SMITH v. 100 (2025)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about April 3, 2024, which, to the extent appealed from, granted defendants’ motion to compel nonparty appellant union's compliance with a subpoena duces tecum, unanimously affirmed, without costs.

In arguing that defendants did not properly serve the motion on it, the union relies on a statutory provision that is no longer in effect (see former CPLR 3120[b];  compare Velez v. Hunts Point Multi–Serv. Ctr., Inc., 29 A.D.3d 104, 109, 811 N.Y.S.2d 5 [1st Dept. 2006] with Blake v. LP 591 Ocean Realty, 237 A.D.2d 554, 554, 655 N.Y.S.2d 635 [2d Dept. 1997]).  Moreover, the union does not contest proper service of the subpoena itself.  Plaintiff's counsel, which represented the union in responding to the subpoena by providing a redacted document and a privilege log, received the subpoena directly from the union and failed to object to jurisdiction in response to a prior motion to compel.  Under these circumstances, the union “waived its objection based on personal jurisdiction” (Peters v. Peters, 127 A.D.3d 656, 657, 8 N.Y.S.3d 297 [1st Dept. 2015];  see also Benson Park Assoc. LLC v. Herman, 93 A.D.3d 609, 609, 941 N.Y.S.2d 108 [1st Dept. 2012]).

The union otherwise fails to demonstrate that the motion to compel amounted to harassment or annoyance (see CPLR 3103[a];  Jones v. Maples, 257 A.D.2d 53, 56–57, 691 N.Y.S.2d 429 [1st Dept. 1999]).  Defendants moved to compel because the union failed to comply with a prior order to turn over relevant and material documents sought pursuant to the subpoena duces tecum.  Accordingly, it was not an impermissible successive motion seeking relief that was previously denied (see e.g. Nunez v. Yonkers Racing Corp., 218 A.D.3d 480, 481, 192 N.Y.S.3d 530 [2d Dept. 2023]).

We have considered the union's remaining contentions and find them unavailing.

Motion by defendants seeking permission for nonparty Sandra Lennon to withdraw her appeal, pursuant to stipulation, and to vacate the stay issued by this Court on July 11, 2024 insofar as it applies to Lennon's deposition testimony pending determination of the appeals, granted to the extent of allowing withdrawal of the appeal, and otherwise denied as academic.