Opinion
709967/20
08-04-2020
Helen SKARLA, Plaintiff, v. NPSFT LLC, NPSFT1 LLS, Eldridge Properties, Inc., Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq., PLLC, Defendants.
The following papers read on this motion by plaintiff (mot. Seq. No. 26) pursuant to CPLR 3126 to preclude defendants Kostas Golfinopoulos and Kostas Golfinopoulos PLLC (the Golfinopoulos defendants) from introducing at trial, or by motion for summary judgment, documentary evidence or testimony concerning certain documents not produced during discovery, and strike the answer of the Golfinopoulos defendants with prejudice; this motion by the Golfinopoulos defendants (mot. Seq. No. 27) pursuant to CPLR 3126 to preclude the admission of all documents and testimony given by non-party witness Frances Eldridge, in response to plaintiff's subpoena, including the deposition transcript of Eldridge's testimony, and for an award of sanctions against plaintiff pursuant to 22 NYCRR 130-1.1, in an amount equal to the costs, including attorneys' fees, incurred in connection with the motion; and this motion by the Golfinopoulos defendants (mot. Seq. No. 28) pursuant to CPLR 2304 and CPLR 3101(a)(4) to quash the subpoena served by plaintiff upon non-party witness Citibank N.A., or alternatively, pursuant to CPLR 3103(b) for a protective order limiting the scope of the subpoena.
The motion has been renumbered. It was originally numbered as mot. Seq. No. 23 (see infra at 3).
The motion has been renumbered. It was originally numbered as mot. Seq. No. 24 (see infra at 3).
The motion has been renumbered. It was originally numbered as mot. Seq. No. 25 (see infra at 3).
Papers Numbered
Notice of Motion (mot. Seq. No. 26) - Affidavits - Exhibits.....EF Doc. No. 4-#23
Answering Affidavits - Exhibits EF Doc. #72, #150-#155
Reply Affidavits EF Doc. #109-#124
Response to Plaintiff's Post-Deposition Demands EF Doc. #156
Notice of Motion (mot. Seq. No. 27) - Affidavits - Exhibits EF Doc. #26-#39
Answering Affidavits - Exhibits EF Doc. #95-#108
Reply Affidavits EF Doc. #40
Notice of Motion (mot. Seq. No. 28) - Affidavits - Exhibits EF Doc. #44-#52
Answering Affidavits - Exhibits EF Doc. #72-#94
Reply Affidavits EF Doc. #67-#71
Upon the foregoing papers it is ordered that the motions with Seq. Nos. 26, 27 and 28 are determined together as follows:
Plaintiff commenced this action on January 6, 2014, asserting various claims, including a cause of action against the Golfinopoulos defendants for breach of fiduciary duty. Plaintiff sought to set aside the judicial sale of certain real property held pursuant to the judgment of foreclosure and sale entered in the action entitled Eldridge Properties, Inc. v. Skarla , (Supreme Court, Queens County, Index No. 10936/2007), void the referee's deed to defendant Eldridge Properties, Inc. and the deeds from Eldridge Properties, Inc. to defendants NPSFT LLC and NPSFT 1 LLC, impose a constructive trust on the properties, recover damages, and for injunctive relief. Plaintiff alleged that due to the purported wrongful acts of defendants, she was unlawfully deprived of the properties, and equity therein, through foreclosure and sale in the foreclosure action.
Plaintiff previously moved for severance of her action as against the Golfinopoulos defendants inasmuch as the bankruptcy court modified the automatic stay, permitting plaintiff to prosecute the action against Golfinopoulos by an amended consent order. By prior order dated November 18, 2018 and entered on November 21, 2018, the motion was granted, and the causes of action still surviving and asserted against the Golfinopoulos defendants were severed without prejudice to plaintiff's rights and remedies as against the remaining defendants.
Following the submission of the instant motions, the parties, by stipulation dated June 11, 2020, stipulated and consented to the use of the New York State Courts Electronic Filing System (NYSCEF) in this matter, and in connection therewith, the action was assigned a new index number (i.e. Index No. 709967/2020). In addition, the motion papers were filed on the NYSCEF system, and new motion sequence numbers were assigned. However, as of the date of this order, the severance with respect to the Golfinopoulos defendants has not yet been effectuated (see infra at 12-13), and as a consequence, the Golfinopoulos defendants remain in this action. The court, therefore, shall entertain the instant motions notwithstanding they should have been made in the severed action after effectuation.
