Sanderson v New York City Tr. Auth.

[*1] Sanderson v New York City Tr. Auth. 2007 NY Slip Op 51382(U) [16 Misc 3d 1111(A)] Decided on July 17, 2007 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2007
Supreme Court, Kings County

Pearl Sanderson, Plaintiff,

against

New York City Transit Authority and WILLIAM ROLON, Defendants.



4344/06



Plaintiff appeared ex parte by Jay W. Danker, Esq. of Danker & Milstein, P.C.

Jack M. Battaglia, J.

This Court, sitting in a "City Part" for actions involving the City of New York and the New York City Transit Authority, regularly receives ex parte applications for judicial subpoenas to nonparty City officers for either testimony or the production of records or both. For the most part, these applications are either unnecessary, or fail to comply with statutory procedural or substantive requirements. The confusion of counsel is understandable, because the requirements for nonparty disclosure from City officers appear in several provisions of the CPLR, which are not explicitly or clearly related to each other, and which fail to immediately advise counsel of what may or need be done for the purpose.

Plaintiff makes ex parte application for the issuance of four judicial subpoenas. Each of the subpoenas directs the appearance of a police officer of the New York City Police Department ("NYPD") for a nonparty deposition, as well as the production of the officer's memo book and any reports, statements or other written documents concerning the officer's investigation of an incident occurring on a specified date and at a specified location involving Plaintiff and a NYCTA bus. Because Plaintiff did not properly bring a motion on notice, as required by CPLR 2307, Plaintiff's ex parte application is denied.

Subpoenas For Testimony Served Upon a Nonparty Municipality or the State

Initially, it should be noted that a subpoena seeking solely the deposition of a police officer, without requiring the officer to bring any documents or any other things, need not be issued by the court, and does not require a motion. A subpoena seeking testimony is traditionally referred to as a subpoena ad testificandum; a subpoena seeking the production of documents and things is traditionally referred to as a subpoena duces tecum. On its face, CPLR 2307 requires a [*2]motion only for the issuance of a subpoena duces tecum, and does not refer to subpoenas ad testificandum. As such, serving a subpoena ad testificandum upon an officer of a "library, or a department or bureau of a municipal corporation or of the state" does not require a motion, and need not be "so-ordered."

In this regard, CPLR 2302(a) provides that a subpoena may be issued by "an attorney of record for a party to an action." CPLR 3106(b) provides that where "the person to be examined is not a party . . . , he shall be served with a subpoena," and "[u]nless the court orders otherwise, on motion with or without notice, such subpoena shall be served at least twenty days before the examination." So, in order for a party to take a nonparty deposition, the party must serve a subpoena on the nonparty at least twenty days prior to the deposition. As long as the party does not want to serve the subpoena less than twenty days before the deposition date, the issuer need not bring a motion.

In the event that a person or entity does not comply with the non-judicial subpoena ad testificandum, the issuer may seek to enforce the subpoena by bringing a motion as set forth in CPLR 2308(b).

Subpoenas for Documents and Things Served Upon a Nonparty Municipality or the State

Here, however, Plaintiff submits subpoenas in the form permitted by CPLR 3111, which allows a subpoena ad testificandum and a subpoena duces tecum to be joined for the purpose of having the nonparty witness appear at a deposition with the books, records and other things that would be marked as exhibits, and used for the deposition. (See CPLR 3111; see also Velez v Hunts Point Multi-Service Center, Inc., 29 AD3d 104, 108-109 [1st Dept 2006].) CPLR 3111 does not dispense with the motion-on-notice provisions of CPLR 2307 and CPLR 3120(4), to be discussed.

Since Plaintiff's subpoenas seek, in part, that NYPD officers produce various documents (a subpoena duces tecum), Plaintiff must abide by the procedures set forth in CPLR 2307 and CPLR 3120(4). 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 . . ."

