Background

Plaintiff commenced the above action for divorce with the filing of the summons with [*2]notice on September 2, 2011. Defendant appeared in the action and filed an answer on February 14, 2012. As of the date of commencement of the action, there were no unemancipated children of the parties and by stipulation of settlement dated June 16, 2013, the parties resolved grounds for divorce and all ancillary issues. On June 13, 2013, both parties and their counsel appeared before the Court and after allocution proceeded to inquest. The judgment of divorce was signed September 25, 2013 and entered in the Office of the County Clerk on October 17, 2013.

Defendant’s initial post judgment application filed by his current counsel, Ilasz & Associates on April 21, 2014 sought to compel his prior counsel to turn over defendant’s entire matrimonial file (mot. seq. 4). Contemporaneously with that application, defendant filed a separate legal malpractice action against his prior counsel in the divorce action, the instant non-parties here (RG v Poplawski, Zenon et. al. 4734/14) . By order dated October 1, 2014, this Court denied defendant’s application to compel the release of prior counsel’s matrimonial file, without prejudice to his right to address his request in the context of the pending malpractice action before Hon. Wayne Saitta.

Thereafter, defendant filed an order to show cause to vacate the September 25, 2013 judgment of divorce (mot. seq. 5) alleging defendant’s incapacity at the time of the Court’s allocution. On plaintiff’s default, that application was referred to the Special Refree to hear and determine. While the motion to vacate the divorce judgment (mot. seq. 5) was pending before this Court, defendant moved in the malpractice action to appoint defendant’s sister Dorota Barbara Powroznik as defendant’s guardian pursuant to Mental Hygiene Law §81.18.[FN2] That application was denied and the entire action was dismissed by Hon. Saitta, without prejudice to commence an Article 81 proceeding (order dated July 9, 2015). Defendant failed to disclose to this Court the July 9, 2015 order issued in the legal malpractice action and at the July 17, 2015 appearance. In light of Hon. Saitta’s order and the instant applications, this Court’s referral order to the Special Referee has since been stayed.

Discussion
Having reviewed the papers in support and in opposition to the respective applications, the Court grants the non-party motion to quash and denies defendant’s motion for contempt for the reasons set forth herein.

The non party subpoenas at issue state:

“WE COMMAND YOU, that all business and excuses being laid aside, you and each of you appear and attend at the office of Ilasz & Associates, One Maiden Law- 9th Floor, New York, New York 10038 on the 5th day of August, 2015 at 9:30 o’clock in the forenoon and at an recessed or adjourned date to give testimony in this action on the part of the plaintiff(s) and that you bring with you, and produce at the time and place aforesaid true copies of:
A) All documents comprising defendant’s entire legal file regarding any of the affairs and [*3]matters of the defendant, including, but not limited to, all billing statements, records of payment, etc.
now in your custody or control and all other writings or things, in whatever form maintained, whether electronic or otherwise, now in your custody, as well as all other deeds, evidence and writings, which you have in your custody or power, concerning this matter”Pursuant to CPLR §3101(a) “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, by….(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” Here, the subpoenas state only the documents sought and set forth no circumstances and/or reasons for same as required by CPRL §3101(a). Simply put, defendant’s subpoenas fail to state on their face or via an accompanying notice, “the circumstances or reasons such disclosure is sought or required” (In the Matter of Kapon v Koch, 23 NY3d 32 [2014]). While courts are permitted to overlook this procedural defect where the subpoenaing party’s opposition papers to a motion to quash articulate the need for the discovery sought (Velez v Hunts Point Multi Service Center, Inc., 29 AD3d 104 [2010]) the Court declines to do so here in light of myriad defects contained in the subpoenas such that remedying the instant defect under CPLR § 3101(a) does not entirely cure the remaining defects contained in the subpoenas as discussed below.
As to additional defects, pursuant to CPLR §3106(b), where the person to be examined is not a party, he shall be served with a subpoena and, unless the court orders otherwise…such subpoena shall be served at least twenty days before the examination. Here, as supported by defendant’s affidavits of service annexed to his motion for contempt, the subpoenas were served on July 27, 2015, nine days prior to the August 5, 2015 examination date commanded in the subpoenas. Further, although the subpoena includes “WITNESS, Honorable Rachel Adams, one of the Justices of said Court, 360 Adams Street, Brooklyn, New York, on the 20th day of July, 2015”, the subpoenas were not issued by this Court and this Court did not, either on motion or on written notice, dispense with the twenty (20) day service requirement in CPRL §3106(b).

Further, pursuant to CPLR §8001(a) – (b), any person whose attendance is compelled by a subpoena…shall receive for each day’s attendance fifteen dollars for attendance fees….If a witness who is not a party…is subpoenaed to give testimony, or produce books, papers and other things at an examination before trial, he shall receive an additional three dollars for each day’s attendance. The subpoenas command Poplawski to “appear and attend…to give testimony” and to bring and produce copies of the aforestated items. Contrary to defendant’s contention that a note appears next to the signature lines of the subpoenas indicating that delivery of the items sought will be accepted in lieu of an appearance, the Court finds that the affirmative command contained in the subpoena directs the non parties to appear “and” produce the documents sought and does not make clear that mere production of documents would satisfy the subpoena. The parties do not dispute, as annexed to Poplawski’s moving papers, that each subpoena was accompanied by a $15 money order, while the fee for a non-party appearance is an additional three dollars per day, or $18.

Even if the Court accepted defendant’s argument that mere production of documents suffices, such subpoenas would then need to comply with CPLR §3120 “discovery and production of documents and things for inspections, testing, copying or photographing” which [*4]requires notice specifying the time, which “shall not be less than twenty days after service of the notice or subpoena.” Thus, defendant runs into the same service issues regardless of whether the Court considers Poplawski’s application under CPLR §3106(b) or CPLR §3120 (2).

Notwithstanding the facial deficiencies in defendant’s subpoenas, the Court takes note that the very documents the defendant now seeks by way of subpoenas are the same documents defendant previously sought to compel and which relief this Court denied prior to the instant motion to vacate the divorce judgment and prior to the dismissal of the action before Hon. Saitta. This Court’s October 2014 order was made without prejudice to defendant’s right to seek same in the context of the legal malpractice action wherein the instant non-parties are the named defendants. Taking judicial notice of the filings in that action, it is clear that since denying defendant’s motion to compel, he has not sought this relief in the other action. The Court finds persuasive, Poplawski’s argument that, under the guise of defendant’s application to vacate the judgment of divorce, defendant is using the instant subpoenas as a vehicle to obtain prior counsel’s matrimonial file.

Lastly, defendant’s lack of capacity during the divorce proceedings is the premise of defendant’s post judgment application to vacate the divorce judgment. Defendant’s counsel has remained steadfast in their position that defendant currently lacks capacity to appear in this action without a guardian and that his current mental state is unchanged from his mental state throughout the divorce action. Thus, the Court finds merit in Poplawski’s argument that defendant’s counsel should not be permitted to seek relief from affirmative legal steps taken on defendant’s behalf (i.e. issuing subpoenas) while at the same time raising the issue of defendant’s competency, which issue remains unresolved.

The Court denies without prejudice to renew on proper papers Poplawski’s request for sanctions pursuant to 22 NYCRR 130.1(c). This section provides that any party or attorney may be awarded “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct.” The Court finds merit in Poplawski’s request as the technical defects in the subpoenas evidence a patent failure to comply with multiple provisions of the CPLR and, notwithstanding Poplawski’s July 29, 2015 letter request to withdraw the subpoenas, defendant proceeded and in fact filed a contempt application. However, Poplawski’s papers fail to include in any affirmation or supporting documentation the actual expenses and/or reasonable attorney’s fees incurred in connection with the instant applications. As such, the Court has no basis from which to assess an award of sanctions.

In light of the above, Poplawski’s motion to quash the subpoenas is granted. From there it follows that defendant’s motion for contempt for failure to comply with same must be denied.

As indicated on the record and pursuant to the Court’s order issued on the last court date, the referral to the Special Referee is stayed. This order remains in effect, pending the appropriate application before the assigned justice in the Article 81 Part to appoint a guardian, if appropriate, with the specific authority to pursue the post judgment order to show cause pending before this Court (mot. seq. 5).

This constitutes the decision and order of the Court. Poplawski’s counsel is directed to serve the within decision and order on notice to defendant’s counsel within fourteen (14) days of entry in the Office of the County Clerk.