REYES v. Riverside Maintenance Corp., et al., Defendants. (2009)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 23, 2008, which denied defendants-appellants' motion for an order directing the issuance of a commission pursuant to CPLR 3108 to examine a nonparty witness in California, unanimously affirmed, with costs.

The motion court properly denied the motion since “absent allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that ‘the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination’, the [appellants have] failed to demonstrate that a commission is “ ‘necessary or convenient’ ” ” (Susan A. v. Steven J.A., 141 A.D.2d 790, 791, 529 N.Y.S.2d 867 [1988] [quoting Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 235, 479 N.Y.S.2d 528 (1984) ];  see also Lewis v. Baker, 279 A.D.2d 380, 380-381, 720 N.Y.S.2d 26 [2001] ).