Opinion
2011-10-11
Scott NEEDLEMAN, et al., appellants,v.Chaim TORNHEIM, et al., defendants;Quin Realty Corp., nonparty-respondent.
Bijal M. Jani, Pearl River, N.Y., for appellants.Eric A. Schwartz, P.C., New York, N.Y., for nonparty-respondent.
In an action, inter alia, to recover damages for fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated January 19, 2011, as granted that branch of the motion of the nonparty, Quin Realty Corp., which was to quash a subpoena duces tecum.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contention, the Supreme Court properly granted that branch of the motion of the nonparty, Quin Realty Corp., which was to quash the subject subpoena duces tecum, since the record fails to demonstrate that service of the subpoena was made on all parties to the action as required by statute ( see CPLR 3120[3]; 2303; Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 472, 846 N.Y.S.2d 881; Matter of Roth, 7 Misc.3d 1010[A], 2005 N.Y. Slip Op. 050521[U], 2005 WL 856009 [2005]; Bldg Mgt. Co. v. Schwartz, 3 Misc.3d 351, 354–355, 773 N.Y.S.2d 242). Additionally, the subpoena was facially defective and subject to being quashed because it neither contained nor was accompanied by an affirmation setting forth the language mandated by CPLR 3101(a)(4) ( see Kooper v. Kooper, 74 A.D.3d 6, 13, 901 N.Y.S.2d 312; Matter of American Express Prop. Cas. Co. v. Vinci, 63 A.D.3d 1055, 1056, 881 N.Y.S.2d 484; Wolf v. Wolf, 300 A.D.2d 473, 751 N.Y.S.2d 425; Knitwork Prods. Corp. v. Helfat, 234 A.D.2d 345, 346, 651 N.Y.S.2d 99). Although Quin Realty Corp. did not raise this latter issue at the Supreme Court, we may consider it because “it is an issue of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture” ( Parry v. Murphy, 79 A.D.3d 713, 715, 913 N.Y.S.2d 285; see Williams v. Naylor, 64 A.D.3d 588, 588–589, 886 N.Y.S.2d 30; Block v. Magee, 146 A.D.2d 730, 732–733, 537 N.Y.S.2d 215).
The plaintiffs' remaining contentions are without merit.
MASTRO, J.P., FLORIO, ENG and SGROI, JJ., concur.