Plater v. Cortland Memorial Hospital

—Appeal from an order of the Supreme Court (O’Brien III, J.), entered November 19, 1997 in Cortland County, which, inter alia, denied petitioner’s application pursuant to CPLR 2302 (b) for the issuance of a subpoena duces tecum. Petitioner, acting pro se, brought a motion before Supreme Court pursuant to CPLR 2302 (b) seeking the issuance of a subpoena duces tecum directing respondent to produce certain medical records pertaining to two witnesses who testified against him at his criminal trial. Petitioner sought this information in connection with a contemplated CPL 440.10 motion. Supreme Court denied the motion and we affirm. Generally speaking, “[a] judicial subpoena is not issued in the abstract, but ‘requires the context of some action or proceeding’ ” (People v Weiss, 176 Misc 2d 496, 499, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C2301:4, at 236; see, People v Jones, 160 Misc 2d 246, 248; Matter of Blake, 51 Misc 2d 42). Here, there is no pending judicial proceeding and it is well settled that a subpoena duces tecum may not be [679] used for the purpose of discovery (see, People v Carpenter, 240 AD2d 863, 864, lv denied 90 NY2d 902; People v Jones, supra, at 248). Cardona, P. J., White, Peters, Carpinello and Graffeo, JJ., concur. Ordered that the order is affirmed, without costs.