LEVY v. GRANDONE

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

David LEVY, respondent, v. Cheryl GRANDONE, appellant.

Decided: June 28, 2004

NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Anthony M. Bramante, Brooklyn, N.Y., for appellant. Giancarlo Terilli, LLC, New York, N.Y. (Howard Weiswasser of counsel), for respondent.

In an action, inter alia, to recover damages for malicious prosecution, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Hubsher, J.), dated May 5, 2003, as denied her motion to quash certain subpoenas duces tecum served upon various nonparties and to disqualify the plaintiff's counsel.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, the Supreme Court properly denied the defendant's motion to quash the subpoenas duces tecum served upon the nonparty telephone company and management company which managed the defendant's residence.

Although the documents were improperly obtained from the nonparties without a motion on notice to the defendant (see former CPLR 3120[b] ), the defendant was not thereby prejudiced due to subsequent events.   None of the documents obtained was privileged, and the plaintiff would have been entitled to their production in the normal course of discovery.   Therefore, neither suppression of those documents pursuant to CPLR 3103(c) nor the disqualification of counsel for the plaintiff was warranted (see Fanelli v. Fanelli, 296 A.D.2d 373, 745 N.Y.S.2d 435;  Gutierrez v. Dudock, 276 A.D.2d 746, 715 N.Y.S.2d 333;  Hanover Ins. Co. v. Ceriello Elec., 226 A.D.2d 585, 586, 641 N.Y.S.2d 363;  DiMarco v. Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692).

Contrary to the respondent's contention, under the circumstances of this case, the imposition of a sanction is inappropriate (see 22 NYCRR 130-1.1 [c] ).

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