Motion seq. No. 26
With respect to the motion by plaintiff (mot. Seq. No. 26), pursuant to CPLR 3126 to preclude the Golfinopoulos defendants from introducing at trial, or by motion for summary judgment, evidence concerning certain documents, and strike the answer of the Golfinopoulos defendants with prejudice, plaintiff contends that the Golfinopoulos defendants have repeatedly failed or refused to comply with discovery orders and continue to ignore and evade the disclosure of information and documents material and relevant to the prosecution of the action.
Striking a pleading or prohibiting the introduction of evidence, pursuant to CPLR 3126, for failure to comply with disclosure is a drastic remedy, and is only appropriate where there is a clear showing that the failure to comply was willful, contumacious or in bad faith (see Teitelbaum v. Maimonides Med. Ctr. , 144 AD3d 1013 [2d Dept 2016] ; Cioffi v. S.M. Foods Inc. , 142 AD3d 520 [2016] ; Arpino v. F.J.F. & Sons Elec. Co., Inc. , 102 AD3d 2091 [2d Dept 2012]). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with discovery, coupled with inadequate explanations for those failures, or a failure to comply with discovery over an extended period of time (see Teitelbaum v. Maimonides Med. Ctr. , 144 AD3d 1013 ; Orgel v. Stewart Tit. Ins. Co. , 91 AD3d 922, 923 [2d Dept 2012] ). Here, plaintiff has failed to make such a showing. Plaintiff's submissions lack the existence of multiple court orders and are otherwise unpersuasive to support an inference that the Golfinopoulos defendants' alleged failures to fully comply with court orders, stipulations or discovery demands were willful, contumacious or in bad faith (see Jones v. LeFrance Leasing Ltd. Partnership , 110 AD3d 1032 [2d Dept 2013] ; Northfield Inc. Co. v. Model Towing & Recovery , 63 AD3d 808 [2d Dept 2009] ).
The Golfinopoulos defendants were deposed on May 1, 2019 and May 7, 2019 pursuant to order dated April 4, 2019. During the deposition, Kostas Golfinopoulos testified regarding the existence of various records and documents, and plaintiff made oral requests on the record for the production of those records and documents. Following the completion of the Golfinopoulos deposition, plaintiff, by letter dated June 26, 2019, served a copy of the transcripts covering both dates of the Golfinopoulos deposition, demanding the execution and return of the transcripts within 60 days. Plaintiff also made a formal written demand by a letter of the same date for the production of the documents and records as referenced by Kostas Golfinopoulos during the deposition.
The Golfinopoulos defendants produced some documents on June 10, 2019, which were responsive to plaintiff's demands from the first day of the deposition of Kostas Golfinopoulos, and to the extent plaintiff sought production of documents demanded in the letter dated June 26, 2019, she made this motion (mot. Seq. No. 26) one day prior to the expiration of the 60-day period set forth in CPLR 3116(a). In any event, the Golfinopoulos defendants served by mail, a response dated October 29, 2019, to plaintiff's post-deposition demand.
By letter dated October 30, 2019, plaintiff rejected certain portions of the response as improper or insufficient.
The response served on October 29, 2019 by the Golfinopoulos defendants includes copies of numerous records and documents (see response to items #42, #91, #92, #99. #103, #105, #137 and #196 ), and certain requested information (see response to item #271). With respect to other demands, the Golfinopoulos defendants responded that no records or documents exist (see response to item #47, #223-#224) and in relation to some other demanded items, they replied that they were still looking for the items, and would produce items when located (see response to item #97, #115, #116, #117, #119, #123, #220, #250, #280, and #290). In relation to yet other demands, the Golfinopoulos defendants objected to them, as unduly burdensome, overly broad, vague, ambiguous or duplicative, or calling for documents outside the scope of the action which are unlikely to lead to the discovery of admissible evidence and which are irrelevant to the action (see response to item #70, #151, #223, #224, #262, #264, #265, #273, #275, #277, and #279).
In plaintiff's written demand of June 26, 2019, plaintiff used page numbers of the Golfinopoulos transcripts to identify the items sought. The court has adopted this method as a means of identifying the items sought.
