3103 (not required to create what does not exist) (ok to watch inspection)

Curran v New York City Tr. Auth., 2018 NY Slip Op 03798 [1st Dept. 2018]

Plaintiff failed to demonstrate that she would be prejudiced by defendants' representatives observing and recording her inspection and photographing of the subject bus. Defendants' representatives may be present during the inspection, provided they do not interfere with the examination.

Defendants are not required to create a document, such as a certification of no changes, if none exists, but plaintiff is entitled to discovery regarding any changes to the subject bus from the date of the accident to the date of the inspection.

Court is not a weedwhacker

Sears Roebuck & Co. v Vornado Realty Trust, 2018 NY Slip Op 01421 [1st Dept 2018]

Nothing in the record suggests that defendants acted willfully, contumaciously, or in bad faith, warranting the drastic remedy of striking the answer (see Henderson—Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Indeed, defendants produced responsive documents to requests that were the subject of plaintiff's motion, as shown by their affirmation in support of the first cross motion, of which this Court takes judicial notice (see Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 AD3d 197, 202 [1st Dept 2010]). Plaintiff is not entitled to confidential information about the interrelationship and ownership of defendants. Moreover, defendants submitted responses to plaintiff's 86 interrogatories, and, as the majority of their responses to the interrogatories in dispute were proper, the court was not obligated to "prune" the interrogatories for plaintiff (see Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249, 250 [1st Dept 1996]).

A desperate attempt to avoid discovery [CPLR 3126, 3103]

Compare with Donohue v Fokas, 112 AD3d 665 [2d Dept 2014] (""[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured") and  National Union Fire Ins. Co. of Pittsburgh, Pa. v TransCanada Energy USA, Inc., 114 AD3d 595 [1st Dept. 2014] ("Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so merely because [the] investigation was conducted by an attorney") (internal quotes omitted).

Prior Appellate history: Ural v Encompass Ins. Co. of Am., 97 AD3d 562 [2d Dept 2012]

With respect to the parties' discovery issues, CPLR 3101 (a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Matter of Skolinsky, 70 AD3d 845 [2010]; Riverside Capital Advisors v First Secured Capital Corp., 292 AD2d 515 [2002]). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).

Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370 [2008]). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294 [1969]) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; see also Agovino v Taco Bell 5083, 225 AD2d 569 [1996]). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812 [2012]), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.

 

Ural v Encompass Ins. Co. of Am., 2018 NY Slip Op 01350 [2d Dept 2018]

The underlying facts of this case are summarized in the decision and order of this Court on a prior appeal in this action (see Ural v Encompass Ins. Co. of Am., 97 AD3d 562). On the prior appeal, this Court reinstated the plaintiff's causes of action to recover damages for unfair trade practices under General Business Law § 349 and for violation of Insurance Law § 2601, which prohibits unfair claim settlement practices. This Court determined that the defendants Encompass Insurance Company of America and Encompass Insurance Company (hereinafter together Encompass) were required to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a "detailed privilege log" of documents claimed to be exempt from disclosure based upon a privilege or as work product for litigation (Ural v Encompass Ins. Co. of Am., 97 AD3d at 567). This Court further determined that the Supreme Court properly denied that branch of the plaintiff's motion which was to compel Encompass to comply with certain discovery demands because the demands were overbroad, lacked specificity, or sought irrelevant information, but declined to grant a protective order (see CPLR 3103).

After depositions of various witnesses, the plaintiff served Encompass with a third notice for discovery and inspection which made specific references to the deposition testimony in seeking, inter alia, various documents and other material. Encompass then moved for a protective order pursuant to CPLR 3103(a) with respect to the third notice for discovery and inspection, contending that the plaintiff was attempting to obtain, in numerous instances, information and documents that the Supreme Court and this Court had deemed to be palpably improper. The plaintiff cross-moved, inter alia, pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it for failure to comply with the plaintiff's outstanding discovery demands in the third notice for discovery and inspection and for failure to produce for in camera inspection the "detailed privilege log" which this Court, on the prior appeal, had directed Encompass to produce.

The Supreme Court denied Encompass's motion pursuant to CPLR 3103(a) for a protective order, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it to the extent of conditionally striking certain portions of the verified answer and precluding Encompass from offering certain evidence at trial if Encompass failed to comply with the plaintiff's outstanding discovery demands from his third notice for discovery and inspection and produce the detailed privilege log for in camera inspection.

Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome (see Greenman-Pedersen, Inc. v Zurich Am. Ins. Co., 54 AD3d 386, 387; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Contrary to Encompass's contention, the plaintiff's third notice for discovery and inspection was not palpably improper or overly broad and burdensome. Unlike the first two notices for discovery and inspection, the third notice for discovery and inspection provided specific references to deposition testimony, details, and time parameters, and sought information material and necessary to the pending causes of action (see Yoshida v Hsueh-Chih Chin, 111 AD3d 704). Accordingly, Encompass's motion pursuant to CPLR 3103(a) for a protective order against the plaintiff's third notice for discovery and inspection was properly denied.

Further, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) based upon Encompass's failure to comply with the prior order of this Court directing it to produce a detailed privilege log for in camera inspection (see Morales v Zherka, 140 AD3d 836Padovano v Teddy's Realty Assoc., Ltd., 31 AD3d 514, 515). Examination of the detailed privilege log in camera is necessary before a determination of whether certain items demanded in the third notice of discovery and inspection should in fact be disclosed. If such a log does not exist, then Encompass should so state to the Supreme Court as the reason for failing to produce it (see CPLR 3120[1][I]; Crawford v Burkey, 124 AD3d 1184Romeo v City of New York, 261 AD2d 379; Corriel v Volkswagen of Amer., 127 AD2d 729, 731). However, if such a log does not exist, Encompass cannot claim that the items demanded were privileged.

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) for failure to comply with the balance of the plaintiff's third notice for discovery and inspection, as there has been no clear showing that Encompass's lack of compliance with the third notice for discovery and inspection was willful and contumacious (see Dimoulas v Roca, 120 AD3d 1293Barnes v City of New York, 43 AD3d 1094Patel v DeLeon, 43 AD3d 432, 432-433). The items demanded in the third notice for discovery and inspection should be produced, and sanctions pursuant to CPLR 3126 should only be considered if Encompass continues to resist disclosure.

 

Considering that this firm usually takes a "rules are rules" position in Supreme Court, its position on appeal is hard to reconcile.

Bad Subpoena: everyone gets sanctioned

22 NYCRR 130-1.1 Costs; sanctions

Duval v Duval, 2011 NY Slip Op 05657 (App. Div., 2nd 2011)

Contrary to the plaintiff's contention, under the particular circumstances of this case, the appeal from the judgment brings up for review the orders dated January 22, 2010, and January 26, 2010 (see CPLR 5501[a][1]).

The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's  health, since the parties to a contested custody proceeding place their physical and mental conditions in issue (see Torelli v Torelli, 50 AD3d 1125, 1125; Anonymous v Anonymous, 5 AD3d 516, 517; Rosenblitt v Rosenblitt, 107 AD2d 292, 293-294). Here, however, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant (see 22 NYCRR 130-1.1[c]). In view of the foregoing, that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted, and accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel.

Furthermore, the Supreme Court improvidently exercised its discretion in denying, with limited exception, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c]). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or destroyed and were not transmitted to any third party.

 

3101, Disclosure, Experts, and Expert rebuttal not required (last decision)

CPLR  R. 4401 Motion for judgment during trial

CPLR § 3101 Scope of disclosure

CPLR § 3103

Motion not made on notice

CPLR R. 3108 Written questions; when permitted

Botwinik v Moseson, 2011 NY Slip Op 04809 (App. Div., 1st 2011)

Judgment, Supreme Court, Nassau County (F. Dana Winslow, J.), entered on or about September 28, 2009, in favor of defendants, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about May 18, 2009, which granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss this medical malpractice action, unanimously reversed, on the law without costs, the motion denied, and the complaint reinstated.

In making their oral motion, after the jury was empaneled and before opening arguments, defendants argued that plaintiff's proposed expert, though a highly qualified registered nurse, lacked the necessary qualifications to give a medical opinion as to the requisite standard of informed consent (see CPLR 4401-a; Orphan v Pilnik, 15 NY3d 907 [2010]).

