Peters v Peters

Peters v Peters 2014 NY Slip Op 04583 Decided on June 19, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 19, 2014
Tom, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
12838N 600456/04

[*1] Frances C. Peters, Plaintiff-Appellant,

v

George Christy Peters, et al., Defendants-Respondents.

Leslie Trager, New York, for appellant.

Law Offices of Howard Benjamin, New York (Howard Benjamin of counsel), for respondents.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about November 23, 2012, which granted defendants' motion to quash plaintiff's nonparty subpoenas to the extent of quashing the subpoenas served on Colonial Navigation Company Inc. (Colonial) and Cardillo & Corbett, Esqs. and limiting the subpoena served on Newman & Cahn, LLP, unanimously reversed, on the law and in the exercise of discretion, without costs, and the motion denied.

The amended complaint sets forth allegations of conversion with respect to the purchase of a ship known as the M/V Athena, the principal asset of nonparty Sea Trade Maritime Corporation. It is alleged in the amended complaint that Colonial was the managing agent of the Athena. According to the deposition of defendant George Christy Peters, the two law firms mentioned above were the attorneys for Sea Trade. In light of the foregoing, it has been demonstrated that the discovery sought by way of the subject subpoenas is "material and necessary" under CPLR 3101 (4) insofar as it is relevant to the prosecution of plaintiff's claims (see Matter of Kapon v Koch, __NY3d__, 2014 NY Slip Op 02327, *4-*5 [2014]). Accordingly, the motion court abused its discretion in granting the motion.

We reject defendants' argument that the doctrine of law of the case calls for a different result. Here, defendants erroneously rely on a prior order dismissing certain claims set forth in the original complaint for failure to state a cause of action. Because the original complaint was superseded by the amended complaint, the sufficiency of the allegations in the earlier complaint [*2]is rendered academic (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005]). Defendants' assertion that plaintiff's claims lack merit is equally unavailing for purposes of the instant discovery motion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 19, 2014

CLERK