With respect to item #47, defendant Kostas Golfinopoulos had testified he would check his records for billing records made in connection with his representation of plaintiff during the foreclosure action. As for items #223-#224, he testified he "never issues any letters closing out any HELOC." Thus, to the extent the Golfinopoulos defendants have responded that no records exist with respect to items #47, and #223-#224, a party cannot be sanctioned or compelled to produce documents which do not exist (see CPLR 3120[1][I] ; Sagiv v. Gamache , 26 AD3d 368 [2d Dept 2006] ; Euro—Central Corp. v. Dalsimer, Inc. , 22 AD3d 793, 794 [2d Dept 2005] ).
Disclosure demands may be palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents demanded (see Asprou v. Hellenic Orthodox Community of Astoria , ––– AD3d ––––, 2020 WL 3816132 [2d Dept 2020] ; Kiernan v. Booth Mem. Med. Ctr. , 175 AD3d 1396, 1397-1398 [2d Dept 2019] ; Kayantas v. Restaurant Depot, LLC , 173 AD3d 718 [2d Dept 2019] ).
Item #70 is overly broad and vague, and item #151 is duplicative of items #92 and #99 (for which records have been produced by the Golfinopoulos defendants [see supra ] ) and also is overly broad. With respect to item #273, plaintiff called for the production of records, indicating defendant Kostas Golfinopoulos had been discharged as "his" attorney. It is unclear to whom plaintiff refers, but to the degree plaintiff refers to "Mr. Radulescu" (see item #271), item #273 is improper insofar as the item seeks wholly irrelevant information.
However, with respect to the responses to items #97, #115, #116, #117, #119, #123, #220, #250, #280 and #290, the Golfinopoulos defendants' response is incomplete. It has been nine months since the response was issued. The Golfinopoulos defendants shall comply with those discovery demands, whether previously exchanged or not, providing copies of any and all required documents and records within 30 days of the date of this order. If the documents and records were not found during the search for them, the Golfinopoulos defendants shall provide to plaintiff, within 30 days of the date of this order, an affidavit by someone with personal knowledge, describing the search and explaining why such items were not found.
Accordingly, the motion (mot. Seq. No. 26) by pursuant to CPLR 3126 to preclude defendants Kostas Golfinopoulos and Kostas Golfinopoulos PLLC (the Golfinopoulos defendants) from introducing at trial, or by motion for summary judgment, documentary evidence or testimony concerning certain documents not produced during discovery, and strike the answer of the Golfinopoulos defendants with prejudice is granted only to the extent of directing the Golfinopoulos defendants to produce those documents and records demanded in items #97, #115, #116, #117, #119, #123, #220, #250, #280 and #290 within 30 days of the date of this order, and if such documents or records of those items are not in their possession, they shall provide to plaintiff, within 30 days of the date of this order, an affidavit by someone with personal knowledge, describing the search and explaining why such items were not found.
Motion seq. No. 27
With respect to the motion by the Golfinopoulos defendants (mot. Seq. No. 27) to preclude the admission of all documents and testimony given by non-party witness Frances Eldridge, in response to plaintiff's subpoena, including the deposition transcript of Eldridge's testimony, plaintiff's counsel prepared a subpoena ad testificandum and subpoena duces tecum dated May 9, 2019 and addressed them to Frances Eldridge, without reference to her capacity as an officer (or director) of defendant Eldridge Properties, Inc., and thus, it was directed to her solely in her individual capacity as a nonparty. The subpoenas required production of documents and attendance at a deposition set to be held on June 4, 2019. Plaintiff caused Eldridge to be personally served with the subpoenas by in-hand delivery on May 16, 2019.
Frances Eldridge is not a named defendant in the action. Plaintiff claims that Frances Eldridge is a material witness insofar as she authorized all of the dealings by the Golfinopoulos defendants in the name of defendant Eldridge Properties, Inc., and executed a deed dated July 15, 2011 as president of that corporation.
Eldridge failed to respond to the subpoenas as of June 4, 2019, but subsequently appeared at the law offices of plaintiff's counsel on July 31, 2019, and acknowledged receipt of the subpoenas and agreed to appear on August 14, 2019 for a deposition. On August 9, 2019, plaintiff's attorney sent an email to counsel for the Golfinopoulos defendants with an attached notice, indicating the adjournment of the Eldridge deposition to August 14, 2019, and sent another email on August 13, 2019, indicating a change of location for the adjourned deposition. Counsel for the Golfinopoulos defendants did not respond to either email.
