Opinion
Index No. 654984/2018 Motion Seq. No. 003 004
05-06-2022
ALQ, LLC, Plaintiff, v. PETER KANE, Defendant.
Unpublished Opinion
MOTION DATE 03/31/2022, 09/24/2021.
DECISION + ORDER ON MOTION
ANDREW BORROK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS
The following e-filed documents, listed by NYSCEF document number (Motion 004) 140, 141, 142, 143, 144, 145, 147, 148 were read on this motion to/for DISCOVERY
Upon the foregoing documents and for the reasons set forth on the record (5.6.2022), the Defendant's motions to (i) quash subpoenas served on himself and Lisa Forero (Mtn. Seq. No. 003) and (ii) compel production to his document demand numbered 13 and interrogatories numbered 15, 20 and 21 (Mtn. Seq. No. 004) are both granted. The Plaintiffs cross-motion to enforce the subpoenas served on Defendant and Lisa Forero is denied.
Reference is made to (i) a Decision and Order dated March 3, 2020, the Court granted Plaintiff summary judgment in its entirety (NYSCEF Doc. No. 103; the March 2020 Order), (ii) a Judgment entered by the Clerk on March 18, 2020 (NYSCEF Doc. No. 106; the Judgment) and (iii) a Decision and Order (NYSCEF Doc. No. 134; the Appellate Division Order), dated September 28, 2021, issued by the Appellate Division pursuant to which the Appellate Division modified the March 2020 Order finding that the defendant had raised issues of fact as
to whether the liquidated damages claimed by the plaintiff, representing accelerated rent over the remainder of the lease were grossly disproportionate to its actual damages (see generally 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 N.Y.3d 528, 535 [2014]) and as to whether certain items were improperly calculated.(ALQ, LLC v Kane, 197 A.D.3d 1029 [1st Dept 2021]). Pursuant to the Appellate Division Order, the Appellate Division remanded:
for a hearing to determine the portion, if any, of plaintiff s claimed post-eviction damages constitutes a penalty over and above the actual amounts to which the plaintiff is entitled under the lease (see id. at 537), as well whether, as defendant contends, plaintiff is not entitled to the damages it claims because it elected to proceed under paragraph 26.02 of the lease, rather than paragraph 26.01, thereby waiving its remedy under the latter.(id. at 1029-1030). These are the sole issues remaining for consideration by this Court. Initially, following the Appellate Division Order, the Judgment must be vacated.
Following the Appellate Division Order, the plaintiff served subpoenas on the defendant and his wife Lisa Forero seeking information about their ability to satisfy a judgment. They are improper at this stage and must be quashed because the Judgment was vacated. Thus, the defendant's motion (Mtn Seq. No. 003) must be granted and the plaintiffs cross-motion denied.
Additionally, the defendant served document demands and interrogatories following the Appellate Division Order which the plaintiff did not fully answer. Document demand 13 seeks copies of retainer agreements between the plaintiff and plaintiffs counsel, invoices issued to plaintiff for attorneys' fees and payments made by plaintiff for attorneys' fees. Interrogatories 20 and 21 similarly sought identification of documents and communications relating to the existing fee arrangement between the plaintiff and plaintiffs counsel. The documents provided by plaintiff were not sufficient for Defendant to calculate reasonable attorneys' fees. The billable hourly rates for each attorney must be provided together with the number of hours worked and any disbursements (see NYSCEF Doc. No. 148). Interrogatory 15 seeks disclosure of the specific dollar amounts attributable to each item of damages to which the plaintiff believes it is entitled. Plaintiff contends that it has provided all necessary documents for the defendant to estimate its claim for damages, but did not provide a copy of its responses to the defendant as part of the record. The plaintiff should respond to interrogatory 15 with all necessary documents for the defendants to calculate the plaintiffs claim for damages because the burden here is very low and provides important information to the defendant in assessing this part of the plaintiffs damages.
Based upon the foregoing, it is
ORDERED that defendant's motion to quash the subpoenas served on himself and Ms. Forero (Mtn. Seq. No. 003) is granted and plaintiffs cross-motion to enforce the subpoenas is denied; and it is further
ORDERED that Defendant's motion to compel discovery (Mtn. Seq. No. 004) is granted as set forth above; and it is further
ORDERED that Plaintiff is directed to produce the responses as set forth above by no later than May 20, 2022; and it is further
ORDERED that the parties appear for a status conference on June 1, 2022 at 9:30 a.m., with parties to provide their expert deposition schedule (names and dates), if any, as well as their availability for possible hearing dates.