Opinion
34383/07
01-12-2016
Gihon LLC, Plaintiff, v. 501 Second Street, L.L.C., DOROTHY NASH, RACHEL NASH and ESTHER NASH., Defendants.
Plaintiff: GOLDMAN & GREENBAUM, PC NY NY Defendant: Rachel Nash, Esq. (a suspended attorney)
Plaintiff: GOLDMAN & GREENBAUM, PC NY NY Defendant: Rachel Nash, Esq. (a suspended attorney) Arthur M. Schack, J.
Plaintiff GIHON LLC [GIHON], in this vitriolic and contentious real estate lease dispute, moves, in two separate motions, to quash five subpoenas, each labeled as a "Judicial Subpoena Duces Tecum," pursuant to CPLR §§ 2304 and 3103. These subpoenas were all issued by RACHEL NASH, Esq. [RN], attorney for all defendants, 501 SECOND STREET, L.L.C. [501 LLC], DOROTHY NASH, RACHEL NASH and ESTHER NASH [collectively "the NASHES"]. Further, plaintiff GIHON seeks: pursuant to CPLR Rule 3124, to compel each defendant to appear, pursuant to notices of deposition previously served upon each of them, for oral examination; pursuant to CPLR Rule 3111, each defendant to produce all papers and other things in each defendant's possession, custody or control relevant to the examination of each defendant, to be marked as exhibits, and directing each defendant to produce and permit plaintiff's counsel to inspect and copy all papers, records, and/or documents relating to the events which resulted in the forcible eviction of plaintiff GIHON by defendants, including any police reports, at dates and times to be scheduled by the Court; and, pursuant to CPLR § 3126, to prohibit defendants from introducing at trial any evidence relating to plaintiff's damages claims unless defendants appear and answer at their scheduled depositions the questions posed by plaintiff's counsel and produce the documents previously required by plaintiff's discovery notice.
All five subpoenas are mislabeled. Each subpoena is for both testimony and documents, yet somehow they are each labeled as a "Judicial Subpoena Duces Tecum." Moreover, despite my name placed by RN, counsel for defendants, on each subpoena as a Witness, I did not issue any of these five subpoenas for a court appearance, nor did I witness the issuance of these subpoenas by RN. The first time I saw the five subpoenas were in exhibits to the instant motions to quash these subpoenas. RN is admonished that in the future she is not to put my name as a Witness on any subpoena that she issues, unless she first submits it to me for my signature.
The first subpoena, dated February 5, 2015, was served upon non-party witness Nachum Davidovitch, principal member of plaintiff GIHON. Plaintiff claims that this subpoena is procedurally defective, pursuant to CPLR §§ 2303 (a), 3101 (a) (4), 8001 and CPLR Rules 3120 (2) and 3106 (b). The other four subpoenas, all dated February 26, 2015,were served upon: (1) GIHON; (2) Nachum Davidovitch, principal member of plaintiff GIHON; (3) Joe Link, principal of Jo-Safe Security Co.; and, (4) Jo-Safe Security Co. Plaintiff alleges that these four subpoenas are all procedurally defective, pursuant to CPLR §§ 308 (4), 311, 311-a, 2303 (a), 8001 and CPLR Rules 3120 (2) and 3106 (b).
Further, plaintiff GIHON moves, pursuant to 22 NYCRR § 130-1.1, to sanction RN, as counsel, and all defendants for plaintiff's costs in making the two instant motions.
All five subpoenas are defective and, for the reasons to follow, all five subpoenas are hereby quashed. Further, all defendants are compelled to appear for depositions, pursuant to CPLR Rule 3124, and to produce documents, pursuant to CPLR Rule 3111. Moreover, at trial, defendants are prohibited from introducing any evidence relating to plaintiff's damages claim unless defendants appear and answer at their scheduled depositions questions posed by plaintiff's counsel and produce the documents previously required by plaintiff's discovery notice.
