IN RE: Joseph W. PLATER (1998)

Appeal from an order of the Supreme Court (O'Brien III, J.), entered November 19, 1997 in Cortland County, which, inter alia, denied petitioner's application pursuant to CPLR 2302(b) for the issuance of a subpoena duces tecum.

 Petitioner, acting pro se, brought a motion before Supreme Court pursuant to CPLR 2302(b) seeking the issuance of a subpoena duces tecum directing respondent to produce certain medical records pertaining to two witnesses who testified against him at his criminal trial.   Petitioner sought this information in connection with a contemplated CPL 440.10 motion.   Supreme Court denied the motion and we affirm.   Generally speaking, “[a] judicial subpoena is not issued in the abstract, but ‘requires the context of some action or proceeding’ ” (People v. Weiss, 176 Misc.2d 496, 499, 671 N.Y.S.2d 604, quoting Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C2301:4, at 236;  see, People v. Jones, 160 Misc.2d 246, 248, 608 N.Y.S.2d 795;  Matter of Blake's Estate, 51 Misc.2d 42, 272 N.Y.S.2d 597).  Here, there is no pending judicial proceeding and it is well settled that a subpoena duces tecum may not be used for the purpose of discovery (see, People v. Carpenter, 240 A.D.2d 863, 864, 658 N.Y.S.2d 542, lv. denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226;  People v. Jones, supra, at 248, 608 N.Y.S.2d 795).

ORDERED that the order is affirmed, without costs.

MEMORANDUM DECISION.