Court Quashes Subpoena Based On Two-Year Delay In Seeking Disclosure From A Third Party

On January 28, 2025, Justice Nancy M. Bannon granted a motion to quash a third-party subpoena seeking deposition testimony and the production of documents on the basis that the subpoenaing party had waited too long to seek the disclosures. In Arlus Owners LLC, et al. v. 829 Mad. Ave. LLC, et al., Index No. 653842/2022, the defendant served the subpoena on a real estate broker just before the deadline for completing discovery and filing the note of issue and certificate of readiness. The Court granted the motion to quash, explaining:

As the defendants were always aware that the plaintiffs may seek damages for diminished rental revenue as a result of the alleged breach and fraud, they do not reasonably explain the two-year delay in seeking discovery on that issue, and from a non-party, waiting until just days before all discovery was to be completed. . . . Even if the discovery sought is arguably material, the delay in seeking it indicates that it was not necessary to establish any defense. Indeed, it is the plaintiffs’ burden at trial to establish that it suffered any damages, not the defendants’ burden.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning discovery obligations and seeking disclosures from non-parties. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.