Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.Papers NumberedNotice of Motion and Supplemental Affirmation and Affidavits. Annexed 1, 2, 3,4Affirmation in Opposition 5Affirmation In Reply 6DECISION/ORDER Upon the foregoing, cited papers, the Decision and Order on this Motion are as follows:Petitioner commenced this holdover proceeding against Respondent seeking possession on the ground of nonprimary residence. A trial of this proceeding has already commenced and has been adjourned for continued trial to September 27, 2018. Petitioner now moves for an order directing payment of use and occupancy, directing Respondent to provide access to Petitioner to repair conditions in the subject premises, and permitting Petitioner to serve a subpoena ad testificandum. Petitioner also moves in limine to preclude Respondent from introducing certain evidence at trial.At oral argument of the motion, Petitioner acknowledged that Respondent paid the use and occupancy for June of 2018 and Respondent agreed to pay use and occupancy for July and August of 2018. Respondent expressed that she wished to withhold use and occupancy for September of 2018 because of repairs that had to be done. The parties agreed on the record at oral argument of this motion to resolve Petitioner’s motion for access to the subject premises to repair conditions. The Court therefore holds so much of Petitioner’s motion as seeks payment of use and occupancy and access in abeyance until at least the trial date on September 27, 2018 to check on the parties’ compliance with various of their representations made in Court.The Court had previously granted Respondent’s motion to quash subpoenas duces tecum Petitioner had served on some entities because Petitioner’s counsel received the subpoenaed materials, reviewed them, and did not timely reveal to Respondent’s counsel that he had received the subpoenaed materials. The Court also previously denied Petitioner’s motion to reargue. Petitioner now moves for leave to serve subpoenas ad testificandum on the entities who Petitioner had previously served subpoenas duces tecum on.While Respondent argues in opposition that such a motion amounts to little more than an attempt to circumvent the prior two orders of the Court, the right to issue a subpoena ad testificandum is absolute. Evercore Partners Inc. v. Lazard Freres & Co., LLC. 2011 N.Y. Misc. LEXIS 5243, 3-4 (S. Ct. N.Y. Co. 2011), citing Hirshfield v. Craig. 239 N.Y. 98, 117 (1924). Even an assertion of a privilege is not sufficient to quash a subpoena ad testificandum in advance of a witness’ testimony. Beach v. Shanley, 62 N.Y.2d 241, 248 (1984), New York State Com, on Government Integrity v. Congel, 156 A.D.2d 274,280 (1st Dept. 1989). The Court therefore grants Petitioner’s motion to serve subpoenas ad testificandum, without prejudice to any evidentiary objections Respondent wishes to make on the grounds that testimony Petitioner elicits would have the effect of circumventing the Court’s prior order, which are reserved for such time as such subpoenaed witnesses may testify.Petitioner moves, to preclude Respondent from introducing evidence at trial Respondent has subpoenaed from certain non-parties (“the subpoenaed records”). At a pre-trial stage of this proceeding, Petitioner moved for leave to obtain discovery of Respondent, annexing to its motion a proposed demand that sought production of, inter alia, “statements of admission to any hospital, nursing, or health care facility” (“Petitioner’s demand for medical records”) and “books, records, memoranda, documents and other evidence bearing upon Petitioner’s cause of action and any affirmative defenses” (“the catch-all demand”). The Court granted Petitioner’s motion by an order dated March 11, 2015 (“the March 2015 order”), directing Respondent to produce documents responsive to Petitioner’s demands. The March 2015 order permitted Respondent to aver that she could not produce documents not in her possession or control.Petitioner then moved to preclude Respondent from introducing evidence that Respondent did not produce in discovery. The Court granted that motion by an order dated October 30, 2015 (“the October 2015 order”) which stated, “Respondent is precluded from submitting any further documents not to date provided in response to [Petitioner's discovery requests... Respondent may if necessary subpoena any records in support not as part of Petitioner's discovery requests."Respondent then served trial subpoenas on various medical entities, seeking production of the subpoenaed records (for the purpose of showing Respondent's address). Petitioner moved to quash those subpoenas. The Court denied that motion by an order dated December 12, 2016, without prejudice to a motion in limine before the trial part, which Petitioner now makes.As the March 2015 order contemplated that Respondent would not produce documents that are not in her possession or control, and as the October 2015 order explicitly stated that Respondent could subpoena records that were not a part of Petitioner's discovery requests, then the October 2015 order logically would not preclude documents not in Respondent's possession or control. Petitioner does not refute the proposition that Respondent does not possess the medical records she subpoenas. Rather, Petitioner argues that the subpoenaed records have been in Respondent's control.Normally, a party cannot be compelled to produce documents which are not in his or her possession, Sagiv v. Gamache. 