Opinion
INDEX NO. 158619/2014
05-24-2019
ASSAF BENI SINAI, Plaintiff, v. KATHY GORMAN O'CONNOR, MARY GORMAN and GORMAN EAST 31st CORP., f/k/a LISMORE TRAVEL, INC., Defendants.
NYSCEF DOC. NO. 104 PRESENT: HON. TANYA R. KENNEDY Justice MOTION SEQ. NO. 003
DECISION AND ORDER
Plaintiff moves for an order pursuant to CPLR 2304 and CPLR 3103: (1) Quashing Defendants' deposition subpoena and subpoena duces tecum; (2) Issuing a Protective Order; and (3) Granting plaintiff such other and further relief as the Court deems just and proper.
Plaintiff is a real estate broker licensed in the State of New York (Sinai Affidavit ¶3). Defendant Gorman East 31st Corporation (Gorman Corp.) was the fee owner of the land and building located at 106 East 31st Street in Manhattan (id., ¶4). Defendants Kathy Gorman O'Connor and Mary Gorman are principals of Gorman Corp. (id.). Defendants employed Plaintiff as a real estate broker to procure a purchaser for certain real property owned by Gorman Corp., known as and located at 106 East 31st Street, New York, New York (Verified Complaint, ¶5; Sinai Affidavit ¶14).
The neighboring properties located at 108 East 31st Street and 110 East 31st Street (the adjoining properties) were on the market for sale (Sinai Affidavit ¶10). On or about August 13, 2013, the property located at 110 East 31st Street was conveyed to Investment Group represented by Iair Rosenkranz (Rosenkranz) (id., ¶19). On or about December 13, 2013, the property located at 108 East 31st Street was conveyed to an entity controlled by the Investment Group (id., ¶20). In June of 2014, the subject property, 106 East 31st Street, was sold to the entity controlled by Investment Group (id., ¶27).
Plaintiff commenced this action against defendants seeking a brokerage commission. Defendants filed an answer asserting various affirmative defenses.
Defendants served a subpoena duces tecum and a deposition subpoena, both dated May 11, 2017 (May 2017 subpoenas), on non-party Rosenkranz. Plaintiff now moves to quash the subpoenas pursuant to CPLR 2304 and for a protective order pursuant CPLR 3103(a). The May 2017 subpoena duces tecum sets forth seven (7) separate requests. Request numbers one through five demand all documents from January 1, 2012 to the current date between Rosenkranz and Sinai, Steven Laduzinski and Kathy O'Connor relating in any way to the buildings located at 106 East 31st Street, 108 East 31st Street and 110 East 31st Street. Request number six demands "all documents ... between IAIR ROSENKRANZ and ASSAF BENI SINAI from January 1, 2012 to the current date relating in any way to work undertaken by ASSAF BENI SINAI for any entity in which IAIR ROSENKRANZ is or was a either a member, shareholder, officer, director, representative, agent or an authorized signatory." Lastly, request number seven demands "all documents ... between IAIR ROSENKRANZ and ASSAF BENI SINAI from January 1, 2012 to the current date relating in any way to KATHY O'CONNOR or STEVE LADUZINSKI or the building located at 106 East 31st Street, New York, New York."
Counsel for plaintiff argues, inter alia, that: (1) defendants' subpoena seeks information that is clearly overbroad, burdensome and oppressive; and (2) plaintiff is entitled to a protective Order limiting scope of defendants' subpoena pursuant to CPLR 3103(a). Defendants' counsel opposes plaintiff's motion arguing, inter alia, that the subpoenas are not overbroad or vague.
CPLR 3101(a) provides that:
Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:
(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.
A court has broad discretion over the discovery process to determine whether the information sought is "material and necessary" (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The words "material and necessary" are to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (id.).
However, under CPLR 3103(a):
The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
CPLR 2304 provides that a court may "quash, fix conditions or modify a subpoena." A party seeking to quash a subpoena duces tecum is entitled to such relief where it meets its burden of establishing that "the futility of the process to uncover anything legitimate is inevitable or obvious ... or where the information sought is utterly irrelevant to any proper inquiry" (Matter of Kapon v Koch, 23 NY3d 32, 39 [2014] [internal citations and quotation marks omitted]). Once the moving party satisfies its burden on a motion to quash, the burden then shifts to the requesting party to establish that the information sought is "material and necessary" to the prosecution or defense of the action (see Ferolito v Arizona Beverages USA, LLC 119 AD3d 642, 643 [2d Dept 2014]).
The Court of Appeals has consistently held that a subpoena duces tecum "may not be used for the purpose of discovery or to ascertain the existence of evidence," but rather "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Matter of Terry D., 81 NY2d 1042, 1044 [2015] [internal citations and quotation marks omitted]).
The May 11, 2017 subpoena duces tecum is extremely overbroad and fails to identify documents with any specificity. Additionally, plaintiff has been unable to satisfy his burden of establishing that the information related to the adjacent properties is material and necessary to the litigation at hand. Where, as here, a subpoena seeks "any and all documents" and fails to specify the particular records sought, the party subject to the subpoena is not required to "cull the good from the bad" (Platt v GC ENG & Assoc. Eng'g, P.C., 2014 NY Slip Op 31579(U), *3 (Sup Ct, NY County 2014). In addition, "[c]ourts have the option to quash those subpoenas in their entirety, rather than prune them (id.) and this Court exercises its discretion to follow such course of action. Therefore, Rosenkranz need not answer the May 11, 2017 subpoena duces tecum.
Lastly, in terms of the May 11, 2017 subpoena for a deposition of non-party Rosenkranz, plaintiff's arguments are unavailing. Plaintiff previously submitted a witness affidavit from Rosenkranz dated May 11, 2017, in support of plaintiff's previous cross-motion for summary judgment. The Rosenkranz affidavit stated that Sinai was "the procuring cause of this transaction and without his involvement," Rosenkranz's organization would not have closed on the subject property (NYSCEF document #61, ¶12). Further, in August and December of 2013 the adjoining properties were conveyed to a group of investors represented by Rosenkranz (Sinai Affidavit ¶19, 20). The subject property was sold to the same investment group represented by Rosenkranz in June of 2014 (Sinai Affidavit ¶27).
ACCORDINGLY, it is
ORDERED that the motion to quash the May 11, 2017 subpoena duces tecum pursuant to CPLR 2304 and for a protective order, pursuant to CPLR 3103(a), is granted; it is further
ORDERED that the motion to quash the May 11, 2017 deposition subpoena of non-party Rosenkranz, pursuant to CPLR 2304, and for a protective order, pursuant to CPLR 3103(a), is denied; it is further
ORDERED that the parties are directed to appear for the previously scheduled status conference on May 29, 2019 at 2:15PM.
This constitutes the decision of the Court. May 24, 2019
DATE
/s/ _________
TANYA R. KENNEDY, J.S.C.