Pernice v. Devora

238 A.D.2d 558, 657 N.Y.S.2d 70, 1997 N.Y. App. Div. LEXIS 4447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, nonparty Ralph Olsen appeals from an order of the Supreme Court, Kings County (Feinberg, J.), dated November 4, 1996, which denied his motion to quash a subpoena duces tecum.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The purpose of a subpoena is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (see, Matter of Terry D., 81 NY2d 1042). By the use of the subpoena duces tecum at issue, the plaintiff sought to obtain from Dr. Ralph Olsen, who conducted a medical examination of the plaintiff on behalf of the defendants, essentially all of Dr. Olsen’s records, including records of the money Dr. Olsen received for medical examinations he performed on behalf of insurance companies. The plaintiff sought such information on the generalized claim that since the defendants’ examining physicians receive compensation, they are predisposed in their findings toward the defendants, and that because the defendants’ physicians have a tight appointment schedule, they would have minimal time to conduct thorough examinations. The plaintiff thus claimed the information requested would be used to impeach Dr. Olsen’s credibility. Since the plaintiff admittedly sought the requested records simply for the purpose of gaining information to impeach the general credibility of Dr. Olsen, the subpoena should have been quashed (see, People v Scott, 212 AD2d 477). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.