theCPLRblog

Supplemental BP is not a disclosure device: CPLR § 3102

CPLR § 3102 Method of obtaining disclosure

Kellerson v Asis, 2011 NY Slip Op 01191 (App. Div., 4th 2011)

We reject defendant's further contention that plaintiffs improperly served a supplemental bill of particulars after the note of issue was filed and defendant had moved for summary judgment dismissing the complaint. "A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than [30] days prior to trial," so long as the continuing damages and disabilities are an anticipated sequelae of the injuries described in the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello, 58 NY2d 84, 86-87). Here, plaintiffs' supplemental bill of particulars merely expanded upon the continuing disabilities alleged in the original bill of particulars and did not set forth a new legal theory of liability or new injuries (see Tate, 58 NY2d at 87). Early on in treatment, plaintiff's orthopedic surgeon specifically mentioned the possibility of a meniscal tear, and plaintiffs disclosed that statement in the original bill of particulars. Defendant contends that plaintiffs were not permitted to serve a supplemental bill of particulars after she had moved for summary judgment because her motion effectively stayed disclosure (see CPLR 3214 [b]). That contention is without merit inasmuch as a supplemental bill of particulars is not a disclosure device pursuant to CPLR 3102 (a).

3102 Pre-Action Discovery

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Champion v Metropolitan Tr. Auth., 2010 NY Slip Op 01585 (App. Div., 1st, 2009)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 29, 2009, which granted petitioner's motion for pre-action discovery to the extent of directing that respondents provide certain discovery and inspection of evidence within 30 days of service of a copy of the order, and continuing the stay in the order to show cause prohibiting respondents from altering, changing, repairing, servicing, modifying, moving, selling or in any other way disposing of any vehicle(s) and/or plow(s) utilized by respondents for any snow removal operations on the date of the hit and run motor vehicle accident at or near the subject intersection, unanimously modified, on the law, to strike the direction that respondents produce items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n), limit the production of items 2(b), (c) and (o) to materials concerning the designated area between the hours of 9 a.m. and 11 a.m., and vacate the stay, and otherwise affirmed, without costs.

While petitioner has alleged sufficient facts to support her claim that respondents were negligent in operating the motor vehicle that caused her injury, she has failed to allege any facts supporting her negligent maintenance claim. Petitioner's requests for items 2(d), (e), (f), (g), (h), (j), (k), (m) and (n) serve no purpose other than to determine whether facts exist to support a cause of action related to a defect in the motor vehicle or the attached plow, which is not an appropriate use of CPLR 3102(c) (see Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347-348 [2000]). Because petitioner has not offered facts sufficient to support a negligent maintenance claim or any other claim that would require respondents' vehicles and plows to be produced or inspected, the IAS court's stay should be vacated.

Petitioner's requests for items 2(b), (c) and (o) are material and necessary to petitioner's viable negligent operation claim, because they will assist her in identifying prospective defendants, particularly the operator of the motor vehicle, and in framing her complaint (see Christiano v Port Auth. of N.Y. & N.J., 1 AD3d 289, 289 [2003]). However, the order was overly broad with respect to those items, because there was no time limitation (id.). Since [*2]petitioner sought disclosure regarding an accident that allegedly occurred around 10:00 a.m., the order should be modified as indicated above.

The bold is mine.

The Google blogger case; CPLR § 3102(c) pre-suit discovery

This case has been in the headlines in the past few weeks.  For those that don't know, an anonymous blogger posted some less than nice things on her blog.  Petitioner found those posts, was hurt and angry, and wanted to find out who said those things.  And of course she wanted to sue for defamation.  But to sue, she would need to know the anonymous blogger's identity.  So she used New York's procedural device to receive pre-suit discovery: CPLR § 3102(c).  She requested that the Court order Google to give up information as to the blogger's identity.  Prior to the action, Google refused to divulge any information without a court order.  And, it objected to petitioner's request as being overbroad, vague, etc. We'll get to the decision in a minute.

