On August 06, 2015 a
Motion-Secondary
was filed
involving a dispute between
Cindy Elias,
and
New York State Department Of Motor Vehicles,
for Other Special Proceeding
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 08/06/2015 12:04 PM INDEX NO. 158126/2015
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of CINDY
ELIAS,
Index No.
Petitioner,
AFFIDAVIT IN SUPPORT
For an Order Pursuant to C.P.L.R. $ 3102(e) OF REQUEST FOR
authorizing the issuance of a Subpoena Duces ORDER PURSUANT TO $ 3102(e)
Tecum and Ad Testificandum upon non-party
New York State Department of Motor
Vehicles, for use inän action titled Elias v.
Elias (Case No. 50 20l3DR006430XXXXSB
in the Circuit
^,
nv), pènding Court of the 15'n
Judicial Circuit in and for Palm Beach
County, State of Florida.
STATE OF NEV/ YORK )
)
COUNTY OF NEW YORK )
DAVID M. LEVY, being duly sworn, deposes and says:
1. I am a member of the bar of this Court and of the firm Kleinberg, Kaplan, V/olff
& Cohen, P.C., co-counsel to petitioner Cindy Elias ("Petitioner"). I am fully familiar with the
facts set forth below, and respectfully submit this affidavit in support of Petitioner's application
pursuant to Section 3102(e) of the Civil Practice Law and Rules for an order issuing a subpoena
duces tecum and ad testificandum upon non-party New York State Department of Motor
Vehicles, pursuant to a Commission issued by the Circuit Court of the l5tl' Judicial Circuit in and
for Palm Beach County, State of Florida (the "Florida Court") on May 18, 2015.
2. Petitioner is the plaintiff in an action styled Cind)¡ Elias v. Howard Elias (Case
No. 50 20l3DR006430XXXXSB FY), a divorce and child custody proceeding pending in the Florida
Court (the "Florida Action"). On May 18, 2015, the Florida Court ordered, and furnished copies
to all counsel of record in the Florida Action, an Agreed Order Appointing Commissioner to
JBIìOMU\2879I 6.r - 08/05/r5
Take Out-of-State Depositions, Duces Tecum (the "Commission"). A certified copy of the
Commission is annexed hereto as Exhibit A.
3. By the issuance of the Commission, the Florida Court ordered and adjudged that
an open commission be issued out of the Florida Court for the production of documents and
examination under oath of a representative of the New York State Department of Motor Vehicles
(the "DMV"), and requested that "any Court having jurisdiction of these witnesses to issue
subpoenas in conformance with the Florida deposition notices and this Order to as to mandate
the witness's appearance at the time and place of the deposition and to produce any and all
requested documents." By the Commission, the Florida court also requested this Court "to assist
in issuing the process so that the deposition as noticed shall go forward."
4. The Florida subpoena for deposition testimony and production of documents
issued pursuant to the Commission issued on July 28,2015 (the "Florida Subpoena") is annexed
hereto as Exhibit B. l
6. A New York subpoena for service upon the DMV, consistent with the foregoing
Commission and Florida Subpoena, is annexed hereto as Exhibit C.
l. The documents and information sought by the requested subpoenas are relevant
and material to Petitioner's prosecution of the Florida Action, and are for a necessary and proper
purpose. For a more complete and detailed recitation of the materiality and necessity of the
documents and testimony sought from the DMV, I refer the Court to the Affidavit of Cindy
Elias, annexed hereto as Exhibit D.
9. No application for this relief has been made previously.
10. This application is not frivolous as defined in 22 N.Y.C.R.R. 130-1.1.
2
JBROM8\2879r 6.r - 08/05/15
WHEREFORE, I respectfully request that Petitioner's application, pursuant to Section
3102(e) of the Civil Practice Law and Rules, be granted, and that this Court approve the issuance
of the attached subpoena duces tecum and ad testificandum, and the accompanying Order,
for service upon non-party New York State Department of ehicles, pursuant to the
Commission issued by the Florida Court.
Sworn to me before this
d¿uy of August 2015
Notary Public
E¡gfitr.
