Matter of Kapon v. Koch

NEW YORK COUNTY
Civil Practice

New York Law Journal

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Justice Michael Stallman

Petitioners sought to quash subpoenas issued to them to obtain discovery in a California fraud action. The court noted petitioners did not argue they were prejudiced by any purported deficient notice, noting they were not strangers to the dispute between rare wine buyer Koch and Kurniawan, the seller of the allegedly fraudulent wines. Further, it stated even if notice was lacking, the deficiency was cured in Koch's papers. The court continued that Koch demonstrated that the information he sought from petitioners was not reasonably available from Kurniawan or any other source. Also, as Kurniawan sought a stay of the California action based on a pending federal criminal proceeding against him, it would be impossible to participate in discovery or in any other meaningful way in this civil action without implicating his Fifth Amendment rights against self-incrimination. The court stated that given Kurniawan's position, Koch should not be required to depose him before taking petitioners' non-party depositions, ruling New York has no absolute rule that party depositions must be completed before non-party depositions. Thus, petitioners' motion seeking to quash the subpoenas, their depositions and for a protective order was denied.

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