Opinion
570772/03.
Decided November 4, 2004.
Plaintiff appeals from so much of an order of the Civil Court, New York County, entered March 31, 2003 (Anil C. Singh, J.) which granted defendants' motion for an order permitting service of a subpoena on a nonparty witness to compel her examination before trial and from so much of an order of the same court entered May 22, 2003 (Karen S. Smith, J.) which denied plaintiff's motion to dismiss defendants' counterclaim pursuant to CPLR 3211.
Orders entered March 31, 2003 (Anil C. Singh, J.) and May 22, 2003 (Karen S. Smith, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Civil Court properly granted defendants' motion for an order permitting service of a subpoena on a nonparty witness to compel her examination before trial. CPLR 3107 permits an examination before trial "of any person" upon mere notice and service of a subpoena, without the necessity of a court order ( see New England Mut. Life Ins. Co. v. Kelly, 113 AD2d 285; Siegel, New York Practice [3d ed], § 354, at 552).
Civil Court also properly denied plaintiff's motion pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(5) to dismiss defendants' first counterclaim. Civil Court correctly ruled that the motion was not made "before service of the responsive pleading [wa]s required" and that the defenses were waived (CPLR 3211[e]). Civil Court also properly denied plaintiff's CPLR 3211(a)(7) motion to dismiss defendants' first counterclaim, as the first counterclaim clearly states a cause of action for breach of contract (see Richbell Information Services, Inc. v. Jupiter Partners, L.P., 309 AD2d 288.
This constitutes the decision and order of the court.