Opinion
Index No. 656734/2016
04-01-2020
Shirley TARKAN, Plaintiff, v. Ronald SAFDIEH, RN Joseph Fine Arts Ltd, RNJA Company, LLC, RN Joseph Fine Art, John Doe, Defendants.
Citak & Citak, New York, NY (Donald L. Citak of counsel), for plaintiff. Frank J. Livoti, P.C., Mineola, NY (Frank J. Livoti of counsel), for defendants.
Citak & Citak, New York, NY (Donald L. Citak of counsel), for plaintiff.
Frank J. Livoti, P.C., Mineola, NY (Frank J. Livoti of counsel), for defendants.
Gerald Lebovits, J.
Plaintiff in the present action alleges that defendants fraudulently induced her and her late husband to spend considerable sums to buy supposed antique Russian jewelry and other objets d'art that proved later to be merely modern reproductions. The parties have been engaged in disputes for nearly a year over discovery requests served by plaintiff; and some (but not all) of those disputes were resolved by prior discovery orders issued by the court. (See NYSCEF Nos. 80, 86.) This order addresses the parties' disputes as they have continued (and developed) since this court's prior discovery orders, as presented now by plaintiff's motion to compel.
This order does not address any issues related to plaintiff's second set of interrogatories (see NYSCEF No. 97), which plaintiff served on December 3, 2019. (See Order, NYSCEF No. 80, at 2 [permitting plaintiff to serve certain supplemental interrogatories] ).
DISCUSSION
As a general matter, under this court's prior orders, defendants were required to submit verified supplemental discovery responses; and, to the extent that defendants have no documents in their possession responsive to particular document requests, to provide an affidavit stating so expressly. Defendants acknowledge that their supplemental responses were not verified and that they have not provided the required affidavits. (See NYSCEF No. 98 at 3-4.) Defendants shall, within 45 days of service of a copy of this order with notice of entry, produce verified versions of their supplemental discovery responses provided in response to this court's prior orders (and shall verify all supplemental discovery responses provided in response to this order). Defendants' (verified) document responses must be bates-stamped. To the extent that interrogatory responses refer to documents produced by defendants, they must specify particular pages or page ranges, rather than referring generally to a category of documents. Additionally, defendants shall, within that 45-day period, also produce the affidavit attesting to the absence of responsive documents as required by this court's discovery order of August 19, 2019.
As to particular disputed discovery requests, this court's request-by-request determinations are as follows.
Interrogatory Nos. 9 and 11: These interrogatories seek the tax ID numbers of defendants RN Joseph Fine Arts Ltd. and RNJA Company, LLC, along with information about other states in which defendants have conducted business (and other names under which they have conducted business), and litigation that the defendants have been involved in. The interrogatories also seek information about the members (and managing members) of these business entities. Plaintiff argues that this information is necessary to aid plaintiff in finding more information relating to the business affairs of these entities and other potential witnesses to (alleged) wrongdoing by the entities.
This court concludes that the bulk of each of these interrogatories ventures too far afield. Plaintiff does not assert that the information sought in Nos. 9(A)-(E) and 11(A)-(E) is itself relevant to her remaining claim in this action, but rather that with that information in hand, she might be able to locate other information that might be relevant. That possibility is too attenuated and speculative to entitle plaintiff to obtain the information requested in those interrogatory subparts.
The court reaches a different conclusion as to Nos. 9(F) and (G) and 11(G). Those subparts seek the identity of individuals who might have direct personal knowledge of the transactions at issue in this action and therefore be called to serve as witnesses. Defendants must therefore supplement their interrogatory responses to provide also the identities of the individuals referred to in 9(F), 9(G), and 11(G) within 45 days of notice of entry. If defendants do not have information in their possession regarding the identities of those individuals, defendants shall so state expressly in an affidavit—and shall also explain how they came to lose or relinquish possession of that information.
Defendants' initial interrogatory responses indicated that defendant Safdieh was the managing member of defendant RNJA Company LLC. (See NYSCEF No. 85, at 7.) If that statement is accurate, it is responsive to Interrogatory No. 11(F), and defendants need not further supplement their response to that interrogatory subpart. If defendants' statement that Safdieh was the managing member of RNJA Company LLC was not accurate, defendants must respond to No. 11(F), as well.
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Interrogatory No. 13: This court's discovery order of August 19, 2019, directed defendants to respond to No. 13(E), which sought information about whether some of the jewelry at issue in this action was originally received by defendant Safdieh on consignment. (See NYSCEF No. 80, at 2.) Defendants did not do so. (See NYSCEF No. 94, at 1-2.) Defendants now assert—for the first time—that their initial interrogatory responses included a response to No. 13(E), which was simply mislabeled with a lower-case (e). (See NYSCEF No. 98 at 2-3.) The court notes that this assertion is in some tension with the substance and organization of defendants' initial response to Interrogatory No. 13. (See NYSCEF No. 85 at 10-11.) Regardless, this court does not believe that it is sufficient for defendants merely to state, without elaboration, that it is "unknown" whether any of the jewelry at issue was originally received on consignment. Defendants must, within 45 days of notice of entry, explain in an affidavit (i) whether defendants originally possessed and maintained records as to the ownership and control of the jewelry referred to in Interrogatory No. 13 (including whether they were selling that jewelry on consignment from third parties); (ii) if not, why not; and (iii) if so, how defendants came to lose or relinquish possession of those records.
Interrogatory No. 15: Interrogatory No. 15(E) seeks the same information as No. 13(E), with respect to jewelry offered for sale in November 2004. Defendants' affidavit must also include the same information in response to No. 15(E) as described above with respect to No. 13(E).
Interrogatory No. 19: Interrogatory No. 19(D)(i) seeks information about whether jewelry offered for sale by defendants in May 2005 was insured. This court previously directed defendants to supply additional information about the insurance policy covering that jewelry, to the extent available. Defendants now suggest that no such additional information was available. Defendants shall, within 45 days of notice of entry, attest expressly to the lack of any additional information, and explain how they came to lose or relinquish information about that insurance policy.
Interrogatory No. 19(E) seeks the same consignment-related information as to this jewelry as sought in Nos. 13(E) and 15(E). Defendants' affidavit also must include the same information as with Nos. 13(E) and 15(E) described above.
Interrogatory No. 23: This court agrees with defendants that this interrogatory is overly broad and burdensome and that plaintiff has not sufficiently articulated why and how it will lead to the discovery of relevant information. Defendants need not supplement their response to this interrogatory.
Interrogatory Nos. 25 and 27: Defendants shall within 45 days of service of notice of entry, provide an affidavit stating (i) who last had possession of the books and records at issue; (ii) when and how that individual or entity came to lose or relinquish possession of the books and records; and (iii) whether the books and records were destroyed, and if so, when.
Interrogatory No. 28: This court concludes that defendants' explanation that RN Joseph Fine Arts is merely a trade name for RN Joseph Fine Arts Ltd., rather than an actual business entity, sufficiently responds to this interrogatory.
Accordingly, for the foregoing reasons, it is
ORDERED that plaintiff's motion to compel is granted in part to the extent set forth above, and is otherwise denied.