Matter of Weisel v Hersko 2024 NY Slip Op 31769(U) May 14, 2024 Supreme Court, Kings County Docket Number: Index No. 530534/2023 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. I
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1 of 4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: HON. CAROLYNE. WADE, JSC I In the Matter of the Application of Index No. 530534/2023
ABRAHAM WEISEL, ESQ., DECISION ND ORDER Petitioner,
For an Order Quashing Out-of-State Subpoena Issued by ISAAC HERSKO for Documents and Testimony,
-against-
ISAAC HERSKO,
Respondent. .
Recitation as required by CPLR2219(a) of the papers considered in Petitioner's Motion to
Renew and Reargue
Papers Motion and Affidavits Annexed ..................... .. Answering Affidavits ...................................... .. Reply papers .................................................... . NYSCEF Doc. Nos. 18-21 32-37 38-39
Upon the foregoing cited papers, and after oral argument, Petitioner, Abraham Weisel,
Esq. 's motion to renew/reargue this Court's February 14, 2024 Order (motion seq. #2) is decided
as follows:
This proceeding involves the service of an out-of-state subpoena duces tecum and ad
testificandum by respondent Isaac Hersko ("Respondent") on petitioner Abraham Weisel, Esq.
("Weisel") pursuant to CPLR § 3119 (the Uniform Interstate Depositions and Discovery Act). In
the Petition [NYSCEF Doc. No. 1], Weisel seeks an order, pursuant to CPLR § 2304, to quash
[* 1] Hersko ,
i ction.
"Febru~ Order")
14 th
"A FILED: KINGS COUNTY CLERK 05/17/2024 INDEX NO. 530534/2023 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/20/2024
2 of 4 Hersko's subpoena, dated September 28, 2023 (the "Subpoena") [NY CEF Doc. No. 4], seeking
documents and testimony from him relating to a New Jersey lawsuit brought by Hersko against
his brother captioned, v. Hersko, Superior Court of New Jerse , Essex County, Chancery
Division, Docket Number ESX-C-220-21 (the "New Jersey Action"). Weisel is not a party to the
New Jersey Action. He commenced this special proceeding to quash the Subpoena, contending:
(1) that the Subpoena sought irrelevant information, was overbroad, u duly burdensome, and was
issued in bad faith, and (2) Weisel has no knowledge, information, or documentation concerning
the circ*mstances surrounding the New Jersey Action. Respondent, i opposition to the Petition,
argued that Weisel possesses infonnation relevant to the New Jersey
On February 14, 2024, this Court entered an Order (the 14 th in which it I granted, in part, Petitioner's motion to quash the Subpoena. [NYSCEF Doc. No. 17]. The Court
limited the scope of the Subpoena and ordered Weisel to produce the documents enumerated
therein by February 28, 2024.
Weisel now moves, pursuant to CPLR § 2221(e), in motion sequence two, for leave to
renew the February 14, 2024 Order, and upon renewal, vacating the February Order and
quashing the Subpoena in its entirety. Respondent opposes Weisel's motion.
motion for leave to renew is addressed to the sound discretion of the court" (Atalaya
Asset Income Fund JI, L.P. v 219 Sagg Main, LLC, 206 AD3d 870, 871 [2d Dept 2022]). Pursuant
to CPLR 2221(e), "a motion for leave to renew shall be based upon new facts not offered on the
prior motion that would change the prior determination" and "shall contain reasonable justification
for the failure to present such facts on the prior motion."
The basis for Weisel's renewal motion is that on February 14, 2024, the same day that this
Court issued the February 14 th Order, a hearing was held in the New Jersey Action, during which
2
[* 2] § m, tter rroof
such
[2014], FILED: KINGS COUNTY CLERK 05/17/2024 INDEX NO. 530534/2023 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/20/2024
3 of 4 • I
the judge dismissed all of the Respondent's claims with prejudice. eisel argues that because
there are no longer any viable claims in the New Jersey Actio and no ongoing judicial
controversy, the discovery sought in the Subpoena is no longer ma erial and necessary in the
prosecution or defense of that action. Respondent argues in his opposi ion that because he has not I exhausted all judicial remedies, the disposition of the case is not finai. Indeed, Respondent has
filed a Notice of Appeal. He, therefore, contends that he is still entitle to the documents ordered
by the Court to be produced in its February 14 th Order.
Under CPLR 3101 (a), there "shall be full disclosure of all material and necessary
in the prosecution or defense of an action, regardless of the burden of by "a party," as well
as "any other person, upon notice stating the circ*mstances or reasons disclosure is sought or
required" (CPLR § 3101[a][l], [a](4]; see also Velezv Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d
I 04, 108 [1st Dept 2006] [holding that "[i]t is well settled that the purpose of a subpoena duces
tecum is to compel the production of specific documents that are relevant and material to facts at
issue in a pending judicial proceeding"]). To be considered "material and necessary," the
information sought must "bear [ ... ] on the controversy which will assist preparation for trial by
sharpening the issues and reducing delay and prolixity" (Kapon v Koch, 23 NY3d 32, 38
quoting Allen v Crowell-Collier Pub/. Co., 21 NY2d 403,406 (1968]). In the context of subpoenas
directed at nonparties, the Court of Appeals has held that "so long as the disclosure sought is
relevant to the prosecution or defense of an action, it must be provided by the nonparty" (Kapon,
23 NY3d at 38). Moreover, subpoenas are intended "to compel the production of specific
documents that are relevant and material to facts at issue in a pending judicial proceeding (People
v. Weiss, 671 NYS2d 604 [Sup Ct, New York County 1998]).
3
[* 3] l e oy Order,
°i
Weisel's renewal,
Petiti9n
28, 2023, GRANTED. ofWeisel's
. 7
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4 of 4 I
Given the dismissal of all the parties' claims with prejudice in New Jersey Action, the . I Court finds that the disclosure sought by the Subpoena, as narrowed the February 14 th
is no longer relevant and material to the prosecution or defense the New Jersey Action. I I Accordingly, motion to renew is granted, and upon is granted. The Court's
February 14th Order is vacated, and Weisel's underlying to quash Respondent's
September nonparty out-of-state subpoena is now The branch
motion seeking reargument is denied as moot.
This constitutes the Decision and Order of the court.
Dated: May , 2024
4 ENTER,
Hon. -
[* 4]
