Opinion
19689/2019
09-23-2021
Dawn LASALLE, et al., Petitioners, v. 1777 GC LLC, et al., Respondents, and New York City Department of Housing Preservation and Development (DHPD) & New York City Department of Buildings (DOB), Co-Respondents.
Bronx Legal Services, Eugene Y. Chen, of Counsel, Attorneys for Petitioners, (echen@lsnyc.org) Becker & Poliakoff, Glenn Spiegel, Esq., Attorneys for Respondents, (gspiegel@bplegal.com) NYC Department of Housing Preservation and Development, Petitioner, Emily Veale, of Counsel, (VealeE@hpd.nyc.gov)
Bronx Legal Services, Eugene Y. Chen, of Counsel, Attorneys for Petitioners, (echen@lsnyc.org)
Becker & Poliakoff, Glenn Spiegel, Esq., Attorneys for Respondents, (gspiegel@bplegal.com)
NYC Department of Housing Preservation and Development, Petitioner, Emily Veale, of Counsel, (VealeE@hpd.nyc.gov)
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion with Affirmation 1
Affirmation in Opposition 2
Reply Affirmation 3
After oral argument held on September 13, 2021, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
Petitioners are occupants at 1777 Grand Concourse, Bronx, NY. Their petition seeks, inter alia , an order to correct outstanding violations and a finding they have been harassed, as defined in the Housing Maintenance Code ("HMC").
On November 4, 2020, the court issued an order to correct the outstanding violations. Then, on November 17, 2020, the matter was set for a May 2021 trial on petitioners’ remaining claims, including harassment. Subpoenas, if any, were due by December 31, 2020.
On or about December 31, 2020, petitioners submitted a subpoena seeking documents from the FDNY. The FDNY complied with the subpoena. Trial did not commence as planned.
On or about August 23, 2021, petitioners submitted a second FDNY subpoena, presumably to obtain records generated after December 31, 2020.
Respondents now move to quash the second subpoena, under CPLR § 2304 and 3103(a), arguing that the subpoena is overbroad and late and, in any event, "petitioners are already in possession of the knowledge regarding" specific incidents.
Petitioners oppose the motion arguing the subpoena should not be quashed unless the moving party demonstrates that it seeks utterly irrelevant material. Petitioners offer that the FDNY records sought are reasonably related to their claims of elevator problems in the building and that the subpoena is sufficiently specific to elicit relevant records. Petitioners also deny any improper delay noting that the second subpoena was needed because eight months had elapsed since the first subpoena.
DISCUSSION
CPLR § 3103[a] permits a court to issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device" where necessary "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." ( Liberty Petroleum Realty, LLC v Gulf Oil, L.P. , 164 AD3d 401, 403, 84 NYS3d 82 [1st Dept 2018] ).
As to subpoenas, the person seeking to quash bears "the burden of establishing that the requested documents and records are utterly irrelevant " ( Ledonee v Orsid Realty Corp. , 83 AD3d 598, 599, 921 NYS2d 249 [1st Dept 2011] [emphasis added]; Board of Managers of Fishkill Woods Condominium v Gottlieb , 184 AD3d 792, 794, 126 NYS3d 698 [2nd Dept 2020] )
The subpoena will only be quashed where it is obvious that the process will not reveal anything legitimate "or where the information sought is utterly irrelevant to any proper inquiry." ( Board of Education of City School District of City of New York v New York State Department of Education , 122 NYS3d 694, 696, 182 AD3d 664 [3rd Dept 2020], citing Matter of Kapon v Koch , 23 NY3d 32, 988 NYS2d 559 [2014] ).
There is no serious argument that the FDNY records sought are "utterly irrelevant" to the controversy here. Even if petitioners might be able to testify to events described in requested records, the records may corroborate such testimony. (see Application of R.J. Reynolds Tobacco Co. , 136 Misc 2d 282, 284, 518 NYS2d 729 [Sup Ct, New York County 1987] (Material subpoenaed may be used for corroborative purposes); Gottlieb v Gottlieb , 137 AD3d 614, 627, 28 NYS3d 37 [1st Dept 2016] (subpoenaed documents helped to corroborate the wife's theory of the case)). As such, the motion must be denied. (see Kapon v Koch, supra [so long as disclosure sought from a nonparty is relevant to the prosecution or defense of an action, it must be produced.])
In any event, respondents’ position that the subpoena is overbroad is without merit. The cases relied upon by respondents involve requested materials "beyond the scope of respondent's investigation" and thus "clearly irrelevant to the matter at hand," (see Matter of D'Alimonte v Kuriansky , 144 AD2d 737, 739, 535 NYS2d 151 [3rd Dept 1988] ), or a request, if taken literally, of 5.5 million pages of documents, (see Brodsky v New York Yankees , 26 Misc 3d 874, 889, 891 NYS2d 560 [Sup Ct, Albany 2009]), and a request for "clearly irrelevant" documents which "may well be privileged." (see Grotallio v Soft Drink Leasing Corp. , 97 AD2d 383, 468 NYS2d 4 [1st Dept 1983] ).
Respondent's reliance on Lisa I v Manikas is similarly misplaced, where subpoenas were not served for ten months, and only served after note of issue was served. ( 188 AD3d 1369, 1370, 135 NYS3d 192 [3d Dept 2020] ). Here, respondents claim prejudice because of "delay." However, the mere passage of time is not automatically prejudicial. (see Cillo v Resjefal Corp. , 13 AD3d 292, 293, 787 NYS2d 269 [1st Dept 2004] ). Furthermore, petitioners did not delay in issuing the second subpoena. Time simply passed and more records, presumably, became available.
CONCLUSION
Based on the foregoing, respondents’ motion to quash the second FDNY subpoena is denied in all respects. The court will contact the parties to arrange convenient trial dates. A copy of this decision will be provided to both sides by email.
SO ORDERED.