On April 17, 2023, Justice Crane of the New York County Commercial Division issued a decision in Lantern Endowment Partners, LP v. Bluefin Servicing Ltd., 2023 NY Slip Op. 31240(U), holding that the failure timely to the form of an information subpoena waived any objections to the subpoena, explaining:
CPLR 5223 authorizes post-judgment disclosure in these situations, and CPLR 5224(a)(3) sets forth the requirements for the subpoenas that were referenced in CPLR 5223. Peck opposes the cross motion, arguing that the Information Subpoena was defective because it failed to include two (2) copies and a self-addressed stamped envelope.
CPLR 5224(a)(3) states that service of an information subpoena, accompanied by a copy and original of written questions and a prepaid addressed return envelope, may be made by registered or certified mail, return receipt requested. It further provides that the answers together with the original of the questions must be returned within seven days after receipt.
Here, the parties do not dispute that Peck actually received the Notice and Subpoena. The Affidavit of Service for the Restraining Notice on Debtor and Information Subpoena served on Peck states that on August 29, 2022, the process server mailed via Certified Mail, Return Receipt Requested a true copy of the RESTRAINING NOTICE ON THE DEBTOR, INFORMATION
SUBPOENA and QUESTION AND ANSWERS to defendant Peck by way of his counsel.However, the Affidavit of Service does not state or otherwise provide two copies and a self-addressed stamped envelope, indicating non-compliance with CPLR 5224(a)(3)’s requirements accompanied the information subpoena. Lantern does not assert that it sent two copies of the information subpoena with a prepaid, self-addressed return envelope. Instead, it argues that defendant Peck waived any objections by failing to timely move to quash the subpoena.
The Notice and Information Subpoena were served on August 29, 2022. Lantern sent its follow up letter to Peck, that requested his compliance with the subpoena, on September 13, 2022. Given the seven (7) day period to raise objections to these types of subpoenas, Peck had to raise any objection or disputes concerning the notice and subpoena by September 5, 2022 (seven days after August 29, 2022). Even if Peck received the Notice and Information Subpoena on September 13, 2022, the date of Lantern’s follow up letter, Peck was required to lodge or otherwise memorialize his objection no later than September 20, 2022 (seven days after September 13, 2022).
The record on this cross motion demonstrates that Peck did not properly memorialize or raise any objection to the Notice and Subpoena during the roughly six-month period following Lantern’s September 13, 2022 letter. In fact, Peck’s counsel’s affirmation states that “Mr. Peck duly disregarded the purported information subpoena” because the associated Affidavit of Service Lantern submitted in support of this motion indicated that CPLR 5224(a)(3)’s requirements were not met. Peck first raised his objection to the information subpoena in opposition to this motion, long after his time to object to the information subpoena expired under CPLR 5224[a][3]).
Peck’s failure to object to the Information Subpoena or move to quash the Information Subpoena within the time permitted under CPLR 5224(a)(3) amounts to waiver.
(Internal quotations and citations omitted).