Background
Plaintiff GIHON, on October 18, 2001, entered into a 48-year triple net lease with defendant 501 LLC for the use of the subject premises, consisting of residential apartments and a ground floor commercial space. The premises covered by the lease for plaintiff's exclusive use did not include certain spaces in the building which were to remain under the exclusive control of defendants 501 LLC and the NASHES. Subsequent to the signing of the lease, the parties became embroiled in a protracted dispute over monetary obligations and other performance issues.
Plaintiff GIHON commenced a breach of contract action on January 28, 2002 (Gihon, LLC v 501 Second Street, L.L.C., Kings County Supreme Court Index No. 3446/02) [the 2002 action], in which it sought, inter alia, a declaratory judgment, specific performance of the lease and incidental damages. During the course of this lawsuit, a subsequent action was commenced by plaintiff GIHON to set aside as fraudulent a previous conveyance of the property from 501 LLC to a related company (Gihon, LLC v 501 Second Street, L.L.C., Kings County Supreme Court Index No. 13933/2004) [the 2004 action].
The instant action, alleging claims for unlawful eviction and breach of a lease, is predicated upon a March 27, 2007-incident involving the changing of locks to the premises by plaintiff's locksmith and the confiscation of the keys to the new locks by defendants the NASHES, with the assistance of the police. The 2004 action resulted in a judgment of $120,000 plus interest against defendants, entered on September 14, 2012, the amount of plaintiff's security deposit withheld by defendant 501 LLC. A satisfaction of this judgment was entered on February 13, 2014.
It should be noted that RN, in her two opposing affirmations in opposition, requested sanctions against plaintiff GIHON, LLC and its counsel. This is improper because the appropriate method to request this relief would be by a cross-motion or a separate motion. This is not done by an opposing affirmation.
Discussion
There are many reasons for finding that all five of the subject subpoenas issued by RN are defective. First, CPLR § 2303 (a) requires that "a subpoena duces tecum shall be served in the same manner as a summons." This invokes CPLR § 308, which requires personal service. Pursuant to CPLR § 308 (2), if personal service cannot be made, service can be made by serving "a person or suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served" or, pursuant to CPLR § 308 (4), if service cannot be made with due diligence, by "nail and mail," affixing the summons to the door of the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing to the person to be served the summons by first class mail to either the person's last known residence or actual place of business. The envelope must bear "the legend personal and confidential'" and not indicate "by return address or otherwise that the communication is from an attorney."RN, in violation of CPLR § 308, served the February 5, 2015-subpoena upon non-party witness Nachum Davidovitch, principal member of plaintiff GIHON, by certified mail.
Further, the certified mail envelope does not bear "the legend personal and confidential'" and also has RN's name and address in the place for the return address.Further, a party seeking disclosure from a non-party witness must state the circumstances or reasons such disclosure is sought or required. (CPLR § 3101 (a) (4); Morganti v Morganti, 72 AD3d 662, 663 [2d Dept 2010]). The Court of Appeals in Kapon v Koch (23 NY3d 32 [2014]), instructed at 39:
[CPLR] section 3101 (a) (4)'s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, "the circumstances or reasons such disclosure is sought or required." The subpoenaing party must include that information in the notice in the first instance (see Sponsors Mem, Bill Jacket, L 1984, ch 294), lest it be subject to a challenge for facial insuffciency.The February 5, 2015-subpoena sent to Mr. Davidovitch is facially defective for failing to state anywhere on the subpoena the circumstances or reasons for defendants seeking discovery from Mr. Davidovitch.
Also, CPLR § 2303 (a) requires that "[a]ny person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee," which is set forth in CPLR § 8001. RN, in violation of both CPLR §§ 2303 (a) and 8001, failed to include with the subpoena the statutorily required witness' fees due to Mr. Davidovitch.In light of the these violations in the service of the February 5, 2015-subpoena sent to Mr. Davidovitch: the use of certified mail; the failure to state anywhere on the subpoena the circumstances or reasons for defendants seeking discovery from Mr. Davidovitch; and, the failure to include the statutorily required witness fees due to Mr. Davidovitch; RN has demonstrated her wanton and reckless disregard for adhering to the CPLR. Therefore, the Court doesn't have to discuss other defects in the service of the February 5, 2015-subpoena.
