The following papers have been read on this motion: Notice of Motion to Quash Subpoenas and Supporting Papers [Seq. 001] X Plaintiff’s Affirmation in Opposition to Motion and Supporting Papers [Seq. 001] X Defendant’s Reply Affirmation [Seq. 001] X DECISION AND ORDER ON MOTION Upon the forgoing papers, the motion by the Defendant, T.J.P ["Defendant"], for an Order pursuant to CPLR 3119 quashing the trial subpoenas issued by the Plaintiff, R.J.S., Jr. ["Plaintiff"], and directed at the Defendant, T.J.P, at Quinn & Tyrell, and at Allstate Insurance Company, is determined as hereinafter follows: The Defendant filed the instant motion in a personal injury action which arises from a motor vehicle collision which occurred on December 9, 2014. The Plaintiff commenced this action by filing a Summons and Complaint on or about January 7, 2016. The Plaintiff filed his note of issue and certificate of readiness on May 18, 2018. During the discovery process of this case, the parties entered into a Stipulation which was So-Ordered by the Honorable Randy Sue Marber, JSC. A copy of the So-Ordered Stipulation, dated February 8, 2018, is appended as Exhibit C to the Defendant’s motion, and it provides, as relevant here, as follows: “Defendant hereby concedes liability and Plaintiff agrees to cap damages at the policy limit of $100,000, inclusive of statutory interest to run from today [February 8, 2018] in the event of a jury verdict in Plaintiff’s favor, this matter shall proceed on [the] issue of damages only. Plaintiff hereby waives Defendant’s EBT and further waives his demand for AZ as to non-privileged portions of Defendant’s criminal legal file”. (Exhibit C to Defendant’s Motion; emphasis in original). The Defendant now moves for an Order pursuant to CPLR 3119(e)1 quashing three (3) trial subpoenas that were served by the Plaintiff and directed at: 1) the Defendant T.J.P, requesting the Defendant’s attendance to testify and to produce documents at trial; and at 2) Quinn & Tyrell, requesting that they produce a copy of the non-privileged portion of their file concerning Docket No. CR-026883-14NA; and at 3) Allstate Insurance Company, requesting a copy of the “entire non-privileged insurance/adjuster file in connection with the Claim No. 00000000000.” Copies of the subject trial subpoenas served by the Plaintiff are collectively appended as Exhibit D to the Defendant’s motion. The Defendant argues that the subject trial subpoenas should be quashed because “[t]he subpoenas are utterly irrelevant, immaterial, and will not uncover anything legitimate with regard to the trial of this case”, and because the Plaintiff is attempting to improperly use the trial subpoenas as a means to obtain material that could have been obtained throughout the discovery process in this case. In opposition to the Defendant’s motion, the Plaintiff cites to CPLR 3101[a], which provides that “…There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof…”. However, in Tirado v. Miller, 75 AD3d 153, 157 [2d Dept 2010], the Second Department distinguished between “prenote discovery”, that is, disclosure sought before the filing of a note of issue and certificate of readiness, and “[p]ost-note” discovery, that is, disclosure sought after the filing of a note of issue and certificate of readiness. While “pre-note” discovery is to be liberally construed in favor of the party seeking the disclosure, “post-note” discovery “may only be sought under two procedural circumstances”, the first being to “vacate the note of issue within 20 days of its service pursuant to 22 NYCRR 202.21[e], by merely showing that discovery is incomplete[] and the matter is not ready for trial.” (Tirado, 75 AD3d at 157 [citations omitted]). Where, as in this case, no motion to vacate the note of issue has been filed, the movant must “meet a more stringent standard and demonstrate ‘unusual or unanticipated circumstances and substantial prejudice’ absent the additional discovery”. (Tirado, 75 AD3d at 157; citations omitted; see also Singh v. Finneran, 100 AD3d 735, 736 [2d Dept 2012]). As the Defendant argues, the discovery phase of this case ended nearly five (5) years before the Defendant’s motion was filed, when the Plaintiff filed his note of issue and certificate of readiness on May 18, 2018. To the extent that the Plaintiff served the subject judicial subpoenas in an effort to obtain “discoverable evidence”, as the Plaintiff argues, he has failed to demonstrate the existence of “unusual or anticipated circumstances” that developed after the filing of the note of issue and therefore he has failed to establish that he is entitled to such post-note of issue discovery. The Plaintiff appears to acknowledge that his request for the Allstate Insurance Company file should have been made before