While all of us (me) here at the CPLR blog are interested in the procedural niceties of the decision, there is more at stake.  The decision and its implications have been discussed in detail all over the interweb.  Check out Simple Justice and Concurring Opinions for some discussion of this case as it relates to the big picture: the First Amendment. 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Cohen v Google Inc., 2009 NY Slip Op 29369 (Sup. Ct., New York County, 2009)

In opposing petitioner's application, the Anonymous Blogger contends that petitioner is not entitled to pre-action discovery because she cannot demonstrate a meritorious claim for defamation. The Anonymous Blogger asserts that the statements on the Blog, which appear as captions to provocative photographs which the Blogger alleges were posted by petitioner herself,^[FN4] [*3]are "non-actionable opinion and/or hyperbole," and that no reasonable viewer of the Blog would conclude that the statements referring to petitioner purport to convey verifiable statements of fact. The Blogger argues that the words "skank" and "ho" are not statements of objective fact which can be proven true or false; rather, the words are used in a "loose hyperbolic" manner, and "have become a popular form of trash talk' ubiquitous across the Internet as well as network television and should be treated no differently than jerk' or any other form of loose and vague insults that the Constitution protects." The Blogger further argues that even if the words are capable of a defamatory meaning, "the context here negates any impression that a verifiable factual assertion was intended," since blogs "have evolved as the modern day soapbox for one's personal opinions," by "providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for voicing gripes, leveling invective, and ranting about anything at all."

The law in New York governing pre-action discovery is well settled. CPLR 3102(c) requires a court order for pre-action disclosure to aid in bringing an action or to preserve information. See Matter of Uddin v. New York City Transit Authority, 27 AD3d 265, 266 (1st Dept 2006). When a party seeks pre-action disclosure to secure additional information necessary to frame a complaint or to identify the proper defendant with respect to a known cause of action, "courts traditionally require a strong showing that a cause of action exists." Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3102:5 at 92. " A petition for pre-action discovery should only be granted when the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.'" Matter of Uddin v. New York City Transit Authority, supra at 266 (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 AD2d 346, 347 [1st Dept 2000]); accord Matter of Peters v. Southeby's Inc., 34 AD3d 29, 34 (1st Dept 2006), lv app den 8 NY3d 809 (2007); Matter of Bliss v. Jaffin, 176 AD2d 106, 108 (1st Dept 1991); Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 (2nd Dept 1985). "As a general rule, the adequacy of merit rests within the sound discretion of the court.'" Matter of Peters v. Southeby's Inc., supra (quoting Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]).^[FN5] [*4]

Here, petitioner is entitled to pre-action disclosure of information as to the identity of the Anonymous Blogger, as she has sufficiently established the merits of her proposed cause of action for defamation against that person or persons, and that the information sought is material and necessary to identify the potential defendant or defendants. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra . The elements of a cause of action for defamation "are a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se." Dillon v. City of New York , 261 AD2d 34, 38 (1st Dept 1999); accord Salvatore v. Kumar, 45 AD3d 560, 563 (2nd Dept 2007), lv app den 10 NY3d 703 (2008). The Anonymous Blogger's contention that the statements about petitioner on the Blog are protected opinion or hyperbole which is not actionable, raises an issue as to the first element which requires a statement of fact as opposed to opinion.

The Court found that the the words used "can be understood to describe the petitioner as sexually promiscuous; that the statements are facts that can be proven true or false; and that the words used can be "reasonably susceptible to a defamatory connotation, as opposed to a word like "jerk."

The Court continues:

The court also rejects the Anonymous Blogger's argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights." In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va Cir Ct), revd on other gds, 261 Va 350, 542 SE2d 377 (Va Sup Ct 2001) (quoted in Public Relations Society of America, Inc. v. Road Runner High Speed Online, supra ).

