IN RE: Application of The CONCERNED TENANTS OF 823 PARK AVENUE

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of The CONCERNED TENANTS OF 823 PARK AVENUE, Petitioners-Respondents, For a Judgment, etc., v. Marcia SALBERG, et al., Respondents, New York State Division of Housing and Community Renewal, Respondent-Appellant, Robert Manocherian, etc., Intervenor-Respondent-Appellant.

Decided: June 28, 2001

ANDRIAS, J.P., LERNER, RUBIN, BUCKLEY and MARLOW, JJ. David Rozenholc, for Petitioners-Respondents. Sheldon Melnitsky, for Respondent-Appellant. Gary M. Rosenberg, for Intervenor-Respondent-Appellant.

Order and judgment(one paper), Supreme Court, New York County (Louis York, J.), entered February 7, 2001, which granted petitioner's motion pursuant to CPLR Article 23 to the extent of compelling respondent Marcia Salberg to comply with an attorney subpoena to appear and give testimony at an administrative hearing before the respondent-appellant New York State Division of Housing and Community Renewal, unanimously reversed, on the law, without costs, the petition denied, and the counterclaim to quash the subpoena granted.

 While the IAS court had subject matter jurisdiction to entertain the tenants' petition (CPLR 2308[b] ), it improperly granted the portion of the petition directing the witness, Marcia Salberg, to appear and testify at the administrative hearing.   The audit was not the sine qua non of the proceeding.   At issue was whether the owner could earn the required net annual return and whether the submitted economic data was reasonable and accurate.   The proposed witness's testimony would not be relevant to these issues since she merely analyzed the data and has no first-hand knowledge of its accuracy.   Therefore, the subpoena should be quashed.