Opinion
Index No. 154687/2020 Motion Seq. Nos. 007 008
06-25-2024
HENRY MORI, Plaintiff, v. RIOMAR CORP., MARTHA SILVA FRANSA, KANA RESTAURANT, D/B/A KANA, D/B/A KANA TAPAS BAR AND RESTAURANT, ALEJANDRO VEGA, and JOHN DOE, Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. DAVID B. COHEN JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 007) 187, 188, 189, 190, 193, 204, 206 were read on this motion to/for REARGUMENT/RECONSIDERATION
The following e-filed documents, listed by NYSCEF document number (Motion 008) 195, 196, 197, 198, 199, 200, 201, 202, 203, 205, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS
In this intentional tort and negligence action, plaintiff moves, pursuant to CPLR 2221(d), for leave to reargue his cross-motion for an extension of time to serve and, upon reargument, for an order granting the cross-motion. Defendants move to quash a subpoena duces tecum issued by plaintiff against nonparty Serrano Tax &Business Services, Inc. (Serrano), and plaintiff crossmoves to compel Serrano to comply with the subpoena.
I. Factual and Procedural Background
As set forth in this Court's December 14, 2023 order (NYSCEF Doc No. 184), plaintiff commenced this action in June 2020 after he was allegedly injured from an assault by employees of defendant Kana Restaurant, which was then allegedly owned by, among others, defendants Armando Orofina and Andres Vega (Doc No. 1). Shortly thereafter, plaintiff allegedly served Orofina and Vega (Doc Nos. 6 and 9). After subsequent motion practice, by decision and order entered January 20, 2022, plaintiff was directed to complete service on Orofina and Vega within 30 days of service of the January 2022 order with notice of entry (Doc No. 84). Plaintiff then allegedly served Orofina and Vega, which constituted his third attempt to serve them (Doc Nos. 91-92).
Defendants then moved to dismiss the complaint against Orofina and Vega, arguing that plaintiff failed to properly serve them in accordance with the January 2022 order (Doc Nos. 93-94). Plaintiff opposed the motion and cross-moved for an order granting him a second extension of time to serve Orofina and Vega should service be deemed incomplete (Doc No. 110), which defendants opposed (Doc No. 115). By decision and order entered September 19, 2022, the motions were held in abeyance "pending the outcome of a traverse hearing regarding the propriety of service" (Doc No. 121). The matter was then referred to Special Referee Jeremy R. Feinberg to conduct the traverse hearing and "to hear and determine the issue of service of process."
In April 2023, over the course of two days, Special Referee Feinberg held the traverse hearing and heard testimony from defendants and the owner of the process service agency used by plaintiff to purportedly serve Orofina and Vega. Although he found all of the testifying witnesses credible, he ultimately concluded that plaintiff "failed to meet his burden of demonstrating proper service of the summons and complaint on [Orofina and Vega] by a preponderance of the evidence" (Doc No. 182).
By decision and order, dated December 14, 2023, defendants' motion to dismiss was granted and plaintiff's cross-motion was denied (Doc No. 184). Regarding plaintiffs crossmotion, it was determined that plaintiff failed to show good cause for an extension of time to serve or why granting such an extension was in the interest of justice.
Shortly thereafter, plaintiff served a nonparty subpoena duces tecum upon Serrano seeking, among other things, the following items:
1. Defendants' "payroll records" from around the date of plaintiffs incident including "names, pay rates, hours worked, overtime details, and any bonuses or deductions,"
2. A complete roster of defendants' employees,
3. "All tax records" from 2019 and 2020,
4. "All shift schedules and timesheets, including detailed clock-in and clock-out records,"
5. All W-9s or 1099s from 2019 and 2020,
6. "Any financial sections of personnel files" from 2019,
7. Insurance policies in place at the time of plaintiffs incident,
8. Any contracts and financial records regarding contract agencies used in hiring employees,
9. "Any financial communications between the bar management and staff or external parties" regarding plaintiffs incident,
10. Records of "bonuses or incentives paid to all employees" from 2019 and 2020.
(Doc No. 201).
Defendants move to quash the nonparty subpoena (Doc No. 195). Plaintiff opposes the motion and cross-moves to compel Serrano to comply with it (Doc Nos. 207-208), which defendants oppose (Doc No. 215). Plaintiff also moves for leave to reargue his prior cross-motion for an extension of time to serve (Doc No. 187), which defendants oppose (Doc No. 204).
II. Legal Analysis and Conclusions
A. Plaintiffs, Motionfor Leave to Reargue
Plaintiff contends that he should be granted leave to reargue because this Court erred by concluding that he failed to show good cause for an extension, as he was diligent in his multiple attempts at service of process. He also contends that this Court erred in determining that an extension was not warranted in the interest of justice, because a balancing of the equities involved here favors allowing him an opportunity to continue the action. Defendants argue in opposition that plaintiff motion should be denied because his failure to attach all of the underlying motion papers renders the motion procedurally defective. They also argue that he failed to demonstrate that this Court overlooked any facts or misapprehended the law. In reply, plaintiff maintains that an extension is warranted based on good cause shown or in the interest of justice.
"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision" (William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22, 27 [1st Dept 1992] [internal quotation marks and citations omitted], Iv dismissed and denied 80 N.Y.2d 1005 [1992]; see Foley v Roche, 68 A.D.2d 558, 567-568 [1st Dept 1979]).
