Henriques v. Boitano

In Henriques v. Boitano (NYLJ, Oct. 27, 1999, at 27, col 3 [Civ Ct, NY County], affd, 6 Misc. 3d 129A, 800 N.Y.S.2d 347, NYLJ, Aug. 29, 2000, at 22, col 2 [App Term, 1st Dept], mod as to fees304 A.D.2d 467, 758 N.Y.S.2d 318, 2003 NY Slip Op 13347 [App Div, 1st Dept 2003], petitioner's counsel issued, without notice to respondents, subpoenas duces tecum indicating that the information could be sent directly to the office of counsel for the petitioner in order to obviate the need for an appearance in court. The Appellate Term held that the subpoenas were improper due, inter alia, to the inclusion of "cover letters which, as the motion court accurately described, were 'calculated to yield a turnover of documents directly to Petitioner's counsel.' " (6 Misc. 3d 129A, NYLJ, Aug. 29, 2000, at 22, col 2.) The court further found that suppression of the information obtained was appropriate since the course followed by the attorney was at "variance with acceptable discovery practice." (6 Misc. 3d 129A, NYLJ, Aug. 29, 2000, at 22, col 2 [internal quotation marks omitted], quoting Matter of Beiny, 129 A.D.2d 126, 133, 517 N.Y.S.2d 474 [1st Dep't 1987], appeal dismissed 71 N.Y.2d 994, 524 N.E.2d 879, 529 N.Y.S.2d 277 [1988].) In addition, it upheld the propriety of sanctions for the conduct which it agreed was frivolous.