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 ) 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 , quoting, inter alia, Wiseman v American Motors Sales Corp, 103 AD2d 230, 235 ).
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 ). 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.