CPLR § 3101 Scope of disclosure
(a) Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:
(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.
Heaney v Hospital for Special Surgery, 2009 NY Slip Op 50748(U) (App. Term, 1st, 2009)
The motion court providently exercised its discretion in granting
defendant's motion to quash a subpoena and notice of deposition served
by plaintiffs upon an out-of-state nonparty witness, where plaintiffs
failed to show that further examination of the witness, who had already
been extensively deposed by plaintiffs, was likely to be productive (see CPLR
3101[a][4]). Plaintiffs' spoliation argument, even if timely raised and
properly considered, must be rejected on the merits since there was no
showing that defendants destroyed the requested documents (see Squitieri v City of New York, 248 AD2d 201, 202 [1998]; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]) or that plaintiffs were unable to prove their claims without the missing documents (see Ingoglia v Barnes & Noble College Booksellers, Inc., 48 AD3d 636, 637 [2008]; Amaris v Sharp Elec. Corp., 304 AD2d 457 [2003]).
The bold is mine.
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