In opposition, plaintiff relied partially upon the deposition testimony of the defendant doctor which was not before the court, and the CPLR 3101(d) disclosure of the nurse's opinion. In addition, plaintiff orally cross-moved to substitute the testimony of a medical doctor for the testimony of the nurse, if the court ruled that plaintiff's offer was inadequate to establish the requisite prima facie claim. Apparently the court gave plaintiff's counsel a break to research the issue of the nurse's qualification to give an opinion under New York law, but did not read the deposition testimony. The court granted defendants' in limine motion and sub silentio denied plaintiff's.

CPLR 4401-a states that "[a] motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent
if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent" (emphasis added).

The grant of dismissal pursuant to CPLR 4401-a was an abuse of discretion, given that the timing of defendants' oral application was not at the end of plaintiff's case, the record on which the court ruled was sparse and the court failed to consider plaintiff's offer to substitute a medical doctor's opinion for the nurse's (see Jean-Louis v City of New York, 60 AD3d 737, 738  [2009] [court erred in dismissing the complaint before the plaintiff had completed her proof]; Greenbaum v Hershman, 31 AD3d 607 [2006] ["plaintiff should have been afforded the opportunity to conclude her case" and present expert medical testimony regarding the qualitative insufficiency of her consent]).

Because defendants chose to move orally as opposed to making a formal motion on notice, plaintiff had little opportunity to develop a full record and be heard. Moreover, courts favor disposition of cases on the merits rather than on oral application made after a jury is impaneled and waiting (see Murray v Brookhaven Mem. Hosp. Med. Ctr, 73 AD3d 878, 879 [2010]; Williams v Naylor, 64 AD3d 588, 589 [2009]).

Accordingly, we reverse, deny defendants' motion and reinstate the complaint.

Coventry Real Estate Advisors, L.L.C. v Developers Diversified Realty Corp., 2011 NY Slip Op 04750 (App. Div., 1st 2011)

The motion court providently exercised its discretion in denying plaintiffs' motion for the issuance of commissions pursuant to CPLR 3108, since they failed to demonstrate that commissions were "necessary or convenient" (CPLR 3108; Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219, 219 [2009]). The motion court stated that plaintiffs could submit new papers if they wanted commissions for out-of-state depositions on a topic other than uncharged crimes; hence, the current appeal concerns only uncharged crimes. Although "a witness may be cross-examined [at trial] with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" (Badr v Hogan, 75 NY2d 629, 634 [1990]), here, due to the affidavits plaintiffs obtained, they already have a good-faith basis to cross-examine an executive of one of the defendants about an uncharged crime. If the executive denies the uncharged crime, plaintiffs will not be allowed to use extrinsic evidence solely to impeach his credibility (see People v Schwartzman, 24 NY2d 241, 245 [1969], cert denied 396 US 846 [1969]).

We reject plaintiffs' argument that they can use evidence of the uncharged crime and a cover-up thereof to show intent for their fraud claim.

Plaintiffs failed to preserve their argument that the motion court should have considered a protective device pursuant to CPLR 3103, rather than deny its motion in its entirety, and we decline to consider it.

Because the first four pages of the anonymous document concern the uncharged crime, for the reasons stated above, the motion court providently exercised its discretion in denying plaintiff's motion to use those pages in discovery. The pages are also not discoverable because they are privileged (see CPLR 3101[b],[c]; 4503). However, the last page is not privileged, and it has relevance beyond the uncharged crime since it alleges that an executive of one of the defendants ordered a "data dump" on his computer. Indeed, plaintiffs may use the last page to discover if the executive deleted from his computer material relevant to this case. Accordingly, plaintiffs are entitled to use the last page in discovery.

Accent Collections, Inc. v Cappelli Enters., Inc., 2011 NY Slip Op 04609 (App. Div., 2nd 2011)

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" should be interpreted liberally, and the test is one of "usefulness and reason" (Kooper v Kooper, 74 AD3d 6, 10 [internal quotation marks omitted]). Unlimited disclosure, however, is not required (see Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460), and the rules provide that the court may issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]).

Generally, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties' competing interests (see Kooper v Kooper, 74 AD3d at 17; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460). On appeal, "this Court has the authority to review a discovery order to determine whether the trial court has abused its discretion as a matter of law, or in the absence of abuse, has exercised its discretion improvidently" (Kooper v Kooper, 74 AD3d at 17).

A motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Paradis v F.L. Smithe Mach. Co., Inc., 25 AD3d 594). While the failure of a party to challenge the propriety of a notice for discovery and inspection within the time prescribed by the CPLR forecloses inquiry into the propriety of the information sought, there is an exception with regard to requests that are palpably improper (see Otto v Triangle Aviation Servs., 258 AD2d 448; see also During v City of New Rochelle, N.Y., 55 AD3d 533; Velez v South Nine Realty Corp., 32 AD3d 1017; Cipriano v Righter, 100 AD2d 923).

Here, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motion which were to compel the defendants to produce responsive documents and information in response to the plaintiff's interrogatories one through five and demands one through four, and in denying that branch of the motion which sought an order deeming the defendants' objections waived, as the demands and interrogatories at issue were palpably improper, because they sought irrelevant information, or were overbroad and/or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Velez v South Nine Realty Corp., 32 AD3d 1017; Otto v Triangle Aviation Servs., 258 AD2d 448).

The Supreme Court providently denied that branch of the plaintiff's motion which sought costs and attorneys' fees, as the plaintiff failed to demonstrate that the defendants' conduct was frivolous (see 22 NYCRR 130-1.1[c]), and also providently denied those branches of the motion which were to deem the issues resolved in favor of the plaintiff and/or strike the defendants' second amended answer, since there was no showing that the defendant's conduct was willful and contumacious (see Nieves v City of New York, 35 AD3d 557; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Jenkins v City of New York, 13 AD3d 342; Fellin v Sahgal, 268 AD2d 456).

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

Plaintiffs were not required to produce an expert to refute defendant's expert's conclusions (see e.g. Hendricks v Baksh, 46 AD3d 259 [2007]).

 

3101; 3103; Common Interest Priv.

CPLR  3101 Scope of disclosure

Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of New York, 2011 NY Slip Op 01064 (App. Div., 1st 2011)

While defendants' discovery request for all plaintiff's home and cellular telephone records dating from six years before the sending of the anonymous faxes that purportedly led to her termination was overly broad and unnecessarily burdensome, the denial of the request in its entirety was inappropriate, given defendants' showing of the need for the discovery. Defendants allege that plaintiff was terminated not in retaliation for commencing a discrimination suit but because of her involvement in the sending of certain anonymous faxes and her dishonesty during the investigation into the sending of the faxes. Plaintiff asserts that she does not know the person who allegedly caused the faxes to be sent. However, there is documentary evidence suggesting that he is her brother-in-law. Thus, we conclude that plaintiff's telephone records, as circumscribed above, for the year preceding the sending of the faxes are "material and necessary" to the defense of this action (CPLR 3101[a]; see Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [2006]).

Contrary to defendants' contention, production of the remainder of the information  requested should not be compelled, despite plaintiff's untimely objection to the request (Lea v New York City Tr. Auth., 57 AD3d 269 [2008]; Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).

American Bank Note Corp. v Daniele, 2011 NY Slip Op 01063 (App. Div., 1st 2011)

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103(a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. . . " The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38 [2009] cert denied __ US __, 130 S Ct 2520 [2010]).

Here, defendant Daniele had not made travel arrangements to come to the United States. There was also a question of whether he could lawfully leave Argentina because of charges plaintiffs filed against him in that country. Thus, coming to New York to testify was "not feasible as a practical matter" (Matter of Singh, 22 Misc 3d 288, 290 (Sup Ct, Bronx County [*2]2008), and would have resulted in hardship (Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). Accordingly it was proper to allow defendants to testify from Argentina via video conferencing.

Mt. McKinley Ins. Co. v Corning Inc., 2011 NY Slip Op 01061 (App. Div., 1st 2011)

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (App. Div., 2nd 2011)

While depositions of parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815; LaRusso v Brookstone, Inc., 52 AD3d 576, 577). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d at 815-816; Wygocki v Milford Plaza Hotel, 38 AD3d 237; Rogovin v Rogovin, 3 AD3d 352, 353; Matter of Singh, 22 Misc 3d 288; see also Hoffman v Kraus, 260 AD2d 435, 437; cf. Matter of Albarino, 27 AD3d 556).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its discretion in staying all proceedings in the action until the plaintiff could return to the United States for his deposition.

 

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).

***

Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.

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"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.