In a March 29, 2011 decision by Justice Driscoll, the court denied the defendants’ motion to quash amended subpoenas duces tecum served by the plaintiff on non-party HSBC Bank seeking the disclosure of personal and corporate bank records for the defendant corporation, of which the plaintiff was a minority shareholder, and the individual defendant, who was the corporation’s majority shareholder and whom the plaintiff alleged wasted and diverted the corporations’ assets. In denying the motion, the court found that the amended subpoenas complied with CPLR § 3101(a)(4) because they: (a) corrected procedural deficiencies contained in previously issued subpoenas in that they stated the specific reason why disclosure was sought from the non-party; (b) provided adequate notice to HSBC; and (c) sought documents that could be relevant to the issue of whether the individual defendant misappropriated the corporation’s funds. The court also permitted the subpoenas to stand upon finding that the plaintiff need not establish that special circumstances warrant disclosure from the non-party, in light of the Second Department’s decision in Kooper v Kooper, disapproving of the need to show special circumstances when issuing a subpoena duces tecum to non-parties other than expert witnesses.
Gilani v Kumar, Sup Ct Nassau County, March 29, 2011, Driscoll, J, Index No. 19098-10