CARMO v. VERIZON (2006)

In an action, inter alia, to recover damages for failure to comply with a subpoena, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered May 17, 2004, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleged that the defendant, despite being served with a subpoena duces tecum, refused to appear and provide information on his behalf in a criminal action then pending against him in the State of New Jersey.   The plaintiff claimed that by reason of the defendant's failure to comply with the subpoena, he was unable to successfully defend himself against the criminal charges, and sustained damages.

The defendant established its prima facie showing of entitlement to summary judgment by demonstrating that the damages claimed by the plaintiff were entirely speculative (see Shaw v. Brisman, 179 A.D.2d 459, 578 N.Y.S.2d 189).   In response, the plaintiff failed to submit any competent evidence tending to establish a factual issue as to whether the damages claimed were causally related to the acts of the defendant (see Barkan v. Barkan, 271 A.D.2d 466, 706 N.Y.S.2d 902;  see also Dombrowski v. County of Nassau, 230 A.D.2d 705, 646 N.Y.S.2d 162).