Thus, in light of the merits of petitioner's proposed cause of action for defamation, and the materiality and necessity of the requested information, petitioner is entitled to an order pursuant to CPLR 3102(c) directing respondent Google to disclose the information as to the identity of the Anonymous Blogger. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .

Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition is granted and respondent Google, Inc. and/or its subsidiary Blogger.Com, shall forthwith provide petitioner with information as to the identity of the Anonymous Blogger(s), specifically that person's or persons' name(s), address(es), email address(es), IP address(es), telephone number(s), and all other information that would assist in ascertaining the identity of that person or persons.

Footnote No. 5 offers an interesting comparison between New York and New Jersey law as to when the "identity of an anonymous Internet speaker should be disclosed to a potential plaintiff."

The blogger was outed soon after the decision.  There was no appeal.

CPLR R. 3108 Court declines to issue commision to compel deposition of out of state witness

CPLR R. 3108 Written questions; when permitted

Hinds v Fischer, 2009 NY Slip Op 51594(U) (App. Term, 1st, 2009)

The motion court did not improvidently exercise its broad discretion in the supervision of discovery-related matters (see Red Apple Supermarkets, Inc. v Malone & Hyde, Inc., 251 AD2d 78 [1998]) by denying defendant's eleventh-hour motion to take the deposition of several nonparty witnesses in Connecticut. Viewing the pro se defendant's application as one seeking the issuance of a commission pursuant to CPLR 3108, the motion was properly denied in the absence of any showing that "the proposed out-of-State deponent[s] would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness[es] to attend the examination[s]'" (Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219 [2009], quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 [1984]).

We also sustain the denial of that branch of defendant's motion for discovery of plaintiff's medical records pertaining to plaintiff's physical condition (including "AIDS, sexually transmitted diseases [and] alcohol and/or substance abuse"), since such records are privileged and are not "material and necessary" to the defense of plaintiff's sole remaining defamation cause of action (CPLR 3101[a]; see generally Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). Defendant's remaining discovery request has been rendered moot.

Keep in mind that defendant is pro se, the "eleventh-hour" timing, and that the matter is in civil court. 

Even if the lower court issued a commission, a Connecticut court would have to enforce it.  For an interesting example of a New York court being asked to enforce an out of state commission, click here.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party "by designating so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a "Jane Doe" defendant was under no particular time deadline for ascertaining the unknown party's identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against "Jane Doe" defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown "Jane Doe" parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming "Jane Doe" defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon non-parties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a "Jane Doe" is the only named defendant in an action, the timely identification of the party's true identity for service of process is even more challenging.

The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the "good cause" and "interest of justice" exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.

The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party's reliance upon "good cause" or the "interest of justice" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102(c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102[c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify of the unknown party, is the Freedom of Information Law (Public Officers Law art 8, hereinafter FOIL). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service extension under CPLR 306-b, which is discretionary on the part of the court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

II. The Interplay of CPLR 1024 and 306-b

The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party "by designating so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

The use of CPLR 1024 presents many pitfalls. One pitfall is that parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a "Jane Doe" defendant was under no particular time deadline for ascertaining the unknown party's identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against "Jane Doe" defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown "Jane Doe" parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming "Jane Doe" defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320[a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon non-parties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a "Jane Doe" is the only named defendant in an action, the timely identification of the party's true identity for service of process is even more challenging.

The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the "good cause" and "interest of justice" exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.

The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party's reliance upon "good cause" or the "interest of justice" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102(c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102[c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify of the unknown party, is the Freedom of Information Law (Public Officers Law art 8, hereinafter FOIL). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

Furthermore, if the plaintiff is truly at the mercy of a service extension under CPLR 306-b, which is discretionary on the part of the court (compare Crystal v Lisnow, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted an improvident exercise of discretion. Full disclosure is required of "all matter material and necessary" to the defense of an action (CPLR 3101[a]), and the words "material and necessary" are "to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Defendants are entitled to the discovery they seek in their efforts both to establish their defense of truth to plaintiff's defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News, 211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions in those articles that are not directly challenged in plaintiff's complaint. Therefore, the inquiries related to grand jury testimony by plaintiff, information sought from or provided by plaintiff to the Commission on [*2]Judicial Conduct, and plaintiff's arrest record, if any, seek information sufficiently material and relevant to the defense of the action to warrant disclosure. (

