Koonmen v. Town of Brookhaven

236 A.D.2d 591, 654 N.Y.S.2d 681, 1997 N.Y. App. Div. LEXIS 1579

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant Town of Brookhaven appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated April 15, 1996, which denied its motion to quash a subpoena duces tecum and to compel the plaintiff to serve his response to its demand for disclosure pursuant to CPLR 3101 (d).

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion is granted; and it further,

Ordered that the plaintiff is directed to serve his response to the defendant’s demand pursuant to CPLR 3101 (d) within 30 days after service upon him of a copy of this decision and order with notice of entry.

The plaintiff failed to establish that "unusual and unanticipated conditions” developed subsequent to the filing of the statement of readiness warranting further pretrial discovery as sought in his subpoena duces tecum (see, 22 NYCRR 202.21 [d]; Keelan v Schubart, 192 AD2d 511; Di Maria v Coordinated Ranches, 114 AD2d 397). Accordingly, the Supreme Court should have granted that branch of the motion which was to quash the subpoena duces tecum.

Additionally, the Supreme Court should have granted that branch of the motion which was to compel the plaintiff to respond to the defendant’s demand pursuant to CPLR 3101 (d). The plaintiff failed to timely respond to the demand or provide an adequate explanation for his failure to do so, and almost three years have elapsed since the demand was made (see, Lyall v City of New York, 228 AD2d 566). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.