WEST 16TH REALTY CO v. ALI (1998)

 In this non-primary residence holdover proceeding, respondent moves ¹ to quash two trial subpoenas served by petitioner on New York Telephone (hereinafter “Bell Atlantic”) and Greenpoint Bank.   These subpoenas seek, respectively, respondent's telephone records and statements of bank accounts of respondent and his wife.

 While an attorney of record for a party may issue subpoenas requiring the production of documents at a trial (see, CPLR 2301), it is well settled that “a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence.”  (Matter of Terry D., 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389 [1993].  See, Mestel & Co. v. Smythe Masterson & Judd, Inc., 215 A.D.2d 329, 627 N.Y.S.2d 37 [1st Dept.1995];  Soho Generation of NY, Inc. v. Tri-City Ins. Brokers, Inc., 236 A.D.2d 276, 653 N.Y.S.2d 924 [1st Dept.1997].)  “Rather, its purpose is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’.”  (Matter of Terry D., supra, at 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389 [quoting Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611, affd. for reasons stated at App.Div. 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392].)  A trial subpoena may not be used as a “fishing expedition” to obtain materials that could have been obtained in pretrial disclosure.  (See, Mestel & Co. v. Smythe Masterson & Judd, Inc., supra, at 330, 627 N.Y.S.2d 37.)

 Petitioner's subpoenas fail to comply with these standards.²  The subpoena directed to Greenpoint Bank seeks “statements for all checking and savings accounts” held by Freddie Ali and his wife, Ursilla Ali, from January 1, 1993 through the present.   Not only does this subpoena seek records of a non-party, Ursilla Ali, but its request for information as to the amount of funds held by respondent and his wife, and the amounts of withdrawals, deposits and paid checks is highly personal without being relevant to a primary residence analysis.

The subpoena directed to Bell Atlantic seeks the telephone company's entire file on “any telephone numbers” at three different premises in which respondent purportedly has an interest (244 West 16th Street, Apartment 4RW, New York, NY;  3538 Tryon Avenue, Bronx, NY;  and 280 Ninth Avenue, Apartment 7G, New York, NY), for the time period from January 1, 1993 to the present date, including “all information regarding billing,” “all usage information,” and copies of bills “[i]ncluding an itemization of all local and long distance calls” [emphasis in original] for unpublished numbers of respondent, his wife, and his son.

While some of the records sought may be relevant to petitioner's claim that the subject premises is not respondent's primary residence, the subpoenas go far beyond a request for specific identified documents and are clearly an attempt to gain discovery that petitioner failed to seek in the pre-trial phase of the proceeding.  (See, Soho Generation of NY, Inc. v. Tri-City Ins. Brokers, Inc., supra.)

Even if petitioner could now use subpoenas to obtain discovery (which it may not), the material requested in the subpoenas goes to private matters including, in the case of the bank subpoena, the financial resources of respondent and his wife;  and, in the case of the telephone company subpoena, the telephone numbers for every person called by respondent and his family.   The materiality of this information to petitioner's prosecution of its non-primary residence claim against respondent is, at best, tenuous.   Moreover, petitioner makes no attempt to limit the requests to take into account respondent's legitimate privacy concerns.   Petitioner thus fails to demonstrate the requisite “necessity and relevancy of this material sufficient to overcome the right to privacy” which respondent has in the information contained in the subpoenaed records.  (See, Dean Witter Reynolds, Inc. v. NYS Exec. Dept., Div. of Human Rights, 98 A.D.2d 676, 677, 469 N.Y.S.2d 412 [1st Dept.1983].)

 Further, where, as here, the requests are palpably overbroad, the court will not prune the requests to “cull the good from the bad.”  (See, Grotallio v. Soft Drink Leasing Corp., 97 A.D.2d 383, 468 N.Y.S.2d 4 [1st Dept.1983].)

Respondent's motions to quash the subpoenas are accordingly granted.

FOOTNOTES

1.   Respondent made two separate motions to quash the subpoenas served on Bell Atlantic and Greenpoint Bank.   The motions are consolidated for determination.

2.   Contrary to petitioner's suggestion in its memorandum of law, the appropriate standard to evaluate these subpoenas is, as stated in the text, the standard for trial subpoenas, not for discovery notices.   The court does not evaluate the subpoenas at issue under the broader standard for CPLR 3120 notices to produce documents.   Nothing on the face of the subpoenas indicates that they are intended to be 3120 notices.   Nor are they properly treated as such:  In summary proceedings, discovery is only allowed with leave of court.  (See, New York Univ. v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808 [Civ.Ct., N.Y. County 1983].)  Here, however, there is no claim that petitioner sought leave of court or that the court ordered discovery of a non-party in the form of notices to produce documents.

MARCY FRIEDMAN, Judge.