964 Dean Acquisition Group v. Dean St. Realty Capital
Justice Francois Rivera
Petitioner 964 Dean Acquisition Group sought an order directing the clerk of the Subpoena Record room to enter trial subpoenas served in this action. Petitioner's counsel stated this was a special proceeding which sought a turn over of assets from judgment debtors Thomas and Duncan. The court noted petitioner failed to explain what the act of entering a record entailed. It noted petitioner moved ex parte under CPLR 2001 to direct the clerk to enter records it received in response to trial subpoenas without waiting for a note of issue to be filed to enter the documents. The court ruled, contrary to petitioner's contention, the relief it sought could not be obtained by an ex parte application. It stated the relief sought must be pursued via an Article 78 proceeding for mandamus to compel, which must be commenced by notice of petition served on the party sought to be compelled, unless the court granted an order to show cause to be served in lieu of a notice of petition. The court stated the instant application did not comply with the requirements for mandamus to compel. It further found CPLR 2001 was inapplicable to the relief sought, denying petitioner's ex parte application.