Dec v. Auburn Enlarged School District

222 A.D.2d 1100, 636 N.Y.S.2d 513, 1995 N.Y. App. Div. LEXIS 14184

Opinion

—Order unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted plaintiffs motion to compel petitioner, a non-party witness, to appear pursuant to subpoena at an examination before trial. The fact that petitioner changed her residence to North Dakota after service of the subpoena did not deprive the court of jurisdiction or plaintiff of his right to depose petitioner (see, Bristol-Myers Squibb Co. v Yen-Shang B. Chen, 186 AD2d 999; United Refrigerator Co. v Rose, 19 AD2d 809). In the exercise of our discretion, we modify the order on appeal by requiring plaintiff to pay petitioner’s reasonable expenses incurred in attending the examination before trial. (Appeal from Order of Supreme Court, Cayuga County, Corning, J. — Quash Subpoena.) Present — Lawton, J. P., Wesley, Balio, Davis and Boehm, JJ.