Markel v Pure Power Boot Camp, Inc

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[*1] Markel v Pure Power Boot Camp, Inc 2017 NY Slip Op 51582(U) Decided on November 8, 2017 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2017
Supreme Court, New York County

Stephanie Markel, Plaintiff,


Pure Power Boot Camp, Inc. and LAUREN BRENNER, Defendants.



Buzin Law, P.C.

501 Seventh Avenue, Suite 520

New York, New York 10018

By: Andrew S. Buzin, Esq.

For Defendant:

Havkins Rosenfeld Ritzert & Varriale, LLP

170 Hamilton Avenue, Suite 210

White Plains, New York 10601

By: Carmen Nicolaou, Esq.
Robert R. Reed, J.

In this personal injury action, plaintiff seeks to quash a subpoena duces tecum, dated March 20, 2017, that defendants served on Julie Kelly-Voicu. The subpoena commands that Kelly-Voicu produce, by April 20, 2017, certain documents, including:

"any and all documents, including correspondence, notes, reports, memoranda, photographs and any other relevant material in your possession which have or may contain information concerning the independent medical examination of plaintiff, that took place with Dr. William Kulak, on February 3, 2017."

Plaintiff's counsel retained IME Watchdog to provide an observer to accompany plaintiff to her independent medical examination (IME). Kelly-Voicu was the observer assigned to accompany plaintiff.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof...." CPLR 3120 permits a party to serve a subpoena duces tecum on any other party or any other persons after the commencement of an action (CPLR 3120[1]). A motion to quash a subpoena duces [*2]tecum should be granted "[o]nly where the futility of the process to uncover anything legitimate is inevitable and obvious" (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-32 [1998]). The moving party bears the burden of establishing that the subpoena should be vacated under the circumstances (Matter of Kapon v Koch, 23 NY3d 32, 36 [2014]). "The burden of establishing that the documents sought are covered by a certain privilege rests on the party asserting the privilege" (Anonymous v High School for Envtl. Studies, 32 AD3d 353, 359 [2006]).

In support of her motion, plaintiff argues that defendants should not be permitted to depose this non-party witness because the information sought by subpoena can be obtained from defendants' independent medical examiner. Plaintiff also argues that the subpoena should be quashed because the material requested constitutes attorney work product.

Plaintiff fails to meet its burden of establishing that the documents sought in the subpoena are irrelevant to this action. As noted above, the subpoena seeks all documents and reports related to the non-party's observations of the IME of plaintiff — which would certainly appear relevant and material. Plaintiff's unsupported assertion regarding plaintiff's counsel's relationship with IME Watchdog, and her conclusory claim of work product privilege as to the materials prepared thereunder, moreover, are not enough to satisfy plaintiff's burden on this motion. That the information sought might also be obtained from defendants' independent medical examiner also doesn't defeat defendants' right to pursue the non-party's information — and such non-party's potentially alternative factual perspective — by way of lawfully issued subpoena.

Accordingly, it is hereby

ORDERED that the motion to quash the subpoena served on non-party Julie Kelly-Voicu and for a protective order is denied; and it is further

ORDERED that counsel are directed to appear for a status conference in Part 43, Room 581, at 111 Centre Street, on December 7, 2017, at 2:30 p.m.

This constitutes the decision and order of the court.

Dated: November 8, 2017