Reyes v. Riverside Park Community, Inc.

59 A.D.3d 219, 873 N.Y.S.2d 58

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2009
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 23, 2008, which denied defendants-appellants’ motion for an order directing the issuance of a commission pursuant to CPLR 3108 to examine a nonparty witness in California, unanimously affirmed, with costs.

The motion court properly denied the motion since “absent allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that ‘the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination’, the [appellants have] failed to demonstrate that a commission is ‘necessary or convenient’ ” (Susan A. v Steven J.A., 141 AD2d 790, 791 [1988] [citation omitted], quoting Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 [1984]; see also Lewis v Baker, 279 AD2d 380, 380-381 [2001]).

Motion seeking leave to strike portions of the reply brief denied.

Concur—Tom, J.E, Saxe, McGuire, Moskowitz and Freedman, JJ.