Opinion
Index No. 158140/2017 Motion Seq. Nos. 002 003 004 005
11-16-2023
RUI MA, Plaintiff, v. GUO WENGUI, GOLDEN SPRING (NEWYORK) LTD Defendant.
Unpublished Opinion
MOTION DATE: 01/25/2022, 02/15/2022
PRESENT: HON. FRANK P. NERVO Justice
DECISION + ORDER ON MOTION
HON. FRANK P. NERVO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 54, 55, 56, 57, 67, 68, 71,80, 81,82, 83, 84, 91, 101,125, 127, 133 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS
The following e-filed documents, listed by NYSCEF document number (Motion 003) 58, 59, 60, 61,62, 69, 70, 72, 85, 86, 87, 88, 89, 92, 128, 134 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS
The following e-filed documents, listed by NYSCEF document number (Motion 004) 64, 65, 66, 74, 75, 76, 77, 78, 79, 90, 129, 135 were read on this motion to/for EXTEND - TIME.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 94, 95, 96, 97, 100, 102, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121,130, 136 were read on this motion to/for VACATE/STRIKE NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR_.
Oral argument on the above motions was adjourned at the parties' request. Thereafter, defendants sought an additional adjournment on the fully submitted motions in light of defense counsel's anticipated application to be relieved as counsel (NYSCEF Doc. No. 131). The Court, by interim order, vacated oral argument and advised that it would take the motions on submission without argument. Defense counsel's motion to be relieved was denied as academic, defendants having filed a notice of substitution of counsel (NYSCEF Doc. No. 144). This decision and order results.
Motion Sequences 002 and 003 - Quash Subpoena
CPLR § 2304 requires a motion to quash a subpoena be made promptly, thus, making the issue of timeliness sui generis. Where a motion to quash is made returnable after the return date of the subpoena, the motion risks futility if the subpoena is obeyed (Brunswick Hospital Center, Inc. v., Hynes, 52 N.Y.2d 333, 339, "a motion to quash or vacate no longer is available"; see also Santangello v. People, 38 N.Y.2d 536, 539 "motion to quash ... should be made prior to the return date"). Although the instant subpoena's original date has passed, the parties adjourned compliance with same pending this motion. Accordingly, the motion is timely.
A party seeking discovery from a nonparty must state the "circumstances or reasons" underlying the subpoena, on its face, and the party seeking to quash the subpoena must establish the material sought is "utterly irrelevant" or "the futility of the process to uncover anything legitimate is inevitable or obvious" (Kapon v. Koch, 23 N.Y.3d 32, 34 [2014]). Should the witness opposing the subpoena make such a showing, the burden shifts to subpoenaing party to establish the material sought is "material and necessary" to the action (id. at 34).
Here the subpoenas at issue require compliance by January 11 and 12, 2022, nearly two years ago (NYSCEF Doc. Nos. 56, 60, and 61). The motions to quash were filed on January io, 2022, two days before the subpoenas were returnable. Furthermore, the motions to quash were not made returnable, in the first stance prior to adjournments, until January 31, 2022, 19 days after the subpoenas required compliance. The motions to quash were finally made returnable nearly two years after the compliance deadlines. Accordingly, denial of the motions to quash would ordinarily be appropriate as untimely.
The return date of the Frankel Subpoena is uncertain, as the method of service of same is unknown the Court cannot calculate whether additional time to comply should be added to the subpoena for fail service. In any event, the subpoena is likewise returnable sometime in late December 2022 or early January 2022.
However, the substance of the subpoenas is wildly inappropriate, seeking discovery and depositions of plaintiff's current counsel. The deposition of a party's attorney requires special circumstances (Gottfried v. Gottfried Baking Co., 4 A.D.2d 1031 [1st Dept 1957]) and is disfavored (Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401 [1st Dept 2018]). Deposing an adversary's counsel "hardly seems calculated to assist preparation for trial"; is "offensive to our conception of the adversarial process"; and "raises at least the possibility of attorney disqualification" (Liberty Petroleum Realty, LLC, supra; citing Equitable Life Assur. Socy. of U.S. v. Rocanova, 207 A.D.2d 294 [1st Dept 1994]; Giannicos v. Bellevue Hosp. Med. Center, 7 Mise.3d [Sup. Ct.] [Bransten, J.]; SUS Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 [1987]). Notably absent from defendants' answers is any allegation of a conspiracy involving plaintiffs counsel or any of the other grounds upon which they now seek the deposition of plaintiff's counsel. Accordingly, there is no "good faith basis" for deposition or discovery from plaintiff's counsel, as required (id.; Matter of Winston, 238 A.D.2d 345 [2d Dept 1997]).
158140/2017 MA, RUI vs. WENGUI, GUO Motion No. 002 003 004 005 Page 4 of 5 MOTION SEQUENCES 004 AND 005 - VACATE NOTE OF ISSUE & EXTEND TIM
A motion to strike a note of issue must generally be brought within 20 days of the filing of the note of issue, absent unusual or unanticipated circumstances causing prejudice (22 NYCRR 2O2.2i[d] and [e]; Audiovox Corp. v. Benyamini, 265 A.D.2d 135 [2d Dept 2000]). "While a note of issue will generally be stricken if the case is not ready for trial, the motion to strike can be denied where the parties had sufficient time to complete discovery" (Ireland v. Geico Corp., 2 A.D.3d 917 [3d Dept 2003]; Kropp v. Town of Shandaken, 91 A.D.3d 1087 [3d Dept 2012]).
Having failed to establish that deposing plaintiff's counsel is necessary or material to their defense, and having failed to raise any other discovery which is alleged to be incomplete, defendants have not provided a sufficient basis to strike or vacate the Note of Issue (Legacy Builders/Developers Corp. v. Hollis Care Group, Inc., 162 A.D.3d 649 [2d Dept 2018]). Likewise, defendants have not provided a sufficient basis to extend the note of issue (id.). Following the transfer of this matter to this Part, the Court issued several conference orders providing significant time to complete discovery (see e.g. NYSCEF Doc. Nos. 52 &53). Furthermore, prior to the transfer of this matter, the Court issued no fewer than 12 conference orders addressing discovery over a four-year period. Therefore, the motion to strike the note of issue is denied as is the motion to extend time to re-file same.
Accordingly, it is
ORDERED that motion sequences 002 and 003 are granted and a protective order issues. The subpoenaed parties shall not respond to the subpoena nor appear for deposition; and it is further
ORDERED that motion sequence 004 and 005 are denied.