Sarac v. Bertash

Appellate Division of the Supreme Court of New York

Sarac v. Bertash

148 A.D.2d 436, 538 N.Y.S.2d 588, 1989 N.Y. App. Div. LEXIS 2429

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

DecidedMarch 6, 1989

StatusPublished

Cited by3 cases

This text of 148 A.D.2d 436 (Sarac v. Bertash) 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

Sarac v. Bertash, 148 A.D.2d 436, 538 N.Y.S.2d 588, 1989 N.Y. App. Div. LEXIS 2429 (N.Y. Ct. App. 1989).

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Opinion

In an action to recover damages [437]*437for personal injuries, defendant Marian J. Bertash appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated June 9, 1987, which inter alia, directed that any witness failing to appear for a deposition would not be permitted to testify at trial.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, it was not an improvident exercise of discretion for the court to direct that persons who failed to appear for their depositions would not be permitted to testify at trial. It is clear from the record that the appellant intended to call her husband as a trial witness on her behalf. He is a nonparty nondomiciliary and therefore not subject to the subpoena power of the court (see, Judiciary Law § 2-b). In directing that witnesses who failed to comply with any subpoena to be deposed would not be permitted to testify, the court was not attempting, as indeed it could not, to extend the subpoena power of the court, but merely to control the proceedings in its own courtroom and insure that the trial to be conducted would be a fair one.

We have considered the appellant’s other contentions and find them to be without merit. Mollen, P. J., Thompson, Bracken and Kunzeman, JJ., concur.

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In an action to recover damages [437]*437for personal injuries, defendant Marian J. Bertash appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated June 9, 1987, which inter alia, directed that any witness failing to appear for a deposition would not be permitted to testify at trial.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, it was not an improvident exercise of discretion for the court to direct that persons who failed to appear for their depositions would not be permitted to testify at trial. It is clear from the record that the appellant intended to call her husband as a trial witness on her behalf. He is a nonparty nondomiciliary and therefore not subject to the subpoena power of the court (see, Judiciary Law § 2-b). In directing that witnesses who failed to comply with any subpoena to be deposed would not be permitted to testify, the court was not attempting, as indeed it could not, to extend the subpoena power of the court, but merely to control the proceedings in its own courtroom and insure that the trial to be conducted would be a fair one.

We have considered the appellant’s other contentions and find them to be without merit. Mollen, P. J., Thompson, Bracken and Kunzeman, JJ., concur.

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Bluebook (online)

148 A.D.2d 436, 538 N.Y.S.2d 588, 1989 N.Y. App. Div. LEXIS 2429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarac-v-bertash-nyappdiv-1989.

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