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.

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