On August 14, 2019, plaintiff's attorney appeared at the time and location set for the deposition of Frances Eldridge and noted on the record that the witness had been served with the subpoenas, and knew of the scheduled deposition. Plaintiff's attorney also noted the witness had been ill that morning, and requested an adjournment of the deposition until August 15, 2019 at 1:00 PM. Plaintiff's attorney further noted the request had been granted, and stated on the record she would notify opposing counsel, who was not in attendance, and email the attorneys for the Golfinopoulos defendants that the deposition was adjourned until August 15, 2019 at 1:00 PM.
At 1:06 PM, on August 15, 2019, only Frances Eldridge and plaintiff's attorney appeared for the deposition. Plaintiff took the deposition of Eldridge, who testified without the benefit of an attorney. Later that afternoon, at 3:37 PM, counsel for the Golfinopoulos defendants emailed plaintiff's attorney seeking an adjournment of the deposition, on the ground of insufficient notice for the (adjourned) deposition. Plaintiff's attorney responded by email the same day that the Golfinopoulos defendants had been served with the "subpoena," and notified of the adjourned date "last week" and reminded on "Tuesday" (August 13, 2019).
The Golfinopoulos defendants assert plaintiff has a history of unlawful discovery practice, and that in this instance, the deposition of Eldridge was not conducted in conformity with CPLR 3107, which requires an oral deposition to be scheduled on not less than 20 days notice, unless the court orders otherwise. The Golfinopoulos defendants contend that plaintiff gave them only five days notice of the adjourned date of the deposition of Eldridge (i.e. from August 9, 2019 to August 14, 2019). In addition, the Golfinopoulos defendants assert that during the deposition, plaintiff improperly asked questions of Eldridge concerning communications that Eldridge had with her (Eldridge's) attorneys, Herbert Steinberg, Esq. and Preston Leschins, Esq. The Golfinopoulos defendants also assert that plaintiff should be sanctioned.
Frances Eldridge testified that Steinberg is the bankruptcy attorney for Eldridge Properties, Inc., (as debtor in the Chapter 7 bankruptcy case).
Frances Eldridge testified that Preston Leschins formerly represented her, but it is unclear from her testimony when he did so, and in relation to what matter.
Plaintiff contends that she has not engaged in willful, deliberate or contumacious conduct. According to plaintiff, the Golfinopoulos defendants were served in May 2019 with notice of the deposition, and sufficient notice of the (first) adjourned date of August 14, 2019. Plaintiff also contends that notwithstanding the deposition was conducted in their absence, the Golfinopoulos defendants have failed to show they have suffered prejudice to a substantial right, warranting the sanction of preclusion of the transcript for the purposes of summary judgment or trial.
CPLR 3107 provides that a party desiring to take a deposition of a person upon oral examination shall give to each party 20 days' notice, unless the court orders otherwise. The Golfinopoulos defendants do not dispute that they received concurrent service of the subpoenas upon them in May 2019 (see CPLR 3120[3] ), and make no claim that the subpoena duces tecum was improper insofar as it provided for less than 20 days notice for the production of documents and records (see CPLR 3120[2] ).
To the extent the Golfinopoulos defendants claim they were entitled pursuant to CPLR 3107 to 20 days notice relative to any adjourned date, the subpoenas served upon Eldridge specifically directed that the witness appear at any recessed or adjourned date of the deposition (see CPLR 2305[a] ). Under CPLR 2305(a), a subpoena containing a reservation for any recessed or adjourned date is enforceable without the necessity of further process if the witness has "reasonable notice" of such adjourned date (see CPLR 2305[a] ; Maritime Fish Prods. v. World-Wide Fish Prods. , 100 AD2d 81, 90 [1st Dept 1984], appeal dismissed 63 NY2d 675 [1984] ). As to what constitutes "reasonable notice," CPLR 2305(a) is silent. Obviously, what is reasonable notice to a witness varies with the circumstances of the case. In essence, a witness is entitled to fair notice so that the witness can prepare to appear at a given date, time and place for his or her deposition, which conceivably may be less than 20-days notice. And yet, the Golfinopoulos defendants would have the court ignore the "reasonable" notification to the witness of the adjournment called for in CPLR 2305(a) and impose, in all instances involving notice to a party, 20 days notice of any adjourned date. This "20-days notice" minimum for a party would be at variance with CPLR 3113(b), which provides that a deposition be taken continuously and "without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree." CPLR 3113(b) does not define "unreasonable adjournment" or set a minimum number of days for any adjournment. The court, therefore, rejects the Golfinopoulos defendants' argument that they were entitled to no less than 20 days notice of the adjournment of the deposition of Frances Eldridge, and thus, plaintiff was in violation of CPLR 3017 when she gave them 5-days notice of the August 14, 2019 adjourned date.
