Opinion
Nos. 2022-08741 2022-09085 Index No. 520492/21
02-21-2024
Isaac Hersko, etc., respondent, v. Barry Hersko, etc., et al., appellants, et al., defendant.
Blank Rome LLP, New York, NY (Craig M. Flanders, Harris N. Cogan, and David M. Jacobson of counsel), for appellants. Abrams Fensterman, LLP, White Plains, NY (Anthony J. Genovesi, Lisa Colosi Florio, and Aaron Zucker of counsel), for respondent.
Blank Rome LLP, New York, NY (Craig M. Flanders, Harris N. Cogan, and David M. Jacobson of counsel), for appellants.
Abrams Fensterman, LLP, White Plains, NY (Anthony J. Genovesi, Lisa Colosi Florio, and Aaron Zucker of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action, inter alia, for declaratory relief and to impose a constructive trust upon certain real property, the defendants Barry Hersko, Wilson-Hins Associates, Inc., Clark Wilson, Inc., Wilson Properties & Equities, Inc., Wilson Flat, Inc., Wilson Han Associates, Inc., Wilson-Mer Associates, Inc., B. Clark Associates, Inc., and 516 Kingston, LLC, appeal from two orders of the Supreme Court, Kings County (Karen B. Rothenberg, J.), both dated October 7, 2022. The first order, insofar as appealed from, in effect, denied those branches of those defendants' motion, made jointly with the defendant Bella Hersko, which were for a protective order and to quash certain subpoenas served by the plaintiff insofar as they sought the federal and state tax returns of the defendants Wilson-Hins Associates, Inc., Clark Wilson, Inc., Wilson Properties & Equities, Inc., Wilson Flat, Inc., Wilson Han Associates, Inc., Wilson-Mer Associates, Inc., B. Clark Associates, Inc., and 516 Kingston, LLC, for the years 2016 through 2021. The second order, insofar as appealed from, denied that branch of those defendants' motion which was denominated as one pursuant to CPLR 5015(a) to vacate so much of an order of the same court dated April 21, 2022, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants Wilson-Hins Associates, Inc., Clark Wilson, Inc., Wilson Properties & Equities, Inc., Wilson Flat, Inc., Wilson Han Associates, Inc., Wilson-Mer Associates, Inc., B. Clark Associates, Inc., and 516 Kingston, LLC, and that branch of the plaintiff's separate motion which was for leave to enter a default judgment against the defendant Barry Hersko, but was treated as one for leave to renew those defendants' opposition to those branches of the plaintiff's separate motions which were for leave to enter a default judgment against each of them.
ORDERED that the orders dated October 7, 2022, are affirmed insofar as appealed from, with one bill of costs.
The facts underlying this appeal are summarized in the related appeals decided herewith (Hersko v Hersko, _____ A.D.3d _____ [Appellate Division Docket Nos. 2022-02436, 2022-04090]). As relevant here, in April 2022, the plaintiff served subpoenas on various nonparties, seeking, inter alia, the federal and state tax returns of the defendants Wilson-Hins Associates, Inc., Clark Wilson, Inc., Wilson Properties & Equities, Inc., Wilson Flat, Inc., Wilson Han Associates, Inc., Wilson-Mer Associates, Inc., B. Clark Associates, Inc., and 516 Kingston, LLC (hereinafter collectively the corporate defendants), and supporting documentation related to certain real properties. The defendants Barry and Bella Hersko and the corporate defendants (hereinafter collectively the defendants) moved for a protective order and to quash the subpoenas. In an order dated October 7, 2022, the Supreme Court, among other things, in effect, denied those branches of the defendants' motion which were for a protective order and to quash the subpoenas insofar as they sought the corporate defendants' federal and state tax returns for the years 2016 through 2021. In May 2022, the defendant Barry Hersko and the corporate defendants (hereinafter collectively the Hersko defendants) moved, inter alia, pursuant to CPLR 5015(a) to vacate so much of an order dated April 21, 2022, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the corporate defendants and that branch of the plaintiff's separate motion which was for leave to enter a default judgment against the defendant Barry Hersko. In a separate order dated October 7, 2022, the court, among other things, denied that branch of the Hersko defendants' motion which was denominated as one pursuant to CPLR 5015(a) to vacate so much of the April 21, 2022 order as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the corporate defendants and that branch of the plaintiff's separate motion which was for leave to enter a default judgment against the defendant Barry Hersko, but was treated as one for leave to renew the Hersko defendants' opposition to those branches of the plaintiff's separate motions which were for leave to enter a default judgment against each of them.
"Generally, the standard to be applied on a motion to quash a subpoena duces tecum is whether the requested information is utterly irrelevant to any proper inquiry" (Matter of County of Suffolk v Kennedy, 211 A.D.3d 937, 939 [internal quotation marks omitted]). "A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure 'is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'" (Matter of Maragos v Town of Hempstead Indus. Dev. Agency, 174 A.D.3d 611, 614-615, quoting Matter of Kapon v Koch, 23 N.Y.3d 32, 34). "Due to the confidential and private nature of tax returns, [t]ax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources" (Nill v Gaco W., LLC, 203 A.D.3d 1173, 1174-1175 [citation and internal quotation marks omitted]).
Here, the Supreme Court providently exercised its discretion in, in effect, denying those branches of the defendants' motion which were for a protective order and to quash certain subpoenas served by the plaintiff insofar as they sought the corporate defendants' federal and state tax returns for the years 2016 through 2021, as these records were relevant and indispensable to the plaintiff's prosecution of his claims (see Levine v City Med. Assoc., P.C., 108 A.D.3d 746, 747; see also Singh v Singh, 51 A.D.3d 770, 771).
Contrary to the Hersko defendants' contention, the Supreme Court properly treated that branch of their motion which was pursuant to CPLR 5015(a) as one for leave to renew their opposition to those branches of the plaintiff's separate motions which were for leave to enter a default judgment against each of them. Since the Hersko defendants opposed those branches of the plaintiff's separate motions which were for leave to enter a default judgment against each of them on the merits, the order granting those branches of the motions was appealable and the Hersko defendants' motion pursuant to CPLR 5015(a)(1) to vacate that portion of that order was procedurally improper (see Hinds v 33rd St. Astoria, Inc., 197 A.D.3d 697; Cole-Hatchard v Eggers, 132 A.D.3d 718, 719; see also Hon. Mark C. Dillon, 2023 Supp Prac Commentaries, McKinney's Cons Laws of NY, CPLR C5015:6). Moreover, upon treating that branch of the Hersko defendants' motion as one for leave to renew their opposition to those branches of the plaintiff's separate motions which were for leave to enter a default judgment against each of them, the court properly denied that branch of the motion. The defendants did not offer a reasonable justification for failing to present the alleged new facts on the prior motion and, moreover, did not demonstrate that the proffered new facts would have changed the prior determination (see Nunez v Yonkers Racing Corp., 218 A.D.3d 480, 482; Dash Windows of L.I., Inc. v Bivona, 216 A.D.3d 917, 917; Seegopaul v MTA Bus Co., 210 A.D.3d 715, 716).
The parties' remaining contentions need not be reached in light of our determination.
DILLON, J.P., MILLER, WARHIT and VENTURA, JJ., concur.