Riglioni v. Chambers Ford Tractor Sales, Inc. , 757 N.Y.S.2d 888 ( 2003 )

In an action to recover damages for personal injuries, Burns and Roe Services Corporation appeals from (1) an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 14, 2002, which, upon the denial of the motion of the defendant, Congdon Associates Distributing Co., to hold it in contempt of court, directed it to disclose the materials sought in a subpoena and appear for a nonparty deposition, and (2) an order of the same court, also dated August 14, 2002, which denied its cross motion for a protective order pursuant to CPLR 3103.

Ordered that the order dated August 14, 2002, which directed certain discovery, is modified by adding thereto a provision specifying that any expenses incurred in providing the discovery shall be borne by the defendant Congdon Associates Distributing Co.; and it is further,

Ordered that the order dated August 14, 2002, which denied the nonparty appellant’s cross motion for a protective order, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the nonparty appellant.

The Supreme Court erred in failing to include a provision defraying discovery expenses incurred by the nonparty appellant (see CPLR 3120 [b]). However, the Supreme Court properly denied the nonparty appellant’s motion for a protective order with regard to the discovery sought in the subpoena previously served upon it. The nonparty appellant failed to move to quash the subpoena (see Fabbricatore v Lindenhurst Union Free School Dist., 259 AD2d 656 [1999]). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.