Subpoenas and trial defaults and CPLR 5511

Bottini v Bottini, 2018 NY Slip Op 05665 [2d Dept 2018]

The Supreme Court properly determined that the plaintiff's conduct at trial was a knowing and willing default, as she attended the first day of trial and then voluntarily chose not to attend the remainder of the trial (see Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607; Matter of Anita L. v Damon N., 54 AD3d 630, 631). Although no appeal lies from a judgment entered on the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review "those matters which were the subject of contest before the Supreme Court" (Sarlo-Pinzur v Pinzur, 59 AD3d at 607-608 [internal quotations omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Alam v Alam, 123 AD3d 1066, 1067; Tun v Aw, 10 AD3d 651, 652). Here, contrary to the defendant's contention, the order dated March 28, 2016, in which the court granted the defendant's motion to quash to the extent of declining to so-order the 24 proposed subpoenas, is brought up for review.

As a pro se litigant, the plaintiff was unable to issue subpoenas on her own, and her subpoenas need to be so-ordered by the Supreme Court (see CPLR 2302; Hamilton v Touseull, 48 AD3d 520, 521). A subpoena duces tecum may not be used for the purposes of general discovery (see Matter of Terry D., 81 NY2d 1042, 1044; Wahab v Agris & Brenner, LLC, 106 AD3d 993, 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d 360, 360). Rather, the purpose of a subpoena duces tecum is " to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding'" (Matter of Terry D., 81 NY2d at 1044, quoting Matter of Constantine v Leto, 157 AD2d 376, 378). Here, the plaintiff submitted the 24 proposed subpoenas to the court in February 2016, which was several months after the completion date for post-note of issue discovery. In addition to being overly broad, the subpoenas improperly sought the production of documents for the time period from 2007 through 2011, which was in violation of the court's prior orders. Under these circumstances, the court providently exercised its discretion by declining to so-order the 24 proposed subpoenas, thus effectively denying the plaintiff's ability to issue the subpoenas (see Wahab v Agris & Brenner, LLC, 106 AD3d at 994; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d at 360).

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