NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 10, 2009
NAOMI REYES, ETC., PLAINTIFF-RESPONDENT,
RIVERSIDE PARK COMMUNITY (STAGE I), INC., ET AL., DEFENDANTS-APPELLANTS,
RIVERSIDE MAINTENANCE CORP., ET AL., DEFENDANTS.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 23, 2008, which denied defendants-appellants' motion for an order directing the issuance of a commission pursuant to CPLR 3108 to examine a nonparty witness in California, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Saxe, McGuire, Moskowitz, Freedman, JJ.
The motion court properly denied the motion since "absent allegations that the proposed out-of-State deponent 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 to attend the examination', the [appellants have] failed to demonstrate that a commission is " necessary or convenient'" (Susan A. v Steven J. A., 141 AD2d 790, 791  [quoting Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 (1984)]; see also Lewis v Baker, 279 AD2d 380, 380-381 ).
M-6107 -Naomi Reyes, etc., v Riverside Park Community (Stage I), Inc., et al.
Motion seeking leave to strike portions of the reply brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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