J
JBiìOM8\28791 I - 08/05/r
6. 5
Document Filed Date
August 06, 2015
Case Filing Date
August 06, 2015
Category
Other Special Proceeding
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FILED: NEW YORK COUNTY CLERK 08/06/2015 12:04 PM INDEX NO. 158126/2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of CINDY ELIAS, Index No. Petitioner, AFFIDAVIT IN SUPPORT For an Order Pursuant to C.P.L.R. $ 3102(e) OF REQUEST FOR authorizing the issuance of a Subpoena Duces ORDER PURSUANT TO $ 3102(e) Tecum and Ad Testificandum upon non-party New York State Department of Motor Vehicles, for use inän action titled Elias v. Elias (Case No. 50 20l3DR006430XXXXSB in the Circuit ^, nv), pènding Court of the 15'n Judicial Circuit in and for Palm Beach County, State of Florida. STATE OF NEV/ YORK ) ) COUNTY OF NEW YORK ) DAVID M. LEVY, being duly sworn, deposes and says: 1. I am a member of the bar of this Court and of the firm Kleinberg, Kaplan, V/olff & Cohen, P.C., co-counsel to petitioner Cindy Elias ("Petitioner"). I am fully familiar with the facts set forth below, and respectfully submit this affidavit in support of Petitioner's application pursuant to Section 3102(e) of the Civil Practice Law and Rules for an order issuing a subpoena duces tecum and ad testificandum upon non-party New York State Department of Motor Vehicles, pursuant to a Commission issued by the Circuit Court of the l5tl' Judicial Circuit in and for Palm Beach County, State of Florida (the "Florida Court") on May 18, 2015. 2. Petitioner is the plaintiff in an action styled Cind)¡ Elias v. Howard Elias (Case No. 50 20l3DR006430XXXXSB FY), a divorce and child custody proceeding pending in the Florida Court (the "Florida Action"). On May 18, 2015, the Florida Court ordered, and furnished copies to all counsel of record in the Florida Action, an Agreed Order Appointing Commissioner to JBIìOMU\2879I 6.r - 08/05/r5 Take Out-of-State Depositions, Duces Tecum (the "Commission"). A certified copy of the Commission is annexed hereto as Exhibit A. 3. By the issuance of the Commission, the Florida Court ordered and adjudged that an open commission be issued out of the Florida Court for the production of documents and examination under oath of a representative of the New York State Department of Motor Vehicles (the "DMV"), and requested that "any Court having jurisdiction of these witnesses to issue subpoenas in conformance with the Florida deposition notices and this Order to as to mandate the witness's appearance at the time and place of the deposition and to produce any and all requested documents." By the Commission, the Florida court also requested this Court "to assist in issuing the process so that the deposition as noticed shall go forward." 4. The Florida subpoena for deposition testimony and production of documents issued pursuant to the Commission issued on July 28,2015 (the "Florida Subpoena") is annexed hereto as Exhibit B. l 6. A New York subpoena for service upon the DMV, consistent with the foregoing Commission and Florida Subpoena, is annexed hereto as Exhibit C. l. The documents and information sought by the requested subpoenas are relevant and material to Petitioner's prosecution of the Florida Action, and are for a necessary and proper purpose. For a more complete and detailed recitation of the materiality and necessity of the documents and testimony sought from the DMV, I refer the Court to the Affidavit of Cindy Elias, annexed hereto as Exhibit D. 9. No application for this relief has been made previously. 10. This application is not frivolous as defined in 22 N.Y.C.R.R. 130-1.1. 2 JBROM8\2879r 6.r - 08/05/15 WHEREFORE, I respectfully request that Petitioner's application, pursuant to Section 3102(e) of the Civil Practice Law and Rules, be granted, and that this Court approve the issuance of the attached subpoena duces tecum and ad testificandum, and the accompanying Order, for service upon non-party New York State Department of ehicles, pursuant to the Commission issued by the Florida Court. Sworn to me before this d¿uy of August 2015 Notary Public E¡gfitr. J JBiìOM8\28791 I - 08/05/r 6. 5