New York Criminal Lawyer Blog

In order to determine whether OCSE is entitled to a protective order denying the disclosure of cancelled check records and financial data, the court should consider the same factors that would be considered on a motion for the issuance of a subpoenas duces tecum. As such, the movant must first satisfy the threshold requirement that the disclosure sought is “material and necessary,” whether the request is directed to a party or non-party (see CPLR §3101[a](1); [a][4]). The plaintiff claims the documents are necessary because the defendant denies receipt of the monies, and therefore, copies of the cancelled checks prove actual receipt so that they can proceed with their action to reclaim the alleged overpayment of child support. Generally, disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR §3101(a)). The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for criminal trial by sharpening the issues and reducing delay and prolixity. The test is one of “usefulness and reason”(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The plaintiff’s need for the cancelled checks appears colorable under this standard because whether or not the funds were actually received is germane to the claim the plaintiff is pressing upon this court. Therefore the first prong of the standard set forth under CPLR § 3101(a)(4) appears to be satisfied.

Where a request for discovery from a nonparty is challenged solely on the ground that it exceeds the permissible scope of matters material and necessary in the prosecution or defense of the action, a motion to quash is properly denied if that threshold requirement is satisfied (see Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482, 483, [2d Dept. 2005) or properly

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