Post v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

Appellate Division of the Supreme Court of New York

Post v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

79 A.D.2d 558, 433 N.Y.S.2d 800, 1980 N.Y. App. Div. LEXIS 13863

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 11, 1980

StatusPublished

Cited by4 cases

This text of 79 A.D.2d 558 (Post v. Merrill Lynch, Pierce, Fenner & Smith, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Post v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 79 A.D.2d 558, 433 N.Y.S.2d 800, 1980 N.Y. App. Div. LEXIS 13863 (N.Y. Ct. App. 1980).

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Opinions

Order, Supreme Court, New York County, entered June 5, 1980, granting plaintiffs’ motion to quash notices to take depositions of nonparty witnesses and subpoenaes duces tecum, and further denying defendant’s cross motion for leave to subpoena and depose nonparty witnesses, modified, on the law, the facts, and in the exercise of discretion to grant the cross motion for leave to subpoena and depose the nonparty witnesses, and otherwise affirmed, without costs. Settle order on notice. Appeal from order of August 28, 1980, denying motion for reargument dismissed as nonappealable. In this action by former employees to recover pension benefits under defendant’s employee pension plan, defendant appeals from an order at Special Term granting plaintiffs’ motion to quash notices to depose nonparty witnesses and subpoenaes duces tecum and also denying defendant’s cross motion for leave to subpoena and depose said nonparty witnesses. We agree with Special Term that it was procedurally incorrect to seek discovery from nonparty witnesses without first securing a court order. When considered together, CPLR 3101 (subd [a], par [4]) and 3120 (subd [b]) unmistakably permit disclosure from nonparty witnesses only where the court on motion determines that there are adequate special circumstances, and embodies that determination in an order. (See Bonito Mar. Corp. v St. Paul Mercury Ins. Co., 68 AD2d 864 [concurring opn by Fein, J.].) However, defendant’s cross motion, responding to plaintiffs’ motion to quash was procedurally appropriate and entitled defendant to a determination on the merits. We are satisfied that the documents sought are material to an issue in the case and that the record discloses adequate special circumstances for granting the requested discovery. Concur—Sandler and Lynch, JJ.

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Order, Supreme Court, New York County, entered June 5, 1980, granting plaintiffs’ motion to quash notices to take depositions of nonparty witnesses and subpoenaes duces tecum, and further denying defendant’s cross motion for leave to subpoena and depose nonparty witnesses, modified, on the law, the facts, and in the exercise of discretion to grant the cross motion for leave to subpoena and depose the nonparty witnesses, and otherwise affirmed, without costs. Settle order on notice. Appeal from order of August 28, 1980, denying motion for reargument dismissed as nonappealable. In this action by former employees to recover pension benefits under defendant’s employee pension plan, defendant appeals from an order at Special Term granting plaintiffs’ motion to quash notices to depose nonparty witnesses and subpoenaes duces tecum and also denying defendant’s cross motion for leave to subpoena and depose said nonparty witnesses. We agree with Special Term that it was procedurally incorrect to seek discovery from nonparty witnesses without first securing a court order. When considered together, CPLR 3101 (subd [a], par [4]) and 3120 (subd [b]) unmistakably permit disclosure from nonparty witnesses only where the court on motion determines that there are adequate special circumstances, and embodies that determination in an order. (See Bonito Mar. Corp. v St. Paul Mercury Ins. Co., 68 AD2d 864 [concurring opn by Fein, J.].) However, defendant’s cross motion, responding to plaintiffs’ motion to quash was procedurally appropriate and entitled defendant to a determination on the merits. We are satisfied that the documents sought are material to an issue in the case and that the record discloses adequate special circumstances for granting the requested discovery. Concur—Sandler and Lynch, JJ.

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Bluebook (online)

79 A.D.2d 558, 433 N.Y.S.2d 800, 1980 N.Y. App. Div. LEXIS 13863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/post-v-merrill-lynch-pierce-fenner-smith-inc-nyappdiv-1980.

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