Supreme Court, Special Term, New York CountyMar 12, 1980
103 Misc. 2d 485 (N.Y. Misc. 1980)
103 Misc. 2d 485426 N.Y.S.2d 405

March 12, 1980

Shea, Gould, Climenko Casey for petitioner.

Abraham L. Watarz for respondent.

Petitioner made application to withdraw respondent's apartment from the rental market. Thereafter, respondent commenced a proceeding before the New York City Office of Rent and Housing Maintenance, Rent Control Division, charging petitioner with harassment in an effort to force her to vacate her apartment.

In connection with the latter proceeding, petitioner issued a subpoena duces tecum to respondent for the production of certain documents.

The Administrative Law Judge ruled on the subpoena and directed that certain items demanded therein be produced. He later denied petitioner's motion to strike respondent's direct testimony for failure to produce certain documents demanded in the subpoena and which she did not furnish.

In this proceeding, petitioner seeks an order pursuant to CPLR 2308 (subd [b]) compelling compliance with the subpoena.

CPLR 2308 (subd [b]) provides as follows: "Unless otherwise provided, if a person fails to comply with a subpoena which is not returnable in a court, the issuer * * * may move in the supreme court to compel compliance." (Italics added.)

Respondent opposes this motion on the grounds that this court should not substitute its own judgment for that of the Administrative Law Judge.

Consistent with respondent's position is that of Professor David Siegel who points out, in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C2308:8, p 252): "The Advisory Committee noted the existence of a number of provisions in both the consolidated and unconsolidated laws which govern particular agencies, and it intended CPLR 2308 (b) to defer to those provisions. 1st Rep. Leg. Doc. (1957), No. 6(b), p 167."

Such is the plain meaning of the words, "unless otherwise provided".

Inasmuch as a particular provision of the city rent regulations has its own enforcement provisions, and inasmuch as there has been no showing of disobedience by respondent, Karen Ford, of petitioner's subpoena duces tecum, this court is neither empowered to compel the production of documents sought herein, nor to substitute its own judgment for that of the Administrative Law Judge, nor to consider further the reasonableness of petitioner's request. (Matter of City of Albany, 113 Misc. 370; Matter of Frank v Balog, 189 Misc. 1016, affd 272 App. Div. 941.)

Accordingly, petitioner's motion is denied.