he filed his note of issue, as he asserts that Courts often “suggest plaintiff counsel subpoena such records to prevent delay in filing the Note of Issue…”. The Plaintiff provides no explanation why such subpoena was not served until the eve of trial, and approximately five years after the discovery phase of this case ended. Under the circumstances presented here, the Court agrees with the Defendant that the Plaintiff’s Judicial Subpoena Duces Tecum directed to Allstate Insurance Company, in which the Plaintiff seeks “The entire non-privileged insurance/adjuster file in connection with the Claim No.: 000000000″ [emphasis supplied] is an improper use of an “overbroad trial subpoena as a discovery device and a fishing expedition to secure…wide-ranging discovery that plaintiff’s counsel had neglected to obtain in pretrial disclosure”. (Mestel & Co., Inc. v. Smythe Masterson & Judd, Inc., 215 AD2d 329, 329-330 [1st Dept 1995]). Therefore, the portion of the Defendant’s motion which seeks an Order quashing the subpoena directed at Allstate Insurance Company shall be GRANTED. Regarding the judicial subpoenas directed at the Defendant and at Quinn & Tyrell, the parties undisputedly entered into a so-ordered stipulation dated February 8, 2018, in which the Plaintiff specifically waived the EBT of the Defendant, and also waived authorizations as to nonprivileged portions of the Defendant’s criminal legal file. The Plaintiff’s opposition papers do not include any arguments responding to or otherwise addressing the merits of the judicial subpoena duces tecum directed at Quinn & Tyrell, the criminal defense attorneys of the Defendant. In light of Defendant’s unopposed argument that the contents of the Quinn & Tyrell legal file are utterly irrelevant in this damages-only trial, and the defendant’s unrefuted concern that the Plaintiff might attempt to use the subpoenaed discovery to improperly introduce the Defendant’s DWI arrest to the jury, and as the Plaintiff expressly waived the right to obtain the unprivileged criminal legal file during discovery, the portion of the Defendant’s motion which seeks an Order quashing the subpoena directed at Quinn & Tyrrell shall be GRANTED. Regarding the portion of the Defendant’s motion which seeks to quash the trial subpoena directed at the Defendant, the Plaintiff does not dispute that the parties entered into a so-ordered stipulation pursuant to which the Plaintiff waived the Defendant’s testimony. Instead, the Plaintiff argues that the subpoena directed to the Defendant does not violate the parties’ stipulation, because the testimony sought concerns damages and not liability. However, under the express terms of the parties’ so-ordered stipulation, the Plaintiff waived the Defendant’s testimony without regard to whether testimony would address liability or damages. The Plaintiff has put forth no basis to set aside or vacate the so-ordered stipulation or to relieve the Plaintiff from his promises and obligations thereunder. (Carney v. New York Telephone Co., 158 AD2d 443 [2d Dept 1990]). Furthermore, while the Plaintiff argues that Defendant’s testimony is “germane and necessary to the prosecution of this matter” insofar as the Defendant can testify about the intensity of the impact and the nature of property damage to his vehicle, the Plaintiff recognizes that the Plaintiff himself can testify about these matters. Under the circumstances presented here, the Court finds that it would be improper to compel the Defendant to testify at trial when the Plaintiff could have obtained such discovery from the Defendant during the pretrial discovery phase but expressly elected to waive the opportunity to elicit such testimony. Therefore, the portion of the Defendant’s motion which seeks an Order quashing the Judicial Subpoena Duces Tecum and Ad Testificandum directed at the Defendant T.J.P shall be GRANTED. For the foregoing reasons, the Defendant’s motion shall be GRANTED, in its entirety. Accordingly, it is hereby: ORDERED, that the Defendant’s motion for an Order quashing the three (3) judicial subpoenas directed at: 1) the Defendant T.J.P, requesting the Defendant’s attendance to testify and to produce documents at trial; and at 2) Quinn & Tyrell, requesting that they produce a copy of the non-privileged portion of their file concerning Docket No. CR-000000-00NA; and at 3) Allstate Insurance Company, requesting a copy of the “entire non-privileged insurance/adjuster file in connection with the Claim No. 0000000000″, is hereby GRANTED, in its entirety, and the subject judicial subpoenas are hereby quashed; and it is further, ORDERED, that all other requests for relief not specifically addressed herein are deemed DENIED. This constitutes the Decision and Order of this Court. Dated: July 10, 2023