Furthermore, the court finds that the Golfinopoulos defendants were given reasonable notice of the adjourned date by email dated August 9, 2019, and yet failed to object to it on any grounds, until after the August 14, 2019 adjournment date passed. Notwithstanding that counsel for the Golfinopoulos defendants was preparing for his vacation beginning on August 10, 2010 when he received the email, the Golfinopoulos defendants offer no explanation as to the reason another attorney in the law firm could not have timely responded to plaintiff's email. Moreover, because the Golfinopoulos defendants were not present on August 14, 2019 for the deposition, they were not entitled to any additional notification as to the deposition's being put over to the next day (see CPLR 3113[b] ), and hence were not prejudiced by the failure by plaintiff's attorney to notify them of such adjournment by email on August 14, 2019.
To the extent the Golfinopoulos defendants contend the deposition was improper because plaintiff asked questions concerning communications between Frances Eldridge and her attorneys, Frances Eldridge is not a named defendant, and during her deposition, she did not assert the attorney-client privilege on her own behalf, or on behalf of defendant Eldridge Properties, Inc. (see Wells Fargo Bank, N.A. v. Confino , 175 AD3d 533 [2d Dept 2019] ). Instead, she freely answered plaintiff's questions, and in numerous instances, avoided them, by suggesting the same questions be posed to her attorneys. Insofar as attorney-client privilege belongs to the client (see People v. Osorio , 75 NY2d 80, 84 [1989] ), is intended to protect the client (see Tartakoff v. New York State Educ. Dept. , 130 AD3d 1331 [3d Dept 2015] ), and may be waived by the client, plaintiff did not act improperly in asking Eldridge questions regarding her communications with her lawyers. Additionally, the Golfinopoulos defendants have failed to demonstrate they have suffered prejudice to a substantial right by virtue of the deposition being conducted in their absence (see Matter of Jones , 47 AD3d 931 [2d Dept 2008] ). The Golfinopoulos defendants have failed to show that plaintiff has engaged in willful and contumacious conduct warranting preclusion of the transcript for the purposes of summary judgment or trial. Accordingly, that branch of the motion by the Golfinopoulos defendants pursuant to CPLR 3126 to preclude the admission of the deposition transcript of Eldridge's testimony for the purposes of summary judgment or trial is denied.
Frances Eldridge indicated at the deposition that she did not have "the documents" sought in the subpoena duces tecum with her, and no evidence has been presented to show that she supplied any documents to plaintiff in response to either subpoena. That branch of the motion by the Golfinopoulos defendants pursuant to CPLR 3126 to preclude the admission of documents produced by Frances Eldridge documents in response to the subpoenas is denied as moot.
That branch of the motion by the Golfinopoulos defendants for an award of sanctions against plaintiff pursuant to 22 NYCRR 130-1.1, in an amount equal to the costs, including attorneys' fees, incurred in connection with the motion is denied.
Motion seq. No. 28
With respect to the motion by the Golfinopoulos defendants (mot. Seq. No. 28) pursuant to CPLR 2304 and CPLR 3101(a)(4) to quash the subpoena duces tecum dated October 18, 2019 served by plaintiff upon nonparty Citibank N.A., the subpoena calls for production of copies of: (1) all bank books and records, with respect to all deposits, withdrawals, checks or wires, together with any authorizations for the deposits, withdrawals, checks or wires related to accounts maintained under "the business or attorney law firm name of Kostas Golfinopoulos, Esq., or Kostas Golfinopoulos, Esq., PLLC," for the period of time from "October 1, 2006 through August 31, 2013"; and (2) records for the attorney account or accounts of Kostas Golfinopoulos, Esq., and Kostas Golfinopoulos, Esq., PLLC, with a certain sender ABA routing number, including but not limited to documents, records and information for the "checking deposits ($215,000 on 3-22-2013; $43,000 on 3-22-2013; and $24,000 on 3-22-2013) and wire transactions ($280,000 on 3-25-2013; $25,000 on 10-26-2012; $54,500 on 3-27-2013; $15,500 on 3-27-2013) annexed hereto and made part hereof" for the monies deposited into the account or accounts and disbursed therefrom.
