[*1]
SP 10 Downing LLC v Kay Yee
2008 NY Slip Op 52005(U) [21 Misc 3d 1107(A)]
Decided on October 3, 2008
Civil Court Of The City Of New York, New York County
Marton, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 3, 2008
Civil Court of the City of New York, New York County


SP 10 Downing LLC, Petitioner,

against

Kay Yee et al., Respondents




103948/06



Petitioner's counsel

Kossoff & Unger

217 Broadway, Suite 401

New York, New York 10007

212-267-6364

Respondent's counsel

Alterman & Boop LLP

35 Worth Street

New York, New York 10013

212-226-2800

Gary F. Marton, J.



This is a holdover proceeding. The premises at issue is a rent-stabilized apartment. Petitioner alleges that respondent does not occupy the same as her primary residence. Discovery has been taken. Now, petitioner moves to restore the proceeding to the court's calendar for trial, and in one motion respondent moves to quash a subpoena and in another motion respondent moves to quash another six subpoenas. As set out below, the three motions are granted.

Petitioner moved to restore by a notice dated May 29, 2008 that fixed June 26, 2008 at the return date. The motion is unopposed and it is granted by restoring this proceeding to the calendar for trial on Thursday November 20, 2008 at 9:30 am.

On June 19, 2008, i.e., roughly three weeks after moving to restore for trial, petitioner served a trial subpoena duces tecum on a Jacksonville, Florida branch of Merrill Lynch Pierce Fenner and Smith. The subpoena required the production of records at the instant courthouse by 9:30 am on June 26, 2008. Petitioner served [*2]the subpoena on Merrill Lynch by overnight mail. Petitioner served a copy of the subpoena on respondent's counsel not on June 19, 2008 but on June 23, 2008, and not by overnight mail but by first class mail. Respondent moves to quash this subpoena.

On June 20, 2008 petitioner served by hand a subpoena duces tecum on AT & T; on June 23, 2008 petitioner served by mail a copy of this subpoena on respondent's counsel. This subpoena called for the production of documents on June 25 [sic], 2008. On June 23, 2008 petitioner served by hand subpoenas duces tecum on Consolidated Edison and on Emigrant Savings Bank; on June 25, 2008 petitioner served by hand a copy of these subpoenas on respondent' counsel. These subpoenas called for the production of documents on June 26, 2008. On June 25, 2008 petitioner served by hand subpoenas duces tecum on HSBC Mortgage Corp., Time Warner Cable, and Verizon New York Inc.; on June 25, 2008, petitioner served by hand a copy of these subpoenas on respondent's counsel. These subpoenas called for the production of documents by June 26, 2008. It is uncontested that the copies of subpoenas served by hand on June 25, 2008 were served at 4:32 pm. Respondent moves to quash these subpoenas as well.

Through 2003, a trial subpoena duces tecum could be issued and served without notice to other parties; as a consequence, the issuing attorney would often have the opportunity to view the subpoenaed items ex parte. The Legislature thought this unfair; to remedy the same, and to ensure that an opposing party would have a meaningful opportunity to seek judicial relief, the CPLR was amended[FN1]. Now CPLR § 2303(a) provides that a party who serves such a [*3]subpoena must also serve a copy "on each party who has appeared * * * so that it is received by such parties * * * before the production of books, papers or other things."

CPLR § 2303(a) requires service pursuant to CPLR 2103. With respect to service by mail, CPLR 2103(b) provides, in pertinent part, that "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period * * *" Here, there was a period of time prescribed by law, i.e., the period ending with the time and date for the production of documents, i.e., 9:30 am on June 26, 2008. The service by mail on June 23, 2008 was not five days in advance of June 26, 2008 and therefore did not meet this statutory requirement. For this reason, the court grants respondent's first motion, which seeks to quash the subpoena served on Merrill Lynch, and so much of the second motion as seeks to quash the subpoena served on ATT.

Petitioner served the other five subpoenas at the close of business on the day before the subpoenaed documents were to be produced at 9:30 am. From a practical if not a theoretical point of view, such service does not leave sufficient time for an opposing party to move to quash. Such service, the court holds, is at odds with the statutory purpose[FN2]. The court grants respondent's second motion to [*4]the extent that it seeks to quash the subpoenas served on Consolidated Edison, Emigrant Savings Bank, HSBC Mortgage Corp., Time Warner Cable, and Verizon New York Inc.

In light of this result, the court finds it unnecessary to reach respondent's other arguments as to the legal insufficiency of the subpoenas.

The court will mail copies of this decision and order to the parties.

DATED: October 3, 2008New York, New York

Gary F. Marton, J.H.C.

Footnotes


Footnote 1:In pertinent part, the legislative memorandum in support provides: "The purpose of this bill is to ensure fundamental fairness and due process in connection with the issuance of a subpoena in a pending action by requiring service of a copy of the subpoena dues tecum on the other parties to the action. * * * * As currently written, a trial subpoena duces tecum may be issued and served without any notice to the other parties whatsoever. In many counties, subpoenas duces tecum are made returnable at a "records" room well in advance of a trial. Once delivered to the Court House, the issuing attorney may view the subpoenaed documents ex parte. This quasi-discovery practice allows the issuing attorney to obtain documents that were not sought during the discovery state * * * * So records relating to a party could be perused without giving the party an opportunity to object to their production via subpoena. Because such subpoenas duces tecum can be served with no notice to the opposing party whatsoever that party has no opportunity to seek judicial relief under CPLR 2304 (motion to quash). Hence, there is an opportunity for serious abuse. * * * * Advance notice of the issuance of subpoenas duces tecum will allow disputes regarding the subpoenaed material to be resolved in advance of the actual trial and allow the trial to proceed more efficiently." Sponsor's Mem in support, L 2003, ch 547, 2003 NY Legis Ann, at 295.

Footnote 2:Cf, ATM One, LLC v Landaverde, 2 NY 3rd 472, 478 (2004) where the court held that even though there is not an explicit statutory requirement to provide additional time when a statutory 10 day notice to cure is served by mail instead of by hand, a landlord who serves such a notice by mail must, so as to ensure that the tenant is "not disadvantaged by the owner's choice of service method" and has the full period in which to cure the alleged violation, add 5 days and serve the notice at least 15 days before the deadline to cure.