With respect to the four subpoenas issued by RN on February 26, 2015 to: plaintiff GIHON; Nachum Davidovitch, as principal member of plaintiff GIHON; Joe Link, principal of Jo-Safe Security Co.; and, Jo-Safe Security Co., there are numerous procedural defects which require that these four subpoenas be quashed. The Court does not have to address the issue of whether the return dates of the subpoenas are
correct, because of other obvious defects. The subpoenas served upon GIHON and Mr. Davidovitch, in violation of CPLR § 308, were mailed to them by certified mail, return receipt requested, not by first class mail. Further, the return address on the certified mail envelope to GIHON clearly indicated that the mailing was from "Rachel H. Nash, Esquire" and the return address on the certified mail envelope to Mr. Davidovitch also included the words, "Attorneys for Defendants." Therefore, RN violated CPLR § 308 with these disclosures.
The subpoena served upon GIHON is also defective because CPLR § 308 is only available for service upon "a natural person." Plaintiff GIHON is a limited liability company. Personal service upon an LLC is made pursuant to CPLR § 311-a, which requires a copy of the subpoena to be personally delivered to any member of the LLC or to any agent or person personally authorized to receive process. This was not done.
The subpoenas upon Mr. Link and Jo-Safe Security Co. were attempted to be served upon an employee of Mr. Link at Mr. Link's store location. The employee, who was not authorized to accept such service, refused service, but the process server just placed the subpoenas on the counter in front of the employee and left. When serving a corporation, pursuant to CPLR § 311 (a) (1), the subpoena must be personally delivered "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." The employee at Mr. Link's store did not fit any of these criteria.
In addition, RN again, in violation of both CPLR §§ 2303 (a) and 8001, failed to include with any of the February 26, 2015 subpoenas the statutorily required witness fees due to each of the witnesses.
With respect to depositions, discovery in this action has been delayed for years. Plaintiff GIHON shall be permitted to complete its discovery of defendants. The Court grants the branches of the instant motions requiring each of the defendants to appear at the office of plaintiff's counsel on dates and times to be scheduled by the Court for their examinations before trial. Defendants must also comply with CPLR Rule 3111 and plaintiff's prior Notice for Discovery and Inspection.
The Court will not sanction RN, as counsel, or the defendants for plaintiff's costs in making the two instant motions. Conclusion
Accordingly, it is
ORDERED, that plaintiff GIHON LLC's motions to quash five subpoenas, the first subpoena issued on February 5, 2015 to Nachum Davidovitch, principal member of plaintiff GIHON LLC and the other four subpoenas, issued on February 26, 2015, to (1) plaintiff GIHON LLC, (2) Nachum Davidovitch, principal member of plaintiff GIHON, (3) Joe Link, principal of Jo-Safe Security Co. and (4) Jo-Safe Security Co., is granted; and it is further
ORDERED, that pursuant to CPLR § 3124, each of the defendants shall appear for a deposition on or before March 15, 2016, at the office of plaintiff's counsel, Goldman & Greenbaum, P.C., 60 East 42nd Street, Room 4700, New York, NY 10165; and it is further
ORDERED, that pursuant to CPLR Rule 3111, each defendant is to produce all papers and other things in each defendant's possession, custody or control relevant to the deposition of each defendant to be marked as exhibits and each defendant is directed to produce and permit plaintiff's counsel to inspect and copy all papers, records, and/or documents relating to the events which resulted in the forcible eviction of plaintiff GIHON LLC by defendants, including any police reports, at dates and times to be scheduled by the Court; and it is further
ORDERED, that pursuant to CPLR § 3126, all defendants are prohibited from introducing at trial any evidence relating to plaintiff GIHON LLC's damages claims unless each defendant appears and answers at their scheduled depositions the questions posed by plaintiff's counsel and produce the documents previous required by plaintiff's discovery notice.
This constitutes the Decision and Order of the Court.
ENTER ___________________________ HON. ARTHUR M. SCHACK J.S.C.