Majority
p. 975John Murray, Respondent, v Ann Murray, Appellant. [615 NYS2d 146]
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: We agree with the contention of
p. 976
defendant that the court abused its discretion in imposing sanctions against her pursuant to 22 NYCRR 130-1.1 (a) based on her service of a subpoena duces tecum on plaintiffs counsel. That subpoena sought the production of documents that showed the child support payments by plaintiff that were deposited in escrow. Because the documents sought were both material and relevant to defendant’s application for contempt and for counsel fees on the ground that plaintiff willfully failed to abide by a prior court order for child support, service of the subpoena for those records does not meet the definition of frivolous conduct under 22 NYCRR 130-1.1 (c). Consequently, we modify the order by deleting that portion that directed defendant and/or her counsel to reimburse plaintiff’s counsel for his attendance in court caused by service of the subpoena.
We have reviewed the remaining contention of defendant and conclude that it is without merit. (Appeal from Order of Supreme Court, Suffolk County, Dunn, J.—Counsel Fees.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.