KEY BANK OF NEW YORK v. DEMBS (1997)

Because the subpoenas at issue are not part of the record, we cannot review the contentions of Renald E. Dembs (defendant) that Supreme Court erred in quashing the subpoena served upon David Peatfield and in failing to compel Steven Pierce to produce corporate records pursuant to a subpoena served upon him (see, Solomon v. Solomon, 206 A.D.2d 971, 972, 615 N.Y.S.2d 949;  see also, People v. Peak, 214 A.D.2d 1012, 1013, 626 N.Y.S.2d 605, lv. denied 86 N.Y.2d 800, 632 N.Y.S.2d 513, 656 N.E.2d 612).   Moreover, the record establishes that defendant impermissibly issued the subpoena to Pierce during trial for the purpose of discovery, including whether certain documents exist (see, Matter of Terry D., 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389;  Matter of State of New York Office of Mental Retardation & Dev. Disabilities v. Mastracci, 77 A.D.2d 473, 475, 433 N.Y.S.2d 946).

There is no merit to defendant's contention that the testimony of plaintiff's appraiser was “manifestly untrue, physically impossible, contrary to experience or self-contradictory” and thus incredible as a matter of law (Matter of Welcher v. Sobol, 227 A.D.2d 770, 772, 642 N.Y.S.2d 370).  Although defendant asserts that adjustments made by the appraiser to certain comparable sales are different from adjustments he made to those same sales in an earlier appraisal of the same property, defendant did not cross-examine the appraiser concerning those discrepancies or call the court's attention to those discrepancies during summation.   Further, we conclude that there is no basis to disturb the court's resolution of credibility issues (see, Cushman & Wakefield v. 214 E. 49th St. Corp., 218 A.D.2d 464, 467-468, 639 N.Y.S.2d 1012, appeal dismissed 88 N.Y.2d 951, 647 N.Y.S.2d 708, 670 N.E.2d 1339, lv. denied 88 N.Y.2d 816, 651 N.Y.S.2d 406, 674 N.E.2d 336).

Order unanimously affirmed without costs.

MEMORANDUM: