Opinion
INDEX NO. 601610/2013
06-16-2015
MARK METZ and JANE METZ, Plaintiff(s), v. JOSEF OMLAND, KEVIN OMLAND, JOHN ERICKSON, OMLAND ERICKSON, LLC, MIDNIGHT SUN DESIGN CORP., JOHN DOE #1 through JOHN DOE #10, being fictitious persons or entities, it being intended to name all other parties who may have some interest in this action. Defendant(s).
NYSCEF DOC. NO. 44
Short Form Order
PRESENT: Honorable Karen V. Murphy Justice of the Supreme Court Motion Submitted: 4/22/15
Motion Sequence: 002, 003 The following papers read on this motion:
Notice of Motion/Order to Show Cause........................XX
Answering Papers..........................................................X
Reply..............................................................................
Briefs: Plaintiff's/Petitioner's........................................
Defendant's/Respondent's..................................
Motion pursuant to CPLR § 2304 by defendants Joseph Omland et al. (collectively Omland) to quash the subpoena duces tecum served on the Bank of America on or about February 27, 2015 is granted and the subpoena is hereby vacated.
Cross motion pursuant to CPLR § 3124 by plaintiffs to compel defendant Omland to comply with various discovery requests, and, inter alia, to pay plaintiffs' reasonable attorneys' fees and costs incurred in connection with the instant motion, etc. is denied as hereinafter provided.
The instant action arises from defendant Omland's alleged breach of contract and negligent and defective construction in connection with a project at plaintiffs' home located at 30 Crestwood Road, Syosset, New York. Plaintiffs allege that they were victimized by defendant Omland, an unlicensed and opportunistic home improvement contractor, who took advantage of them after an electrical fire in their home. Despite having been paid substantial sums, defendant Omland allegedly failed to complete the project at the Metz home. Because of the poor quality of the work performed, plaintiffs' allege much of it needed to be redone at a cost that dwarfs the initial price of the contract.
Defendant Omland now seeks to quash the subpoena duces tecum served by plaintiffs on non-party Bank of America which requests
"All documents, including account statement, wire transfers, and checks relating to withdrawals and deposits from the account(s) of Omland Erickson, LLC, Midnight Sun Design Corp. and Omland Building Corp., all of whose address is 10 or 14 Jackson Avenue, Syosset, New York, for the following periods:
August 2011 - Present"
CPLR § 3101(a) defines the scope of discovery and provides for full disclosure of all evidence material and necessary in the prosecution and defense of an action. Unlimited disclosure is not required ( Scorzari v Pezza , 111 AD3d 916 [2d Dept 2013]). The words material and necessary are construed liberally, however, to require disclosure of any facts bearing on the controversy which assist by sharpening the issues and reducing delay. The test is one of usefulness and reason ( Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
Pursuant to CPLR § 3124, the court is afforded broad discretion in managing disclosure. CPLR § 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which is a matter committed to the court's sound discretion ( Thompson v Dallas BBQ , 84 AD3d 1221 [2d Dept 2011]). CPLR § 3120(a)(1)(i) requires that the material sought to be discovered be specifically designated and specified with "reasonable particularity" in the notice. The use of the descriptions "any," "all" or "any and all" renders the notice for discovery and inspection generally improper ( Benzenberg v Telecom Plus of Upstate N.Y., 119 AD2d 717 [2d Dept 1986]).
Where as here, disclosure is sought from a non-party, the non-party must be given notice stating the circumstances or reasons such disclosure is sought or required ( Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 111 [1st Dept 2006]).
It is well settled that a motion to quash a subpoena duces tecum should be granted where the materials sought are utterly irrelevant to any proper inquiry i.e., the material sought is not relevant to the prosecution or defense of the action ( Matter of Kapon v Koch , 23 NY3d 32, 38 [2014]). Moreover, the burden of establishing the lack of relevance of the requested documents and/or records is on the person being subpoenaed ( Ledonne v Orsid Realty Corp., 83 AD3d 598, 599 [1st Dept 2011]).
While plaintiffs have cross moved to compel defendant to provide responses to a certain discovery demands including plaintiffs' first demand for documents (July 2, 2013); and plaintiffs' first set of interrogatories (July 24, 2014), they offer no cogent opposition to defendant Omland's motion to quash the subpoena duces tecum served on Bank of America beyond the assertion that defendant did not notify plaintiffs of their particular objections to the subpoena or request that it be modified. Under the circumstances, the allegation is unavailing.
Plaintiffs also request, inter alia:
that defendant Omland appear for a full deposition;
that defendant be precluded from issuing additional document demands; and
that defendant respond to plaintiffs' demand for expert disclosure
(September 3, 2014).
Accordingly, in the absence of any cogent opposition, and given the fact that the subpoena is overbroad, irrelevant and not likely to lead to meaningful information relevant to the prosecution of this lawsuit, the motion to quash the subpoena duces tecum dated February 27, 2015 and served on the Bank of America is granted, and the subpoena is hereby quashed.
While plaintiffs are clearly dissatisfied with both the sufficiency of defendant's response to plaintiffs' demand for the production of documents, answers to interrogatories - and delay in providing same, as well as with defendant's alleged failure to comply with the preliminary conference order entered June 4, 2014, they have failed to identify specific responses with which they are dissatisfied potentially burdening the court with the task of combing through the voluminous papers submitted to feret out the relevant items.
The proper means of obtaining disclosure is to serve a narrowly-tailored request, seeking only the information that relates directly to the claimed issues. Discovery demands that are overbroad, lack specificity or seek irrelevant documents are improper ( Conte v County of Nassau , 87 AD3d 559, 560 [2d Dept 2011]).
It is beyond cavil that all parties and their counsel have an obligation to fulfill their discovery and disclosure obligations, and resolve all disputes regarding same, before seeking judicial intervention. Dilatory tactics; evasive/obstructionist conduct and maneuvers, and/or a pattern of noncompliance with discovery obligations may give rise to an inference of willful and contumacious conduct, and may result in severe, adverse consequences. A motion to compel discovery is properly denied, however, where the discovery seeks irrelevant information or where the request itself, lacks specificity or is overly broad or burdensome ( Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2d Dept 2012]; Merkos L'Inyonei Chinuch , Inc. v Sharf , 59 AD3d 408, 410 [2d Dept 2009]).
Even a cursory review of plaintiffs' first set of interrogatories indicates that plaintiffs' demands are generally overbroad and clearly not tailored to elicit responses related to the claimed breach of contract and negligence claims set forth in the complaint. The burden of serving a proper demand is on counsel. It is not for the court to correct a palpably bad one ( Matter of New York Cent. Mut. Fire Ins. Co. v Librizzi , 106 AD3d 921 [2d Dept 2013]). Even if some of the requests contained within a demand may be relevant, it is not the court's function to prune the request ( Latture v Smith , 304 AD2d 534, 536 [2d Dept 2003]).
Accordingly, plaintiffs' request to compel discovery is denied and plaintiffs' first demand for documents and first set of interrogatories are hereby vacated without prejudice to service of an appropriately tailored request.
To the extent, however, that either side in this litigation has failed to comply with the preliminary conference order entered June 4, 2014, they are directed to do so by July 16, 2015. The failure to do so shall result in the imposition of an appropriate sanction pursuant to CPLR § 3126.
To the extent that any party is unable to provide the court ordered discovery, said party is directed to provide their adversary with a written affidavit attesting to the unavailability of said item.
The foregoing constitutes the Order of this Court. Dated: June 16, 2015
Mineola, N.Y.
/s/_________
J. S. C.