Records maintained by the NYPD are within the ambit of CPLR 2307. The broad language of CPLR 2307 appears to include all officers and agencies of the state or a municipality. Several [*3]other courts, without expressly addressing the issue, imply that the records of state and municipal police departments are within CPLR 2307. (See, e.g., People v Burnett, 160 Misc 2d 1005, 1006-1007 [Sup Ct, New York County 1994]; People v Morrison, 148 Misc 2d 61, 62 [Crim Ct, New York County 1990]; People v Cabon, 148 Misc 2d 260, 268-269 [Crim Ct, New York County 1990]; People v Coleman, 75 Misc 2d 1090, 1090-1091 [Nassau County Ct, 1973].)

While CPLR 2307's motion-on-notice provision has been criticized as being "unnecessary in modern practice," and is "often ignored" (see People v Ehigie, 6 Misc 3d 1008[A], 2004 NY Slip Op 51754[U], *3 [Crim Ct, Bronx County 2004] [citing Siegel, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR C2307:1]; see also People v Santiago, 1999 NY Slip Op 40004[U]), other courts have expected "full compliance" with the motion-on-notice provision (see Matter of Bott, 125 Misc 2d 1029, 1032 [Monroe County Ct, 1984]), and declined to "thrust [themselves] into the role of the legislature" (see People v Owens, 182 Misc 2d 794, 797 [Monroe County Ct, 1999]; see also People v Coleman, 75 Misc 2d at 1091.) In any event, the criticisms of the motion-on-notice provision of CPLR 2307 fail to account for the fact that CPLR 3120(4), effective September 1, 2003, and providing for document disclosure demands addressed to nonparties, essentially reinforces the motion-on-notice provision of CPLR 2307. CPLR 3120(4) provides that nothing contained in CPLR 3120 "shall be construed to change the requirement of section 2307 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, requires a motion made on notice to the library, department, bureau or officer, and the adverse party, to a justice of the supreme court or a judge of the court in which the action is triable."

The Legislature's purpose in amending CPLR 3120 was to dispense with the requirement of a motion prior to issuance of a subpoena duces tecum on a nonparty. (See Velez v Hunts Point Multi-Service Center, Inc., 29 AD3d at 109.) The fact that the Legislature explicitly retained the motion-on-notice requirements of CPLR 2307 can lead to no other conclusion than that the court may not simply ignore them and entertain an ex parte application for 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." A motion providing at least one day's notice is required. In this way, the custodians of municipal and state records are not unnecessarily burdened by having to respond to subpoenas duces tecum issued ex parte without being given an opportunity to oppose the issuance of the subpoena or narrow its scope.

A Motion Pursuant to CPLR 2307

Although there are few cases setting forth what a movant must present to the court in support of a CPLR 2307 motion, it seems appropriate that the court should consider the same factors that the court would have considered on motions for the issuance of subpoenas duces tecum to be served upon nonparties prior to September 1, 2003, the effective date of the amendment of CPLR 3120 . (See, e.g., Belove v Chirichella, 12 Misc 3d 1180[A], 2006 NY Slip [*4]Op 51326[U], *1 [Sup Ct., Suffolk County 2006].)

As such, a movant must demonstrate "adequate special circumstances" in accordance with CPLR 3101(a)(4) and CPLR 3120. (See Post v Merrill Lynch, Pieerce, Fenner & Smith, Inc., 79 AD2d 558, 558 [1st Dept 1980].) The existence of special circumstances is established by showing, among other things, that the information sought is material and relevant, and that the information cannot be obtained through other sources. (See Tannenbaum v Tenenbaum, 8 AD3d 360, 360 [2d Dept 2004].) Should the nonparty or any other party submit opposition to the motion, the papers may be treated as if they were a motion to quash the subpoena or for a protective order. (See People v Coleman, 75 Misc 2d at 1091.)

Accordingly, Plaintiff's ex parte application seeking the issuance of four judicial subpoenas to be served upon nonparty police officers is denied, without prejudice to Plaintiff's bringing a motion in accordance with this decision or serving non-judicial subpoenas ad testificandum. A copy of this decision is being mailed to the four police officers, as well as the parties.

July 17, 2007___________________

Jack M. Battaglia

Justice, Supreme Court