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NO ONE MOVED TO QUASH THE NONJUDICIAL SUBPOENA SERVED ON A NONPARTY; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO COMPEL THE NONPARTY’S APPEARANCE AT A DEPOSITION (SECOND DEPT).

The Second Department determined Supreme Court should have compelled the former Town Supervisor (St. Lawrence) to appear for depositions in this slip and fall case:

… [T]he plaintiff served nonparty Christopher St. Lawrence, former Town Supervisor for the Town, with a nonjudicial subpoena directing him to appear for a deposition. St. Lawrence failed to appear for the deposition as directed in the subpoena, and the plaintiff moved … to compel him to comply with that subpoena by appearing for a deposition … . … Supreme Court denied the motion, and the plaintiff appeals.

Since the Supreme Court found that the subpoena was proper, that no one had moved to quash it, and that St. Lawrence had failed to comply with it, the court should have directed St. Lawrence to comply with the subpoena (see CPLR 2308[b] …). … [T]he court should have granted that branch of the plaintiff’s motion which was to compel St. Lawrence to comply with the subpoena by directing him to appear for a deposition …  Thus, we remit the matter to the Supreme Court, Rockland County, to schedule the deposition in compliance with the subpoena and for further proceedings to compel compliance with the subpoena. Schiller v Town of Ramapo, 2022 NY Slip Op 01061, Second Dept 2-16-22

 

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THE JUDGE WAS REQUIRED TO DETERMINE WHETHER DEFENDANT IS AN “ELIGIBLE... THE ROLLED UP MAT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS KNOWN TO THE PLAINTIFF...