Opinion
12726 Index No. 152478/14 Case No. 2019-5816
12-22-2020
DOUGLAS ELLIMAN, LLC, Plaintiff–Appellant, v. TWP REAL ESTATE, LLC, Defendant–Respondent, Five East 44th LLC, Defendant. Seymour J. Weinberg, CPA, Nonparty-Respondent.
Lieb At Law, P.C., Smithtown (Mordy Yankovich of counsel), for appellant. Marco & Sitaras, PLLC, New York (Gerasimos Liberatos of counsel), for respondent.
Lieb At Law, P.C., Smithtown (Mordy Yankovich of counsel), for appellant.
Marco & Sitaras, PLLC, New York (Gerasimos Liberatos of counsel), for respondent.
Acosta, P.J., Oing, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered July 2, 2019, which denied plaintiff's motion, pursuant to CPLR 2308(b)(1), to compel nonparty-respondent to comply with a subpoena duces tecum requiring the production of certain bank statements and tax returns, unanimously affirmed, with costs.
At the outset, we note that plaintiff moved to compel the nonparty's compliance with its subpoena duces tecum under the incorrect subdivision of CPLR 2308. Because the subpoena was issued by an officer of the court – namely, plaintiff's counsel – it was a judicial subpoena, and therefore CPLR 2308(b)(1), which applies only to nonjudicial subpoenas, was inapplicable (see Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., CPLR C2308:1). However, since plaintiff also moved for "such other and further relief as may be just, proper and equitable," we deem the motion to have been made under CPLR 3124, which affords plaintiff essentially the same relief that it seeks (see Arverne Bay Constr. Co. v. Thatcher , 250 App.Div. 482, 483, 294 N.Y.S. 926 [2d Dept. 1937] ).
Nevertheless, plaintiff's motion was properly denied, because it only made vague assertions that the demanded tax returns would be relevant to its claims, and did not identify "the particular information [in] the tax returns" that will aid in the prosecution of its claims ( Weingarten v. Braun , 158 A.D.3d 519, 519–520, 68 N.Y.S.3d 707 [1st Dept. 2018] ; see Demurjian v. Demurjian , 184 A.D.3d 505, 506, 124 N.Y.S.3d 176 [1st Dept. 2020] ; Nanbar Realty Corp. v. Pater Realty Co. , 242 A.D.2d 208, 209, 661 N.Y.S.2d 216 [1st Dept. 1997] ; Briton v. Knott Hotels Corp. , 111 A.D.2d 62, 62, 489 N.Y.S.2d 186 [1st Dept. 1985] ).