New York Criminal Lawyer Blog
2011 NY Slip Op 52316
Russell B. Jenkins, Plaintiff(s),
v.
Denise McKinney, Defendant(s).
057725/2009
Civil Court of the City of New York, Queens County
Decided on November 18, 2011
Appearances of counsel:
Plaintiff’s Counsel: Ira Bierman, Esq., Syosset, New York;
For OCSE: Elizabeth Haynes, Esq., Of Counsel Michael Cardozo, Esq. Corporation Counsel of the City of NY, New York, New York
Richard G. Latin, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion by the for an order granting a protective order against plaintiff’s subpoena and/or quashing the subpoena pursuant to CPLR §§2304, 2307 and 3103.
Papers Numbered
Notice of Motion – Affidavits – Exhibits – Service
1
Amended Notice of Motion- Exhibits – Service
2
Affirmation in Opposition – Exhibits – Service
3
Reply Affirmation – Exhibits – Service
4
This motion presents an issue an issue of first impression; that is, whether records from (the New York City Human Resources Administration, Office of Child Support Enforcement,) New York State Child Support Management System database, may be subpoenaed for use in an action by a former custodial parent seeking to recoup alleged overpayments in a Civil Court
Page 2
action. For the reasons that follow, this Criminal Court concludes that such records should not be ordered disclosed by the Court.
The Office of Child Support Enforcement (hereinafter “OCSE”) moves to quash the plaintiff’s court-ordered subpoena duces tecum. OCSE contends that the plaintiff failed to comply with New York Civil Procedure Law Section (“CPLR”) §2307 by failing to give OCSE at least one day’s notice of the motion of the criminal subpoena prior to its issuance. Additionally, OCSE requests the Court to grant a protective order against the plaintiff’s subpoena pursuant to CPLR § 3103 because the plaintiff’s subpoena seeks confidential information.
Pursuant to CPLR § 2307, a party wishing to serve a judicial subpoena duces tecum on any governmental agency must afford the city agency at least one day’s notice to object to the issuance of the subpoena on legitimate grounds. The purpose of this one-day period is to adequately afford the city agency an opportunity to make an application to prevent the inappropriate disclosure of any subpoenaed material. (See People v Santos, 64 NY2d 702 [1984]). However, this Court finds that this contention is rendered moot by the fact that the plaintiff in this case has taken advantage of a full and fair opportunity to oppose this subpoena duces tecum via the instant motion to quash. (See People v. Duran, 2011 NY Slip Op 21162; 32 Misc 3d 225; 921 N.Y.S.2d 826; 2011 NY Misc. LEXIS 2069 [Crim. Ct. Kings Co. 2011).
Next, OCSE contends that this Court should grant a protective order pursuant to CPLR §3103 preventing the disclosure sought by the plaintiff because the information is confidential. Pursuant to CPLR §3103(a) “[t] he court may make a protective order denying, limiting, to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”.