Abdul Wahab, plaintiff-respondent, v. LLC LLC (2013)

Submitted—March 19, 2013

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), dated November 30, 2011, which granted the separate motions of the plaintiff and the third-party defendant pursuant to CPLR 2304 to quash a subpoena duces tecum served by the defendants third-party plaintiffs.

ORDERED that the order is affirmed, without costs or disbursements.

“[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence” (Matter of Terry D., 81 N.Y.2d 1042, 1044;  see Matter of Board of Educ. of City of New York v Hankins, 294 A.D.2d 360).   Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure.   Under these circumstances, the Supreme Court properly granted the separate motions of the plaintiff and the third-party defendant to quash the subpoena duces tecum (see Matter of Terry D., 81 N.Y.2d 1042, 1044;  American Exp. Property Cas. Co. v Vinci, 63 AD3d 1055, 1056;  Matter of Board of Educ. of City of New York v Hankins, 294 A.D.2d 360).

DILLON, J.P., ANGIOLILLO, AUSTIN and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court