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DOUGLAS ELLIMAN, LLC v. TWP REAL ESTATE, LLC

Index No. 152478/14. Appeal No. 12726. Case No. 2019-5816.

189 A.D.3d 614 (2020)

134 N.Y.S.3d 711

2020 NY Slip Op 07700

Douglas Elliman, LLC, Appellant, v. TWP Real Estate, LLC, Respondent, et al., Defendant. Seymour J. Weinberg, CPA, Nonparty Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 22, 2020.

Attorney(s) appearing for the Case

Lieb At Law, P.C., Smithtown ( Mordy Yankovich of counsel), for appellant.

Marco & Sitaras, PLLC, New York ( Gerasimos Liberatos of counsel), for respondent.

Concur—Acosta, P.J., Oing, Scarpulla, Mendez, JJ.

At the outset, we note that plaintiff moved to compel the nonparty's compliance with its subpoena duces tecum under the incorrect subdivision of CPLR 2308. Because the subpoena was issued by an officer of the court—namely, plaintiff's counsel—it was a judicial subpoena, and therefore CPLR 2308(b)(1), which applies only to nonjudicial subpoenas, was inapplicable (see Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C2308:1)....

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