26 A.D.3d 368, 369 (2nd Dept. 2006), Euro-Central Corp. v. Dalsimer, Inc., 22 A.D.3d 793, 794 (2nd Dept. 2005), and a record in the hands of another entity should be obtained from that entity. Sprague v. International Business Machines Corp., 114 A.D.2d 1025 (2nd Dept. 1985). Be that as it may. Petitioner cites Commonwealth of the N. Mar. I. v. Canadian Imperial Bank of Commerce. 21 N.Y.3d 55 (2013) for the proposition that Respondent effectively had control over her medical records. Commonwealth of the N. Mar. I., supra, 21 N. Y.3d at 55 found the omission of the word '"control" significant in interpreting the obligations that CPLR §5225(b) imposes on particular entities, as "control" means a "practical ability to request from, or influence, another party with the desired discovery documents." Id. at 62. Petitioner argues that Respondent had "control" of the subpoenaed records insofar as anyone can obtain their medical records from a medical provider.Commonwealth of the N. Mar. I., supra. 21 N.Y.3d at 55, itself dealt with the question of the extent of a bank's control over documents held by a subsidiary of the bank. Analyzing a similar relationship between a party and an entity holding documents, a party has "control" over documents held by an auditing firm that a party was solely responsible for hiring and paying, Main Place Pharmacy Corp. v. Cent. Buffalo Project Corp., 55 A.D.2d 1007 (4lh Dept. 1977), or a party's accountant. Matter of Schaefer, 2013 N.Y. Slip Op. 30719(U), 6 (Sur. Ct. Nassau Co.). In connection with requested federal W-2 forms, a party is deemed to have control of documents filed with a federal agency from which the party can obtain copies. Matter of Bernfeld, 43 Misc.3d 1208(A)(Sur. Ct. Nassau Co. 2014). With regard to medical records, at least one Court has held that a written report from a treating physician falls within the "control" of the party, even if the report is not in the party's actual possession. Richard v. Kerwin, 53 Misc.3d 1213(A)(S. Ct. Monroe Co. 2016).However, the issue Petitioner presents is not whether Respondent should produce documents but whether the Court should preclude Respondent from introducing evidence at trial. In order to preclude Respondent from introducing evidence at trial, Petitioner must prove that Respondent's failure to produce has been willful or contumacious, Corrigan v. N.Y.C. Transit Auth., 144 A.D.3d 495, 496 (1st Dept. 2016), or that Respondent has engaged in "intentional misconduct." Ouinn v. City Univ. of N.Y., 43 A.D.3d 679,680 (1st Dept. 2007). A party's failure to produce medical records is not willful or deliberate for the purposes of discovery sanctions when the party represents that it did not have possession of the medical records. Lawyer v. Albany OK Cab Co., 142 A.D.2d 871,872 (3rd Dept. 1988), a proposition consistent with the typical manner in which parties obtain medical records in discovery, which is to have the producing party execute an authorization enabling the party seeking production to obtain the documents directly from the medical provider. Baez v. Pathmark Supermarkets, 228 A.D.2d 629, 630 (2nd Dept. 1996).Furthermore, Petitioner's demand for medical records only sought production of records of Respondent's "admissions" to medical facilities. The documents Respondent subpoenaed do not seek records of "admissions." Accordingly, the Court's prior preclusion of documents "not to date provided in response to [P]etitioner’s discovery requests” in the October 2015 order would not apply to the subpoenaed materials. Petitioner argues that the October 2015 order applies to the subpoenaed records anyway because the catch-all demand covers everything, essentially, including the subpoenaed records.However, the October 2015 order explicitly permits Respondent to subpoena records that were not a part of Petitioner’s document demands. Taking Petitioner’s argument to its logical extension, the catch-all demand would render the Court’s permission to Respondent to subpoena other materials without effect. Petitioner’s reliance on this awkward interpretation of the October 2015 order undermines its argument. Cf. EIFS. Inc. v. Morie Co., 298 A.D.2d 548, 549-50 (2nd Dept. 2002)(a failure to produce is not willful or contumacious given an ambiguity in a conditional order of preclusion). Moreover, discovery in a special proceeding is only permitted by leave of Court, CPLR §408, and a party may only obtain discovery by, inter alia, a document demand carefully tailored to the party’s cause of action. Matter of Georgetown Unsold Shares, LLC v. Ledet, 130 A.D.3d 99, 106 (2nd Dept. 2015), Lonray, Inc. v. Newhouse, 229 A.D.2d 440, 440-41 (2nd Dept. 1996), New York University v. Farkas, 121 Misc.2d 643, 647 (Civ. Ct. N.Y. Co. 1983)(Saxe, J.). A catch-all demand is not “carefully tailored” and the Court effectively qualified the leave it granted Petitioner to obtain discovery and discovery sanctions against Respondent with the permission it granted Respondent to subpoena documents Petitioner did not demand.Accordingly, the Court denies Petitioner’s motion to preclude Respondent from introducing the subpoenaed materials at trial. The matter remains on the Court’s calendar for trial on September 27, 2018.This constitutes the decision and order of this Court.Dated: September 13, 2018New York, New York
