Reyes v Riverside Park Community (Stage I), Inc.

Reyes v Riverside Park Community (Stage I), Inc. 2009 NY Slip Op 01012 [59 AD3d 219] February 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 1, 2009

Naomi Reyes, Respondent,
v
Riverside Park Community (Stage I), Inc., et al., Appellants, et al., Defendants.

—[*1] Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Alfred L. D'Isernia, III of counsel), for appellants.

Madeline Lee Bryer, New York, for respondent.

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.

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 [1988] [citation omitted], quoting Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 [1984]; see also Lewis v Baker, 279 AD2d 380, 380-381 [2001]).

Motion seeking leave to strike portions of the reply brief denied.

Concur—Tom, J.P., Saxe, McGuire, Moskowitz and Freedman, JJ.