 650395/2020
09-06-2022
63rd & 3rd NYC LLC, Plaintiff, v. Starr Indemnity & Liability Company, Defendant.
Unpublished Opinion
Robert R. Reed, J.
This is an action for insurance coverage for property damage allegedly sustained during a construction project. Defendant STARR Indemnity issued an insurance policy to plaintiff, the owner and developer of a construction project, located at 1059 Third Avenue, New York, New York. It is alleged that the terms of the STARR policy were triggered by an incident on January 9, 2019, when a partially constructed exterior wall panel fell from the 25th floor of the project onto an adjacent building.
STARR Indemnity moves, by notice of motion, for a so-ordered subpoena directed to the City of New York, Department of Buildings, for records related to the subject incident (NYSCEF doc. no. 38). STARR requests that this court issue a judicial subpoena duces tecum that directs the New York City Department of Buildings to produce documents for the period of January 1, 2016 through the present (NYSCEF doc. no. 39, para 2). No opposition to the motion was filed.
CPLR 2307(a) provides, among other things, that
"[a] subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party.
The purpose of a judicial subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (Figueroa v 2289 3rd Ave Realty Corp. 2021 NY Slip Op 30539(U)[Sup. Ct, New York County 2021]).
The statute is reinforced by CPLR 3120(4), which expressly provides that the motion requirements in CPLR 2307 are applicable when a subpoena duces tecum is sought to be served on governmental departments in pretrial disclosure. If the subpoena duces tecum is joined with a subpoena ad testificandum, permitted by CPLR 3111 for the purpose of having the nonparty witness appear at a deposition with the books, records and other things that would be marked as exhibits and used for the deposition, the requirements in CPLR 2307 are applicable (Sanderson v New York City Transit Authority, 16 Misc.3d 1111(A) [Sup. Ct, Kings County 2007]). The motion must be made on notice to the department or officer having custody of the records sought (CPLR 2307).
STARR requests that this court so-order a subpoena issued to the City of New York Buildings Department, located at 280 Broadway, 7th Floor, New York, New York 10007 (NYSCEF doc. no. 43). The subpoena requests the production of the City of New York Department of Buildings' entire file concerning the property located at 1059 Third Avenue, New York, New York, for the period of January 2016 through the present (NYSCEF doc. no. 43, pg. 1). Specifically, the subpoena seeks the production of documents, correspondences, fines, violations, inspections, and orders related to the January 9, 2019 incident, and also seeks the production of a witness with knowledge regarding the incident (NYSCEF doc. no. 43, pg. 2).
Here, the subpoena requested by STARR seeks documents, things, and testimony from the City of New York, Department of Buildings. The records sought fall within the ambit of CPLR 2307. Therefore, the motion must comply with the terms of CPLR 3207 and must be made upon notice to the City of New York. STARR correctly moved this court for issuance of the municipal subpoena, but failed to attach an affidavit or document evidencing that the within application was made on notice to the City of New York (CPLR 2307; see also CPLR 2302[b][requiring a motion for a judicial subpoena for the production of a record or document be made on at least one day's notice to the person having custody of the record]; Figueroa v 2289 3rd Ave Realty Corp. 2021 NY Slip Op 30539(U)[Sup. Ct, New York County 2021][recognizing the right of a party to move to quash a judicial subpoena on the ground of insufficient notice]).
Accordingly, it is hereby
ORDERED that defendant STARR's motion pursuant to CPLR 2307 for a so-ordered subpoena, directed to the City of New York, Department of Buildings (motion sequence 002), is denied, without prejudice, with leave to renew within twenty (20) days upon proof of notice in compliance with CPLR 2307.