| Reyes v Riverside Park Community (Stage I), Inc. |
| 2009 NY Slip Op 01012 [59 AD3d 219] |
| February 10, 2009 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Naomi Reyes, Respondent, v Riverside Park Community (Stage I), Inc., et al., Appellants, et al., Defendants. |
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Madeline Lee Bryer, New York, for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 23, 2008, which denied defendants-appellants' motion for an order directing the issuance of a commission pursuant to CPLR 3108 to examine a nonparty witness in California, unanimously affirmed, with costs.
The motion court properly denied the motion since "absent allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that 'the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination', the [appellants have] failed to demonstrate that a commission is 'necessary or convenient' " (Susan A. v Steven J. A., 141 AD2d 790, 791 [1988] [citation omitted], quoting Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 [1984]; see also Lewis v Baker, 279 AD2d 380, 380-381 [2001]).
Motion seeking leave to strike portions of the reply brief denied.
Concur—Tom, J.P., Saxe, McGuire, Moskowitz and Freedman, JJ.