Opinion
Index No. 654194/2019
09-29-2022
Lastinc, LLC, Plaintiff, v. AECOM USA, Inc., ABC CORPORATIONS 1-10, Defendant.
Unpublished Opinion
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13 were read on this motion for SUBPOENA.
This is an action for nonpayment of a contractual obligation. Plaintiff, LASTINC LLC (LASTINC), is a New Jersey construction consulting company. Defendant, AECOM USA, INC. (AECOM) is a New York Business Corporation. LASTINC commenced this action to recover funds LASTINC believes AECOM received from the City of New York for professional services performed by LASTINC. LASTINC moves, by notice of motion, for a so-ordered subpoena directed to the City of New York, Department of Design and Construction (DDC), to compel disclosure of records and documents associated with a payment transaction in January of 2018 (NYSCEF doc. no. 11). 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. The motion must be made on notice to the department or officer having custody of the records sought (CPLR 2307).
LASTINC requests that this court so-order a subpoena issued to the DDC, located at 30-30 Thompson Avenue, Long Island City, New York 11101 (NYSCEF doc. no. 11). The subpoena requests the production of payment transaction documents for Contract CT185020151424706, Transaction 10. Specifically, LASTINC requests records of a check issued January 25, 2018, in the amount of $2,290,000 to AECOM USA. The demand also includes a request for the production of invoices, approvals, checks, correspondences and any other documents related to this transaction (NYSCEF doc. no. 11, pg. 1).
Here, the records sought by LASTINC 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. Plaintiff 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 as required by 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 LASTINC's motion pursuant to CPLR 2307 for a so-ordered subpoena, directed to the City of New York, Department of Design and Construction (motion sequence 001), is denied, without prejudice, with leave to renew within twenty (20) days upon proof of notice in compliance with CPLR 2307.