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as granted the defendants' motion for renewal and reargument of their prior oral application for access to the plaintiff's medical records "beyond a 3 year period," which was denied by order of the same court (Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument granted the defendants access to "the complete medical records relating the plaintiffs' initial diagnosis & follow up treatment to present for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for renewal and reargument was insufficient to justify a new determination. The defendants failed to establish that the additional disclosure was material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277 AD2d 344), nor did they demonstrate that "access to earlier medical records would result in the discovery of admissible or relevant evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted an improvident exercise of discretion. Full disclosure is required of "all matter material and necessary" to the defense of an action (CPLR 3101[a]), and the words "material and necessary" are "to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Defendants are entitled to the discovery they seek in their efforts both to establish their defense of truth to plaintiff's defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News, 211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions in those articles that are not directly challenged in plaintiff's complaint. Therefore, the inquiries related to grand jury testimony by plaintiff, information sought from or provided by plaintiff to the Commission on [*2]Judicial Conduct, and plaintiff's arrest record, if any, seek information sufficiently material and relevant to the defense of the action to warrant disclosure. (

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as granted the defendants' motion for renewal and reargument of their prior oral application for access to the plaintiff's medical records "beyond a 3 year period," which was denied by order of the same court (Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument granted the defendants access to "the complete medical records relating the plaintiffs' initial diagnosis & follow up treatment to present for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for renewal and reargument was insufficient to justify a new determination. The defendants failed to establish that the additional disclosure was material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277 AD2d 344), nor did they demonstrate that "access to earlier medical records would result in the discovery of admissible or relevant evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.

CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Ryan v St. Francis Hosp., 2009 NY Slip Op 04045, (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in precluding the testimony of the plaintiffs' proposed expert on the subject of whether the defendant Andrew E. Lituchy was the attending physician of record and in charge of the injured plaintiff's care during the entire hospitalization on the ground that there were no facts in the record to support the expert's opinion (see Cassano v Hagstrom, 5 NY2d 643, 646; Martinez v Mullarkey, 41 AD3d 666, 670; Simo v New York City Tr. Auth., 13 AD3d 609, 611).

Under the circumstances, the Supreme Court also providently exercised its discretion in precluding the testimony of the plaintiffs' proposed expert as to purported departures from the [*2]standard of care by certain nonparty physicians. The plaintiffs failed to give notice prior to trial of the specific subject matter of the expert's testimony setting forth a different theory of recovery not readily discernable from the plaintiffs' bill of particulars and the statements in their CPLR 3101(d) responses (see Durant v Shuren, 33 AD3d 843, 844; Dalrymple v Koka, 2 AD3d 769, 771).

The bold is mine.

CPLR § 3103(a); § 3102(e)

Enforcement of an out of state subpoena and the Court's ability to quash.

CPLR § 3102 Method of obtaining disclosure
CPLR § 3103 Protective orders

Matter of Trump v Sulzberger, 2008 NY Slip Op 51810(U) (Supreme Court, New York County).

Here, Trump made a motion in New Jersey for "non-party out-of-state depositions of three executives of The Times" and the motion was granted by Judge Kassel.

Addressing possible objections by the deponents or The Times, Judge Kassel ruled that as non-parties, their objections would have to be raised in New York after the subpoenas were served, and that he was only "looking at whether or not the defendants are prejudiced." Judge Kassal concluded that "[t]he bottom line is this, and I can't give a better reason, other than the fact that my sense that it's not a wild goose chase. . . . I'm going to permit the depositions, at least from New Jersey's end."

