McNair v. Bennett

In related family offense proceedings pursuant to Family Court Act article 8, the mother appeals, by permission, as limited by her brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated October 26, 2005, as granted those branches of the father’s motion which were pursuant to CPLR 2308 (a) to impose a sanction on her for her failure to comply with an order dated August 17, 2005, and so-ordered subpoenaes duces tecum, and awarded the father the sum of $350 plus a statutory penalty in the sum of $50. Ordered that the order is affirmed insofar as appealed from, with costs. The Family Court properly granted those branches of the father’s motion which were to impose a sanction on the mother for her failure to comply with an order dated August 17, 2005 and so-ordered subpoenaes duces tecum. The subpoenaes duces tecum at issue were a form of compulsory process under CPLR article 23 and not a disclosure device, in that they directed the mother to bring specified documents to court for use at a hearing or trial, enabling the court to examine the items and make appropriate direction regarding their use (see CPLR 2301; People v Cortez, 149 Misc 2d 886, 888 [1990]). As such, there was no requirement that the father’s attorney provide an affirmation of a good faith effort to resolve a disclosure dispute (see 22 NYCRR 202.7 [a] [2]; cf. Fanelli v Fanelli, 296 AD2d 373 [2002]; Romero v Korn, 236 AD2d 598 [1997]). Additionally, the sanction imposed by the Family Court pursuant to CPLR 2308 (a) was appropriate as, contrary to the mother’s contention, she did not comply with the order dated August 17, 2005 and the so-ordered subpoenaes duces tecum because the telephone records produced were not from her cellular telephone account and did not correspond to the time period requested, i.e., April 19, 2005 through April 21, 2005. Miller, J.P., Ritter, Goldstein and Lunn, JJ., concur.