Majority
Order, Supreme Court, New York County (James Yates, J.), entered on or about December 21,1999, which denied nonparty appellant New York City Police Department’s motion to quash a subpoena duces tecum, unanimously reversed, on the law, without costs, and the motion granted.
Since the Police Department was not a party to the underlying criminal action, it may properly appeal from the order denying the motion to quash the subpoena duces tecum (Matter of Cunningham v Nadjari, 39 NY2d 314 ; Matter of Grand Jury Subpoena No. 2573/85, 111 AD2d 891 , lv denied 65 NY2d 606 ).
The motion court erroneously denied the Police Department’s motion to quash the subpoena duces tecum since defendant failed to put forth a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence (Matter of Constantine v Leto, 157 AD2d 376 , affd for reasons stated below 77 NY2d 975 ; People v Gissendanner, 48 NY2d 543 ). Without the factual predicate, defendant’s subpoena merely constitutes a discovery demand
Cases cited
- Cunningham v. Nadjari 39 NY2d 314 p. 426
- Constantine v. Leto 157 AD2d 376 p. 426
- Constantine v. Leto 77 NY2d 975 p. 426
- People v. Gissendanner 48 NY2d 543 p. 426