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Bronxborough Medical, P.C. v. Travelers Insurance Co.

New York Supreme Court, Appellate Term, Second Department


September 10, 2008

BRONXBOROUGH MEDICAL, P.C., AS ASSIGNEE OF MOHAMAD NAZIR, APPELLANT,
v.
TRAVELERS INSURANCE CO., RESPONDENT.

Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 12, 2008

{**21 Misc 3d at 472}

OPINION OF THE COURT

Memorandum

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CCA 1201, for leave to serve a subpoena on defendant outside the City of New York compelling the production of an employee of defendant to testify at the trial. The lower court found that plaintiff did not offer a valid reason to allow service of a subpoena outside the jurisdiction. Plaintiff appeals from the order denying its motion.

In an action pending in the Civil Court of the City of New York, a subpoena may not be served outside the City of New York and the adjoining counties unless the Civil Court, upon a motion establishing to the satisfaction of the court that the interests of justice would be served thereby, permits service of such a subpoena (see CCA 1201). Inasmuch as plaintiff's moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant's employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff's motion was properly denied.

To the extent that plaintiff argues that defendant's response to its notice to admit was improper, the court below properly noted that plaintiff's remedy lies in the procedure set forth in CPLR 3123 (c).

Pesce, P.J., Rios and Steinhardt, JJ., concur.

20080910

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