Opinion
2002-09261, 2002-09271
Submitted April 2, 2003.
April 28, 2003.
In an action to recover damages for personal injuries, Burns and Roe Services Corporation appeals from (1) an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 14, 2002, which, upon the denial of the motion of the defendant, Congdon Associates Distributing Co., to hold it in contempt of court, directed it to disclose the materials sought in a subpoena and appear for a nonparty deposition, and (2) an order of the same court, also dated August 14, 2002, which denied its cross motion for a protective order pursuant to CPLR 3103.
Winne, Banta, Hetherington Basralian, P.C., New York, N.Y. (Douglas J. Jones of counsel), for nonparty-appellant.
Malapero Prisco, LLP, New York, N.Y. (Glenn E. Richardson of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order dated August 14, 2002, which directed certain discovery, is modified by adding thereto a provision specifying that any expenses incurred in providing the discovery shall be borne by the defendant Congdon Associates Distributing Co.; and it is further,
ORDERED that the order dated August 14, 2002, which denied the nonparty-appellant's cross motion for a protective order, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the nonparty-appellant.
The Supreme Court erred in failing to include a provision defraying discovery expenses incurred by the nonparty-appellant (see CPLR 3120[b]). However, the Supreme Court properly denied the nonparty-appellant's motion for a protective order with regard to the discovery sought in the subpoena previously served upon it. The nonparty-appellant failed to move to quash the subpoena (see Fabbricatore v. Lindenhurst Union Free School Dist., 259 A.D.2d 656).
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.