GREENFIELD v. LYONS

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

Margaret GREENFIELD, Plaintiff-Appellant, v. Andrea J. LYONS, etc., Defendant-Respondent.

Decided: April 29, 1997

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, RUBIN and ANDRIAS, JJ. David Arens, for Plaintiff-Appellant. Eric B. Schultz, for Defendant-Respondent.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered April 10, 1996, which, insofar as appealed from, denied plaintiff's motion to amend the complaint to add causes of action against defendant and her attorneys alleging issuance of improper subpoenas, and to disqualify the attorneys, unanimously affirmed, without costs.

 The proposed amendment was properly rejected for lack of merit (see, Wieder v. Skala, 168 A.D.2d 355, 563 N.Y.S.2d 76).   Defendant's subpoenas to the telephone company for reproduction of records of calls made from plaintiff's home and business phones (apparently never provided) did not seek communications prohibited by 47 U.S.C. § 605 (see, United States v. Covello, 410 F.2d 536, 542, cert. denied 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136), and such records were not otherwise privileged.   Accordingly, any improper conduct by counsel in issuing the subpoenas without the court authorization required by CPLR 3120(b) could not have resulted in any unfair advantage to defendant or damage to plaintiff (see, Estate of Kochovos, 140 A.D.2d 180, 528 N.Y.S.2d 37).   We would add that the allegations concerning the distress suffered by plaintiff's husband as a result of the subpoenas cannot be entertained in his absence as a party.   We have considered plaintiff's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.