Defense Motion to Compel Deposition of Non-Party Witness Denied for Incomplete Subpoena Service

A man holding paperwork

Court: Supreme Court, Kings County, New York

Case: Maria Diaz v. RKR Properties Inc.

Date: June 14, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)






By order to show cause filed on June 8, 2012, RKR Properties, Inc. (hereinafter defendant or movant) moves pursuant to CPLR 2308 and 5231 for an order directing Sandra Estes to show cause why an order should not be issued compelling her to appear for a deposition or in the alternative finding her in contempt of court for failing to comply with the subpoena.

On June 13, 2012, the instant order to show cause was presented for the court's direction on manner and method of service and signature. Estes has not moved to quash or modify the subpoenas or to reschedule the examination before trial.


The instant motion papers contain an affirmation of defendant's counsel and five annexed exhibits labeled A through E. Exhibit A is a copy of the underlying summons and verified complaint. Exhibit B is defendant's verified answer. Exhibit C is plaintiff's verified bill of particulars. Exhibit D contains a copy of the affidavit of service of a subpoena on Sandra Estes, the subpoena itself, and an authorization by Maria Diaz to Brookdale Hospital to release her health information. Exhibit E is a transcribed statement by defendant's counsel made on May 9, 2012.


Sandre Estes is not a party to the instant action. The defendant annexed a copy of the subpoena that was allegedly served on Sandra Estes and the affidavit of service of that subpoena. The subpoena directed Estes to appear for a deposition at 10:00 a.m. at Jay Deitz Court Office, 26 Court Street, Suite 506, Brooklyn, New York on May 9, 2012 to give testimony and directed Estes to produce any relevant information related to the plaintiff's accident.

CPLR 2303 provides as follows:

Service of subpoena; payment of fees in advance. (a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of section three hundred eight of this chapter.

CPLR 308 dictates the methods of service of a summons on an individual. Here the defendant attempted service of the summons pursuant to 308(2). CPLR 308(2) first requires delivery to a person of suitable age and discretion at certain premises. The second requirement is a mailing to either the recipient's last known residence or actual place of business. CPLR 308(2) requires that both delivery and mailing must be taken within 20 days of each other for jurisdiction.

The affidavit of service annexed to the motion papers indicates that a copy of the judicial subpoena was delivered to a person of suitable age and discretion authorized to accept service at her actual place of business. However, the affidavit of service did not reflect a mailing of the subpoena within 20 days of the personal delivery to the person of suitable age and discretion. Having failed to demonstrate compliance with both of the requirements of CPLR 308(2), service was not completed.

Therefore the motion is denied on that basis.

The foregoing constitutes the decision and order of the court.