Flushing Nat. Bank v. Transamerica Ins. Co.

• Decision Date: 07 December 1987
• Citation: 135 A.D.2d 486,521 N.Y.S.2d 727
• Parties: FLUSHING NATIONAL BANK, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Defendant; Jeffrey Shankman, Nonparty Respondent.
• Court: New York Supreme Court — Appellate Division

Page 727

521 N.Y.S.2d 727

135 A.D.2d 486

FLUSHING NATIONAL BANK, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Defendant Jeffrey Shankman, Nonparty Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1987.

Shea & Gould, New York City (Ronald D. Lefton, of counsel), for appellant.

Goldman & Haftez, New York City (Lawrence S. Goldman, of counsel), for nonparty respondent.

Before MANGANO, J.P., and THOMPSON, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action on a blanket employee fidelity bond and an excess fidelity bond issued by the defendant Transamerica Insurance Co., the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 15, 1986, which denied its motion, inter alia, to compel Jeffrey Shankman, a nonparty witness, to comply with a judicial subpoena duces tecum dated October 29, 1985.

ORDERED that the order is reversed, without costs or disbursements, and the motion is granted to the extent that upon written notice of not less than 10 days, or at such time and place as the parties may agree, Jeffrey Shankman is directed to comply with the judicial subpoena duces tecum dated October 29, 1985, in accordance herewith.

We agree with the Supreme Court that Jeffrey Shankman should not be precluded from invoking his privilege against self-incrimination with respect to any questions to be asked or any documents to be produced in compliance with a judicial subpoena duces tecum dated October 29, 1985 (see, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; Steinbrecher v. Wapnick, 24 N.Y.2d 354, 300 N.Y.S.2d 555, 248 N.E.2d 419, rearg. denied 24 N.Y.2d 1038, 303 N.Y.S.2d 1026, 250 N.E.2d 357; State of New York v. Carey Resources, 97 A.D.2d 508, 467 N.Y.S.2d 876).

Nevertheless, under the circumstances, Shankman should have been compelled to raise his privilege at the deposition with regard to each question to be asked and with respect to each document required to be produced by him (see, State of New York v. Carey Resources, supra ). Whether the privilege should be sustained is to be governed by "the implications of the question, in the setting in which it is asked" (Hoffman v. United States, supra, 341 U.S. at 486, 71 S.Ct. at 818; see, Steinbrecher v. Wapnick, supra ).

"The privilege may only be asserted when the witness has a reasonable cause to apprehend danger from a direct answer (see, Hoffman v. United States, [supra ] [341 U.S.] at 486 ; State of New York v. Skibinski, 87 AD2d 974 ; Southbridge Finishing Co. v. Golding, 208 Misc 846, 852 , affd 2 AD2d 882 ). While the witness is generally the best judge of whether an answer may tend to be incriminating (People v. Arroyo, 46 NY2d 928, 930 [415 N.Y.S.2d 205, 388 N.E.2d 342]; Matter of Grae, 282 NY 428, 434 ; People ex rel. Taylor v. Forbes, 143 NY 219, 230-231, ; Triangle Pub. v. Ferrare, [4 AD2d 591,] 593 ), when the danger of incrimination is not readily apparent, the witness may be required to establish a factual predicate (People v. Priori, 164 NY 459, 465 ; United States...