| Matter of Perito v Finklestein |
| 2008 NY Slip Op 04354 [51 AD3d 674] |
| May 6, 2008 |
| Appellate Division, Second Department |
| In the Matter of Paul Perito, Appellant, v Katherine EbanFinklestein, Respondent. |
—[*1] McLaughlin & Stern, LLP, New York, N.Y. (Steven J. Hyman of counsel), forrespondent.
In a proceeding pursuant to CPLR 3102 (e) to obtain disclosure for an action pending inanother jurisdiction, the petitioner appeals from so much of an order of the Supreme Court,Kings County (Saitta, J.), dated January 30, 2007, as granted the petition only to the extent ofdirecting the respondent to answer interrogatories for the limited purpose of confirminginformation already published in a book entitled Dangerous Doses: How Counterfeiters AreContaminating America's Drug Supply.
Ordered that the order is affirmed insofar as appealed from, with costs.
The petitioner in this proceeding is the defendant in a criminal action pending in the state ofFlorida, in which he was charged with multiple crimes arising from the alleged sale of counterfeitmedicine. The respondent wrote a book entitled Dangerous Doses: How Counterfeiters AreContaminating America's Drug Supply, which described an investigation conducted by Floridalaw enforcement officials that resulted in the arrest of several individuals, including thepetitioner.
The petitioner served a subpoena ad testificandum and a subpoena duces tecum upon therespondent commanding her appearance for a deposition and requiring the production of any andall documents related to her preparation of the book that were furnished to her by lawenforcement officials. The respondent moved to quash the subpoenas, asserting, inter alia, thatthe petitioner did not establish his entitlement to the information sought under the three-prongedtest set forth in Civil [*2]Rights Law § 79-h (c), commonlyknown as the Shield Law. The Supreme Court directed the respondent to answer interrogatoriesfor the limited purpose of confirming information already published in the book.
Contrary to the petitioner's contention, he failed to satisfy the tripartite test set forth in CivilRights Law § 79-h (c). Even accepting that the information sought was "highly materialand relevant," the petitioner failed to establish that the information was "critical or necessary" tohis defense in the pending criminal action (Civil Rights Law § 79-h [c] [i], [ii]). In order toshow that information sought is "critical or necessary," a petitioner cannot merely show that itwould be useful, but rather that the defense could not be presented without it (see Flynn vNYP Holdings, 235 AD2d 907, 908 [1997]; In re Application to Quash Subpoena toNational Broadcasting Co., 79 F3d 346, 351 [1996]). The petitioner failed to make therequired showing based on his vague assertions that the information sought might impact on thecredibility of witnesses in the impending trial (see Matter of Brown & Williamson TobaccoCorp. v Wigand, 228 AD2d 187 [1996]; Matter of American Broadcasting Cos., 189Misc 2d 805, 808 [2001]; People v Troiano, 127 Misc 2d 738, 742 [1985]). Moreover,the petitioner failed to demonstrate that the information sought was not obtainable from anothersource (see Matter of CBS Inc. [Vacco], 232 AD2d 291, 292 [1996]).
Accordingly, the Supreme Court properly held that the nonconfidential information requestedby the petitioner was protected by a qualified privilege, and properly limited his inquiry toconfirming information already published in the book.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Skelos, Santucci and Belen, JJ., concur.