Opinion
Index No. 609663/2017
09-17-2019
GIULIANO MCDONNEL & PERRONE, LLP, Plaintiff-Judgment Creditor, v. MERCHANT CASH and CAPITAL, LLC, Defendant-Judgment Debtor
NYSCEF DOC. NO. 222 Present: Mot Seq. No. 013 Decision and Order Papers submitted on this motion:
| Non-Parties Order to Show Cause(Otterbourg P.C. and Richard G. Haddad) | X |
| Plaintiff's Affirmaton in Opposition | X |
| Defendant's Memorandum of Law in Opposition | X |
| Non-Party's Reply Affirmation | X |
Background
The underlying action herein is one for non-payment of legal fees and expenses by Defendant to Plaintiff pursuant to a prior attorney-client relationship. On September 18, 2017, Plaintiff commenced this action against Defendant by filing a Summons and Verified Complaint. Otterbourg and Mr. Haddad appeared as attorneys for Defendant in this action on October 16, 2017, which representation continued until June 12, 2018, at which time an application to withdraw as counsel was granted. The Court presided over a bench trial of this matter on February 25, 2019. At trial, Defendant was represented by Allan Mendelsohn, Esq. Defendant called no witnesses and presented no documentary evidence at trial. On March 21, 2019, Plaintiff filed and served a proposed Order to Show Cause to amend Plaintiff's complaint to conform to the evidence and allege that this dispute is not otherwise covered by Rules of the Chief Administrator of the Courts (22 NYCRR §137). On March 22, 2019, the Court issued an Order granting judgment in Plaintiff's favor in the amount of $1,129,497.61 plus interest from September 11, 2017. On or about April 2, 2019, the Court declined to sign Plaintiff's Order to Show Cause. On April 24, 2019, Defendant filed a Notice of Appeal of the Court's March 22, 2019 Order and Judgment, as well as a stay. Defendant's request for a stay was denied. Defendant has not satisfied the judgment to date. Defendant opposed Plaintiff's motion to amend. The action taken by Defendant to appeal the Court's March 22, 2019 Order and Judgment followed the Court's declination to sign Plaintiff's Order to Show Cause. Defendant is well within his rights to pursue an appeal. The Plaintiff, however, having prevailed in this Court warrants the full opportunity to satisfy the judgment. The Court thereafter found in favor of Plaintiff's application for permission to amend and permitted it, pursuant to CPLR §3025(c) by Decision and Order, dated September 16, 2019 (Gianelli, J.). In furtherance of Plaintiff's effort to satisfy the judgment, Plaintiff served information subpoenas on Otterbourg P.C. and Richard G. Haddad (See Plaintiff's Affirmation in Opposition, "Exhibit A"). Upon review, the Court finds that the information sought by the subpoenas in question is not overly broad, is relevant and material, and is otherwise proper under CPLR §§ 5223 and 5224. Additionally, the Non-Parties herein have failed to persuade the Court that a change in venue to New York County is warranted. Upon consideration of all submitted papers and a totality of facts and circumstances herein, It is ORDERED, that Non-Parties Otterbourg P.C. and Richard G. Haddad's motion for an Order of the Court quashing the Subpoenas at issue herein and/or for a protective Order with respect to same Subpoenas served on Otterbourg P.C. and Richard G. Haddad, dated June 6, 2019 is Denied; and it is ORDERED, that Non-Parties Otterbourg P.C. and Richard G. Haddad's motion for an Order of the Court transferring the venue of this motion to New York County is Denied. Any application not specifically ruled upon herein is denied. This constitutes the Decision and Order of the Court. DATED: Mineola, New York
September 17, 2019
/s/_________
Sharon M.J. Gianelli
Justice of the Supreme Court