23/23 Communications Corp., d/b/a Communications Diversified v. General Motors Corporation

• Decision Date: 28 April 1997
• Parties: 23/23 COMMUNICATIONS CORP, doing business as Communications Diversified, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: New York Supreme Court

Page 296

660 N.Y.S.2d 296

172 Misc.2d 821

23/23 COMMUNICATIONS CORP, doing business as Communications

Diversified, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

Supreme Court, New York County.

April 28, 1997.

Simpson Thacher & Bartlett, New York City, for defendant.

Kelley Drye & Warren, New York City, for plaintiff.

LEWIS R. FRIEDMAN, Justice.

This motion to quash a trial subpoena presents a question which occurs often at trials and is one about which most counsel have instinctive reactions; yet the issue has not been clearly resolved in the reported cases. The question presented is whether a party may serve a trial subpoena on a corporate party for the production of an employee located out-of-state as a witness.

Plaintiff in the middle of this protracted breach of contract trial issued a trial subpoena ad testificandum to Elaine Zunick, a secretary employed by defendant ("GM"). Ms. Zunick lives and works in Michigan. It appears that from January 1992 to August 1994 Ms. Zunick was the secretary to Benson Woo, who had been a GM employee; Ms. Zunick is sought by plaintiff in an attempt to authenticate document number 21045, which was allegedly handwritten by Mr. Woo in 1986. The subpoena was served on GM in New York. Plaintiff did not attempt service on Ms. Zunick in Michigan. GM contends that the service of the subpoena on it, for the production of a witness from outside the state, is beyond the power of the court.

The law is well settled that the service of a subpoena outside the state is beyond the court's power. Judiciary Law Section 2-b provides that "a court of record has power: 1. To issue a subpoena requiring the attendance of a person found in the state to testify ..." (Peterson v. Spartan Industries, 40 A.D.2d 807, 807-08, 338 N.Y.S.2d 352 [1st Dept.1972] affd, 33 N.Y.2d 463, 354 N.Y.S.2d 905, 310 N.E.2d 513 [1974]; Siemens & Halske GmbH v. Gres, 37 A.D.2d 768, 768, 324 N.Y.S.2d 639 [1st Dept.1971]; Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 234, 479 N.Y.S.2d 528 [2d Dept.1984] ). Based on that general rule plaintiff correctly concluded that it could not serve a subpoena on Ms. Zunick in Michigan. Plaintiff instead served the subpoena on her employer who is obviously subject to the court's jurisdiction.

Plaintiff contends that the subpoena comes within the holding of Standard Fruit & Steamship Co. v. Waterfront Commn. of New York Harbor, 43 N.Y.2d 11, 15, 400 N.Y.S.2d 732, 371 N.E.2d 453 [1977]. In Standard Fruit the Court of Appeals held that the subpoena power of the Waterfront Commission, which is similar to that of the courts except that it extends to both New York and New Jersey, permitted subpoenas to corporations for the production of two corporate officers who were apparently not within either state. The court ruled that "a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction" (43 N.Y.2d at 15, 400 N.Y.S.2d 732, 371 N.E.2d 453).

GM contends that Standard Fruit created "a limited exception" to the prohibition on the service of subpoenas out-of-state. GM relies on the court's language that, it claims, limits the holding in the case to instances where the subpoenaed person "participated in the questioned corporate activity." GM argues that since Ms. Zunick is being subpoenaed only to authenticate a document she was not sufficiently involved in the disputed contract or its alleged breach to have "participated" in it. There is no doubt that New York cases which have cited Standard Fruit have generally used similar phrases. For example in Castro v. Alden Leeds, 144 A.D.2d 613, 615, 535 N.Y.S.2d 73 [2d Dept.1988], defendant's vice-president delivered a manual containing "critical information" and promptly left the court's jurisdiction. Also in Amivest Corp. v. Morgantos N.V., 178 A.D.2d 180, 577 N.Y.S.2d 39 [1st Dept.1991], the court referred to "knowledgeable representative[s]" about the facts in issue. So, too, there is language in Leibowitz v. New York, 95 Misc.2d 183, 184, 406 N.Y.S.2d 676 [Ct.Cl.1978]. The court found that service of individual subpoenas on necessary witnesses was not required.

The court's review of the cases, those cited by the parties and others, does not lead to the conclusion that the Standard Fruit case contained any limitations on the persons who could be subpoenaed by service on their employer which is a party to a New York action. The question the Court of Appeals decided was whether there was the power to issue the subpoena and compel the production of the non-resident employee as a witness. There is nothing in the court's jurisdictional analysis which turns on the witness's degree of knowledge about the case. Despite GM's continual reference in its papers on this motion to a "limited exception" to the rules on the geographic scope of a trial subpoena, there is nothing in Standard Fruit to support that reading. The court simply makes absolutely no statement that the ruling is a limiting exception to the power of the agency issuing the subpoena.

Common sense indicates that the court's power to require the presence of a witness cannot be affected by that witness's centrality to the case. The power of the court would be the same no matter how peripheral or central the witness's testimony, if as Standard Fruit holds, the issue is the power over the party. Moreover, the use of apparently limiting...