Humphrey v Kulbaski, 2010 NY Slip Op 08072 (App. Div., 2nd 2010)

The Supreme Court properly granted those branches of the motions which were to quash the subpoenas served upon the nonparties who have not complied with those subpoenas. The plaintiffs failed to satisfy the threshold requirement that the disclosure sought is "material and necessary" in their prosecution of the action (CPLR 3101[a]). The subject subpoenas demand production of "all . . . files and records" pertaining to the plaintiff John Humphrey's treatment by the nonparty healthcare providers and billing by the nonparty healthcare insurer without narrowing the request by time period, the type of treatment, or relationship to the medical condition which is the subject of this action. In opposition to the motions to quash, the plaintiffs failed to make any further showing that the requested documents were relevant to the issue of the defendants' alleged negligence. The subpoenas were, thus, properly quashed as seeking irrelevant material (see Kooper v Kooper, 74 AD3d 6, 10-11; Mendelovitz v Cohen, 49 AD3d 612).

The Supreme Court providently exercised its discretion in requiring, with respect to the nonparties who complied, that the records of those nonparties be subpoenaed to the office of the clerk of the court in the event that any party wishes to introduce them into evidence at trial (see Weinberg v Remyco, Inc., 9 AD3d 425, 427; CPLR 2306[b]). As "special circumstances" need not be established in support of the new subpoenas (see Kooper v Kooper, 74 AD3d at 16), we modify the order to delete that provision.


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