BRONXBOROUGH MEDICAL v. TRAVELERS INSURANCE CO

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Supreme Court, Appellate Term, New York.

BRONXBOROUGH MEDICAL, P.C. as assignee of Mohamad Nazir, Appellant, v. TRAVELERS INSURANCE CO., Respondent.

Decided: September 10, 2008

Present:  PESCE, P.J., RIOS and STEINHARDT, JJ. Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Law Office of Karen C. Dodson, Melville (Janine Gentile of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 7, 2007.   The order denied plaintiff's motion to serve a subpoena on the defendant outside the City of New York compelling the production of an employee at the trial.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CCA 1201, for leave to serve a subpoena on defendant outside the City of New York compelling the production of an employee of defendant to testify at the trial.   The lower court found that plaintiff did not offer a valid reason to allow service of a subpoena outside the jurisdiction. Plaintiff appeals from the order denying its motion.

In an action pending in the Civil Court of the City of New York, a subpoena may not be served outside the City of New York and the adjoining counties unless the Civil Court, upon a motion establishing to the satisfaction of the court that the interests of justice would be served thereby, permits service of such a subpoena (see CCA 1201).   Inasmuch as plaintiff's moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant's employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff's motion was properly denied.

To the extent that plaintiff argues that defendant's response to its notice to admit was improper, the court below properly noted that plaintiff's remedy lies in the procedure set forth in CPLR 3123(c).