Victor G. Thompson v. Claudine T. Thompson
Attorneys and Parties
Brief Summary
Family law (child support) and civil discovery/subpoenas; appellate procedure for orders of reference
The trial court referred child support to a special referee for a de novo hearing and, in a later discovery order, largely granted plaintiff’s motion to quash/limit subpoenas to banks, CT Corporation System, and Air Source Mechanical, Inc.
The Appellate Division dismissed the appeal from the order of reference as nonappealable, and modified the discovery order by reinstating subpoenas to Bank of America, Merrill Lynch, and JP Morgan; narrowing but largely allowing discovery from Air Source post-2018; and limiting CT Corporation System’s production to the first request concerning plaintiff only.
The order of reference did not decide a motion made on notice under CPLR 5701(a)(2)(v) [appeal as of right lies only from orders deciding a motion made on notice], so it was not appealable as of right; proper procedure is to move to vacate and then appeal under CPLR 5701(a)(3) [appeal as of right from the subsequent order deciding the motion]. Plaintiff lacked standing to quash subpoenas to nonparty banks because account holders have no ownership or interest in bank records. Requests to Air Source and CT Corporation System were not 'utterly irrelevant' to child support and were consistent with prior discovery directing production of business records, though time and scope limits were appropriate.
Background
In a long-running child support dispute, the Supreme Court referred determination of plaintiff’s child support obligation to a special referee for a de novo hearing. During discovery, defendant issued subpoenas to nonparty financial institutions (Bank of America, Merrill Lynch, JP Morgan), CT Corporation System, and Air Source Mechanical, Inc., a company owned by plaintiff. Plaintiff moved to quash. The special referee largely granted the motion, significantly limiting third-party discovery.
Lower Court Decision
The Supreme Court (Waterman-Marshall, J.) issued a second amended order of reference to a special referee for a de novo hearing on child support. Later, the Special Referee (Sambuco, S.R.) granted plaintiff’s motion to: quash three bank subpoenas; quash CT Corporation System’s subpoena as overbroad; and partially quash Air Source’s subpoena by eliminating requests from 2015–2018 and several categories of financial information.
Appellate Division Reversal
Appeal from the order of reference dismissed as taken from a nonappealable order under CPLR 5701(a)(2)(v) [appeal as of right lies only from orders deciding a motion made on notice], with the proper route being a motion to vacate followed by an appeal under CPLR 5701(a)(3) [appeal as of right from the subsequent order deciding the motion]. The discovery order was modified: (1) plaintiff’s motion to quash subpoenas to Bank of America, Merrill Lynch, and JP Morgan was denied for lack of standing; (2) as to Air Source, discovery was permitted post-2018 and requests for corporate accounts, liens/judgments, ledgers/spreadsheets, and financial statements were reinstated as relevant to child support and consistent with a prior order directing production of business-related documents; and (3) as to CT Corporation System, production was limited to the first document request focused on plaintiff, while the second request remained quashed as overly broad and not material and necessary.
Legal Significance
Reaffirms that account holders generally lack standing to quash nonparty subpoenas directed to banks; clarifies that in child support cases, discovery into an obligor’s closely held business (including corporate accounts, ledgers, and financial statements) is permissible when tied to income determination and prior discovery directives; and emphasizes appellate procedure that orders of reference not deciding motions on notice are not appealable as of right, requiring a motion to vacate before appeal under CPLR 5701(a)(3).
In child support disputes, nonparty bank records and closely held business financials are discoverable where they bear on income; a party generally cannot quash subpoenas to banks for lack of standing. Appeals from orders of reference must follow the motion-to-vacate route under CPLR 5701.