Kondratick v Orthodox Church in Am.

2010 NY Slip Op 03877 [73 AD3d 708]

May 4, 2010

Appellate Division, Second Department

As corrected through Wednesday, June 30, 2010

Elizabeth Kondratick, Respondent, v Orthodox Church inAmerica, Appellant, et al., Defendant. (Action No. 1.) Orthodox Church in America, Appellant,v Robert S. Kondratick, et al., Respondents. (Action No. 2.)

—[*1]Sahn Ward & Baker, PLLC, Uniondale, N.Y. (Ralph Branciforte and Jon A. Ward ofcounsel), for appellant.

Weinstein Group, P.C., Hauppauge, N.Y. (Lloyd J. Weinstein of counsel), forrespondents.

In related actions, inter alia, to recover damages for breach of contract, the Orthodox Churchin America, a defendant in action No. 1 and the plaintiff in action No. 2, appeals, as limited byits brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), enteredMay 1, 2009, as amended May 29, 2009, as granted the motion of Elizabeth Kondratick, theplaintiff in action No. 1 and a defendant in action No. 2, to quash two subpoenas duces tecumserved by the Orthodox Church in America upon the nonparty JP Morgan Chase Bank.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of Elizabeth Kondratick, the plaintiff in action No. 1 and a defendant in action No. 2, toquash two subpoenas duces tecum served by the Orthodox Church in America upon the nonpartyJP Morgan Chase Bank is denied.

Although the general rule is that there shall be "full disclosure of all matter material andnecessary in the prosecution . . . of an action" (CPLR 3101 [a]; see Auerbach v Klein, 30 AD3d451 [2006]), nevertheless, "unlimited disclosure is not permitted" (Silcox v City of NewYork, 233 AD2d 494 [1996]). A party seeking disclosure from a nonparty witness, inaddition to demonstrating that the disclosure sought is material and necessary, must also set forthcircumstances or reasons why disclosure is sought or required from a nonparty (seeCPLR 3101 [a] [4]; Tenore vTenore, 45 AD3d 571, 571-572 [2007]). Here, the Orthodox Church in America(hereinafter the appellant) satisfied this requirement. In light of the claims made by the plaintiffin action No. 1, the information sought in the subpoenas by the appellant is relevant, material,and [*2]necessary, and unavailable through other means.Accordingly, the Supreme Court should have denied the motion to quash the subpoenas (seeTenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305AD2d 666 [2003]; Maxwell v Snapper, Inc., 249 AD2d 374 [1998]). Skelos, J.P., Dillon,Angiolillo, Eng and Sgroi, JJ., concur.