Opinion
February 10, 2009.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 23, 2008, which denied defendants-appellants' motion for an order directing the issuance of a commission pursuant to CPLR 3108 to examine a nonparty witness in California, unanimously affirmed, with costs.
Before: Tom, J.P., Saxe, McGuire, Moskowitz and Freedman, JJ.
The motion court properly denied the motion since "absent allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that 'the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination', the [appellants have] failed to demonstrate that a commission is 'necessary or convenient'" ( Susan A. v Steven J.A., 141 AD2d 790, 791 [citation omitted], quoting Wiseman v American Motors Sales Corp., 103 AD2d 230, 235; see also Lewis v Baker, 279 AD2d 380, 380-381). Motion seeking leave to strike portions of the reply brief denied.