Blake v. LP 591 Ocean Realty

237 A.D.2d 554, 655 N.Y.S.2d 635, 1997 N.Y. App. Div. LEXIS 3088

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the nonparty New York City Department of Health appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Carson, J.), dated April 3, 1996, as directed it to produce a nonparty witness for deposition.

Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and so much of the order as directed the nonparty New York City Department of Health to produce a nonparty witness for deposition is deleted.

CPLR 3120 (b) provides, in relevant part, that a nonparty to an action "may be directed by order to do whatever a party may be directed to do”. However, it also requires that such nonparty "shall be served with the notice of motion in the same manner as a summons” (CPLR 3120 [b]). In the instant case, that was not done. Therefore, the court should not have ordered relief on the motion as against nonparty New York City Department of Health, as the court did not have jurisdiction over that agency for purposes of the motion (cf., Zamir v Rottenstein, 166 Misc 2d 45, 48). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.