In his moving papers, plaintiff fails to identify any facts overlooked or any law misapprehended in the January 2022 order denying his cross-motion for an extension of time to serve. His contentions amount to a mere disagreement with this Court's prior determinations regarding good cause and the interest of justice. "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided" (Matter of Setters v AI Props. & Devs. (USA) Corp., 139 A.D.3d 492, 492 [1st Dept 2016]; see Mangine v Keller, 182 A.D.2d 476,477 [1st Dept 1992]). Therefore, plaintiffs motion for leave to reargue is denied (see Matter of Setters, 139 A.D.3d at 492).
B. Defendants, Motion to Quash the Subpoenas
Defendants contend that the nonparty subpoena duces tecum should be quashed because it is "overly broad, unduly burdensome, ambiguous [,] and not calculated to lead to evidence" that is material and necessary. They further maintain that the information plaintiff seeks through the subpoena has already been provided. Plaintiff argues in opposition that defendants have no standing to challenge the subpoena, and that the information sought is relevant.
Plaintiffs contention that defendants lack standing to challenge is unavailing. "A person other than one to whom a subpoena is directed has standing to move to quash the subpoena where he or she has a proprietary interest in the subject documents or where they involve privileged communications" (Hyatt v State of Cal. Franchise Tax Bd, 105 A.D.3d 186, 195 [2d Dept 2013] [citations omitted]; see Matter of Radio Drama Network, Inc., 214 A.D.3d 461, 463 [1st Dept 2023]). Defendants certainly have a proprietary interest in their financial records and private contracts, and thus, they have standing to challenge the nonparty subpoena at issue here. In any event, it is well established that "a court has power, even without any motions by the parties, to control discovery" and determine whether to quash nonparty subpoenas (Feiner & Lavy, P. C. v Zohar, 210 A.D.3d 408,408 [1st Dept 2022]).
Regarding defendants' contentions, "[a]n application to quash a subpoena should be granted only where 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" (Anheuser-Busch, Inc. v Abrams, 71 N.Y.2d 327, 331-332 [1988] [internal quotation marks, brackets, and citations omitted]), and defendants, as the parties seeking to quash the subpoena, bear the burden of making that showing (see e.g. Wells Fargo Bank N.A. v Andalex Aviation II, LLC, 173 A.D.3d 418, 419 [1st Dept 2019] [affirming denial of motion because "movant failed to carry her prima facie burden of showing that the discovery sought was irrelevant"]).
Here, defendants have demonstrated that most, but not all, of the information sought by plaintiff is utterly irrelevant. In his complaint, plaintiff alleged that an unnamed defendant John Doe assaulted him and that defendants were negligent in the hiring, training, and supervision of their employees. "Recovery on a negligent hiring and supervision theory requires a showing that the employer was on notice of a propensity to commit the alleged acts," and such notice exists "if a reasonably prudent employer, exercising ordinary care under the circumstances, would have been aware of the employee's propensity to engage in the injury-causing conduct" (Gupta v YM Pro Corp, 220 A.D.3d 442, 442 [1st Dept 2023] [internal quotation marks and citations omitted]).
Many of the items sought by plaintiff are utterly irrelevant to showing that defendants were on notice about any employee propensities. Plaintiffs subpoena seeks, among other things, information about pay rates, overtime work, bonuses, tax records, financial sections of personnel files, all of which have no bearing on an employee's propensity to potentially injure a patron by assaulting them. The only information sought by the subpoena material and necessary to plaintiffs negligent hiring, training, and supervision claims are employee identification details such as name, title, dates of employment, and contact information, employee work schedules like shift schedules and timesheets, and agreements with external agencies regarding hiring practices.
Further, to the extent that plaintiff is using the subpoena as a means to identify which employee was the unnamed John Doe who allegedly assaulted him, the same relevancy determination applies-employee pay rates, bonuses, and other financial information are utterly irrelevant to identifying that individual. Therefore, defendants' motion to quash is granted to the extent that Serrano is only required to respond to item numbers 2, 4, and 8 in the subpoena (see Brook v Peconic Bay Med. Ctr., 162 A.D.3d 503, 504 [1st Dept 2018] [affirming motion court's quashing of subpoena against nonparty because defendant medical center's treatment of other doctors suspected of malpractice not relevant to plaintiffs claims regarding his discipline, as plaintiff was never disciplined for malpractice]; Lupe Dev. Partners, LLC v Pacific Flats I, LLC, 118 A.D.3d 645, 645 [1st Dept 2014] [affirming motion court's quashing of subpoena seeking information about nonparty's assets because the assets were not relevant to plaintiffs claims in the underlying action], Iv dismissed 24 N.Y.3d 998 [2014]).
C. Plaintiff's Cross-Motion to Compel
Based on the findings above that portions of the nonparty subpoena seek information that is material and necessary, plaintiffs cross-motion is granted, and Serrano is directed to comply with items 2,4, and 8 of the subpoena.
Accordingly, it is hereby:
ORDERED that plaintiffs motion (Seq. 007) for leave to reargue is denied; and it is further
ORDERED that defendants' motion (Seq. 008) to quash the subpoena duces tecum served upon nonparty Serrano Tax &Business Services, Inc. is partially granted, the subpoena is quashed with respect to items 1, 3, 5-7, and 9-11, and the subpoenaed party shall produce any documents related to items 2,4, and 8 in response; and it is further
ORDERED that plaintiffs cross-motion (Seq. 008) to compel nonparty Serrano Tax &Business Services, Inc. to comply with the subpoena is partially granted, and Serrano is directed to respond to the subpoena within 30 days of service of notice of entry of this order.