Well, what about New York's end?  Here's where it gets interesting.

On March 19, 2008, Trump filed an ex parte application in the Supreme Court of the County of New York, for an order pursuant to CPLR 3201(e) authorizing New York service of subpoenas ad testificandum and duces tecum on Sulzberger, Keller and Ingrassia. On that same day, the Hon. William J. Davis issued an ex parte order granting the application, and directing Sulzberger, Keller and Ingrassia to appear for depositions, and to produce the demanded documents. Sulzberger and Keller ^[FN4] are now moving to quash the subpoenas, arguing that they impose an unreasonable burden on senior executives of a non-party who have no direct knowledge of the facts in the dispute, and that the "tangential information" sought from these witnesses is not legitimately needed in the New Jersey action.

CPLR 3102(e) provides that when a court in another state issues a mandate or commission requiring testimony by a New York witness, the witness "may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state." CPLR 3102(e). Under section 3102(e), a New York court can order the testimony of a witness or compel the production of documents in aid of an action pending outside the state. The purpose of CPLR 3102(e) is to make available the mechanism of New York courts to secure disclosure from persons subject to New York jurisdiction for use in an action in any other jurisdiction. See Kirkland & Ellis v. Chadbourne & Parke LLP, 176 Misc 2d 73, 76-77 (Sup Ct, NY Co 1998); 7B McKinney's §3102, Commentary C3102:9 at 500-500. "It is appropriate for the Sister State court which has the underlying case, and is therefore in a better position to determine the appropriate scope of disclosure, to make the threshold determination as to whether to permit the discovery. The New [*4]York court's role is necessarily more limited." Matter of Welch, 183 Misc 2d 890, 891 (Sup Ct, NY Co 2000).

If the court in another state permits the discovery, the New York "court's inquiry with respect to objections raised by persons required to testify pursuant to CPLR 3102(e) is limited to determining (1) whether the witnesses' fundamental rights are preserved; (2) whether the scope of inquiry falls within the issues of the pending out-of-state action; and (3) whether the examination is fair." Matter of Ayliffe & Cos, 166 AD2d 223, 224 (1st Dept 1990), lv app den 76 NY2d 714 (1990) (citing Matter of Brandes v. Harris, 78 AD2d 638, 639 [2nd Dept 1980]). "The courts will not prejudge the materiality or the competency of the evidence in a cause pending in another jurisdiction and will afford the widest possible latitude in the conduct of such examinations.'" Id (quoting Matter of Roberts, 214 AD 271, 275 [1st Dept 1925]).

Notwithstanding the foregoing, New York courts retain discretionary authority under CPLR 3103(a) to issue a protective order or to quash a subpoena issued pursuant to CPLR 3102(e), due to over breadth or to prevent unnecessary harassment, see Matter of Dier, 297 AD2d 577 (1st Dept 2002), Law Office of Paul A. Lange v. Roman Catholic Diocese of Dallas, 245 AD2d 118, 119 (1st Dept 1997), due to an independent determination that the material sought is not critical or necessary, see Brown & Williamson Tobacco Corp. v. Wigand, 228 AD2d 187 (1st Dept 1996), app withdrawn 90 NY2d 901 (1997), or due to the inclusion of material protected by the attorney-client privilege, see Bombadier Capital Inc. v. Schoengold Sporn Laitman & Lometti P.C., 46 AD3d 323 (1st Dept 2007), Kirkland & Ellis v. Chadbourne & Parke, supra. These cases require this court to exercise its discretion and review the subpoenas under the standards enumerated above, rather than simply "rubber stamping" the determination of the New Jersey court. See id at 77.

 

All the bold is mine.

In the end, the Court, after taking several factors into account, decided to quash one subpoena and limit the scope of the discovery requested as to the other.

In short, CPLR § 3102(e) allows New York courts to enforce discovery ordered by a court in a different state, it has the ability to issue a protective order pursuant to CPLR § 3103(a) under a limited set of circumstances.