Legislation currently referred to the Codes CommitteeÂ of the New York state legislature would amend New York civil procedure regarding subpoenas, specifically Civil Practice Law and Rules (“CPLR”) Section 3101 (a) (4).Â Â
The justification for the proposed amendment is set forth as follows:Â Until 1984, CPLR 3101(a) (4) required disclosure by “any person where the court on motion determines that there are adequate special circumstances.” Courts interpreted that requirement very liberally. In Kenford Co. v. County of Erie, 41 AD.2d 586, 340 N.Y.S.2d 300 (4th Dep’t 1973), a seminal case repeatedly cited with approval by the other Departments, the Court said: “A mere showing by the lawyer that he needs such [nonparty] witness’s pretrial deposition in order to prepare fully for the trial should suffice as a ‘special circumstance’.”
By chapter 294 of the Laws of 1984, the statute was amended to its current form, eliminating both the need for a motion and any reference to “special circumstances.” The amendment was made effective September 1, 1984. In support of the amendment, its sponsor stated that, “The proposed amendment would…allow for the discovery of any person who possesses material and necessary evidence. All of the necessary protections to avoid abuses of non-party witnesses presently exist under CPLR 3103 and 3104.” 1984 Legislative Annual, pp. 122-123.
In two notable cases soon thereafter, the First Department, seemingly faced with the question of whether the old or the new statute applied to appeals pending in existing actions, found it unnecessary to decide the point, since even under the old statute, the liberal interpretation in Kenford would permit nonparty disclosure under the circumstances, and there was certainly no suggestion that the Legislature intended by the new statute “to depart from the liberal interpretation heretofore accorded to the ‘special circumstances’ standard in the former legislation.” Slabakis v. Drizin, 107 A.D.2d 45, 48, 485 N.Y.S.2d 270 (l”1
Dep’t 1985); see New England Mut. Life Ins. Co. v. Kelly, 113 AD.2d 285, 496 N.Y.S.2d 8 (151 Dep’t 1985).
In Dioguardi v. St. John’s Riverside Hosp., 144 AD.2d 333,334,533 N.Y.S.2d 915 (2nd Dep’t 1988), the Court, affirming denial of a nonparty deposition, said: “It is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances [citing a pre-1984 decision]. This requirement survived the1984 amendment to CPLR 3101 (a) (4) (L 1984, ch 294; see, New England Mut. Life Ins. Co. (supra); Slabakis [supra})."
We did not intend for the survival of "special circumstances" after the amendment of 1984. That holding in Dioguardi represents a misreading of the holdings in New England Mut. and Slabakis, and it is directly contrary to the legislative intent of the amendment as reflected in its sponsor's memorandum. While panels of the First and Fourth Departments of the Appellate Division have openly rejected Dioguardi (Schroder v. Consolidated Edison Co. ofN.Y., Inc., 249 AD.2d 69,670 N.Y.S.2d 856 [151 Dep't 1998]; Catalano v. Moreland, 299 AD.2d 881, 750 N.Y.S.2d 209 [4th Dep't 2002]), the Second Department has repeatedly followed its approach (see, e.g., Moran v. McCarthy, Safrath & Carbone, P.c., _ AD.3d_, 2006 N. Y. App. Div. LEXIS 9715; 2006 N.Y. Slip Op. 05926 [2nd Dep't 2006]; Tannenbaum v. Tannenbaum, 8 AD.3d 360,777 N.Y.S.2d 769 [2nd Dep't 2004]; Lanzello v. Lakritz, 287 AD.2d 601, 731 N.Y.S.2d 763 [2nd Dep't 2001];
Bostrom v. William Penn Life Ins. Co., 285 AD.2d 482,727 N.Y.S.2d 160 [2nd Dep't 2001]).
The conflict among departments of the Appellate Division and the need to clarify the intent of the 1984 amendment warrants this bill. Of course, non-party witnesses, like all of those from whom discovery may be sought, are protected from abusive discovery under CPLR 3103 and 3 I 04. There is no intent by this amendment to change statutory or case law concerning discovery of physicians or experts.
For more information regarding subpoenas, please see the New York SmartRules Response to Motion to Quash Subpoena Guides for Bronx, Nassau, New York, Kings, Queens, Richmond and Suffolk Counties.