Opinion
March 11, 1996
Appeal from the Supreme Court, Westchester County (Barone, J.).
Ordered that the order is modified by deleting the provisions thereof which granted the branches of the defendants' motions which were to quash item three and items seven through ten of the subpoena, and substituting therefor a provision denying those branches of the motions; as so modified the order is affirmed insofar as appealed from, and it is further,
Ordered that the time for KPMG Peat Marwick to respond to those items is extended until 20 days after service upon it of a copy of this decision and order with notice of entry; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Contrary to the defendants' contention, the instant subpoena duces tecum served upon KPMG Peat Marwick by the plaintiff, the judgment creditor, was a proper vehicle for discovering whether the defendant Petroship Partners Limited I (hereinafter Petroship) and the defendants, the general and limited partners of Petroship, were indebted to the judgment debtor the defendant Great Marine Limited (hereinafter Great Marine). Prior to commencing a special proceeding to recover debts owned by a judgment debtor as against third persons (see, CPLR 5225, 5227), a judgment creditor may utilize a disclosure subpoena (see, CPLR 5223, 5224) to discover facts in support of bringing the special proceeding (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5223:1, at 214; C5225:1, at 240).
In our prior decision and order (see, Ateni Mar. Corp. v Great Mar., 215 A.D.2d 709), we reversed the Supreme Court's order entered August 11, 1993, and reinstated the complaint in its entirety as against Petroship and the defendants, the general and limited partners of Petroship. Thus, documents demonstrating the existence of an agency relationship between Great Marine and Petroship and supporting a claim that the sale proceeds were fraudulently conveyed by Great Marine to Petroship and from Petroship to its general and limited partners are "relevant to the satisfaction of the judgment" (CPLR 5223). Therefore, the Supreme Court improperly granted the motion to quash item three and items seven through ten of the subpoena duces tecum.
The plaintiff's remaining contentions are without merit. Bracken, J.P., Rosenblatt, Miller and Friedmann, JJ., concur.