Opinion
# 2014-015-479 Claim No. 121506 Motion No. M-84286
02-25-2014
CRANE-HOGAN STRUCTURAL SYSTEMS, INC. v. THE STATE OF NEW YORK
Adams Bell Adams, P.C. By: Max G. Kinsky, Esquire and Daniel P. Adams, Esquire Honorable Eric T. Schneiderman, Attorney General By: C. Michael Reger, Esquire Assistant Attorney General
Synopsis
Motion for issuance of a commission or letters rogatory to obtain documents for a non-party in New Jersey was denied.
Case information
| UID: | 2014-015-479 |
| Claimant(s): | CRANE-HOGAN STRUCTURAL SYSTEMS, INC. |
| Claimant short name: | CRANE-HOGAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121506 |
| Motion number(s): | M-84286 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Adams Bell Adams, P.C. By: Max G. Kinsky, Esquire and Daniel P. Adams, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: C. Michael Reger, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for the issuance of a commission or letters rogatory pursuant to CPLR 3108 together with a subpoena duce tecum to obtain documents from a non-party in New Jersey.
This is an action for breach of contract which seeks damages for delays and extra work in connection with a project known as the Binghamton Government Center - Rehabilitation of Parking Garage and Related Systems in Binghamton, New York. Claimant's counsel indicates that the Office of General Services (OGS) utilized the consulting services of Carl Walker, Inc., a structural engineering firm in Woodbury, New Jersey, and seeks to subpoena "[a]ll documents, records, and communications in your possession related to the project known as 'Binghamton Government Center - Rehabilitation of Parking Garage and Related Systems' - New York State Office of General Services Project # 42910-C" (claimant's Exhibit C, proposed subpoena duces tecum). Claimant asserts that these records are "necessary and convenient" to the prosecution of the case because they will substantiate that the defendant knew or should have known of the need for certain additional work, to wit, additional concrete removal and ventilation in the elevator machine room and testing lab (id. at ¶ 7).
To obtain a judicial subpoena compelling discovery from a nonparty, claimant is "required to demonstrate something more than simple relevance and materiality, such as that the information cannot be discovered through other sources or that it is otherwise necessary for trial preparation" (Lerner v State of New York, 113 AD3d 916, 918 [3d Dept 2014]; Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1506 [3d Dept 2011]; American Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522 [3d Dept 2012]; Vorys v Camp Menawa, LLC, 91 AD3d 1167 [3d Dept 2012]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d 199 [3d Dept 2010]; CPLR 3101 [a] [4]). Here, claimant seeks documents, records, and communications between Carl Walker, Inc., and OGS relating to the project but provides no reason as to why these records cannot be obtained from the defendant. Moreover, to the extent claimant moves pursuant to CPLR 3108 for the issuance of a commission or letters rogatory, this provision applies only to an out-of-state deposition, not the issuance of a subpoena duces tecum. While claimant's counsel indicates that N.J. Rules of Court § 4:11-4 requires an ex parte application accompanied by a commission or letters rogatory, this rule applies to the deposition of a person which is to be taken in New Jersey, not the production of documents.
Accordingly, claimant's motion is denied.
February 25, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated November 19, 2013;
Affirmation of Daniel P. Adams dated November 5, 2013 with exhibits;
Letter from C. Michael Reger dated November 27, 2013.