The Golfinopoulos defendants contend the Citibank subpoena should be quashed because it is insufficiently specific and overly broad, and improperly seeks disclosure of privileged material. The Golfinopoulos defendants also contend the subpoena should be quashed as moot or duplicative of records already produced by them. In response to receiving a copy of the subpoena, they provided plaintiff with four years of redacted bank statements regarding their escrow accounts at Citibank.
In opposition, plaintiff asserts that the subpoena seeks records from Citibank for the IOLA account for the period during which Kostas Golfinopoulos represented her, and that to the extent the Golfinopoulos defendants have produced certain records, those documents are deficient to respond to the Citibank subpoena.
Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty where the matter sought is material and necessary to the prosecution or defense of an action (see Matter of Kapon v. Koch , 23 NY3d 32, 36 [2014] ; Hudson City Sav. Bank v. 59 Sands Point, LLC , 153 AD3d 611, 612 [2d Dept 2017] ). "A party seeking discovery from a nonparty must apprise the nonparty of the circumstances or reasons requiring disclosure (see CPLR 3101[a][4] ; Matter of Kapon v. Koch , 23 NY3d at 39 ; DiBuono v. Abbey, LLC , 163 AD3d 524, 525 [2d Dept 2018] ; Hudson City Sav. Bank v. 59 Sands Point, LLC , 153 AD3d at 612 )" ( Gandham v. Gandham , 170 AD3d 964, 966 [2d Dept 2019] ). "A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious’ " ( Hudson City Sav. Bank v. 59 Sands Point, LLC , 153 AD3d 611, 612—613, quoting Matter of Kapon v. Koch , 23 NY3d 32, 34 [internal quotation marks omitted]; see Anheuser—Busch, Inc. v. Abrams , 71 NY2d 327, 331—332 ). "Should the [movant] meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of [the] action" ( Matter of Kapon v. Koch , 23 NY3d at 34 [internal quotation marks omitted] ). "The words ‘material and necessary’ as used in [CPLR] 3101 must ‘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’ " ( Matter of Kapon v. Koch , 23 NY3d at 38, quoting Allen v. Crowell—Collier Publ. Co. , 21 NY2d 403, 406 [1972] ; see DiBuono v. Abbey, LLC , 163 AD3d at 525.
The subpoena states that the circumstances or reasons requiring disclosure from Citibank are that records, documents or information were previously requested from:
"Kostas Golfinopoulos, Esqs. [sic], Kostas Golfinopoulos, Esq., PLLC [sic] Leslie S. Nizin, Esq. at a deposition held on May 1, 2019 and May 7, 2019 concerning the above-entitled action, who to date has [sic] not produced the documents. [The Citibank] records and information are relevant and material in the prosecution of this action involving the use and sources of monies deposited into and withdrawn from the above identified attorney escrow account with the above identified Account information or such other attorney escrow account for the monies deposited in the name of Kostas Golfinopoulos, Esqs., [sic] Kostas Golfinopoulos, Esq., PLLC per the attached checks and wire transactions annexed hereto and made part hereof."
Despite this explanation on the face of the subpoena, and the attachment of certain checks and wire transactions thereto, the subpoena is defective since it is not limited in scope to the referenced deposits and transactions, but rather calls for all bank books and records, with respect to all deposits, withdrawals, checks or wires, together with any authorizations for the deposits, withdrawals, checks or wires related to IOLA accounts maintained by the Golfinopoulos defendants for the period October 1, 2006 through August 31, 2013. As such, it is insufficient to permit Citibank to discern which IOLA records for the period from October 1, 2006 through August 31, 2013 are responsive as related to the litigation and which are not.
Moreover, to the extent the subpoena seeks the Golfinopoulos's IOLA bank records for the period from October 1, 2006 through August 31, 2013 which relate to clients other than plaintiff, the Golfinopoulos defendants have met their initial burden of establishing such disclosure request is palpably improper insofar as it seeks utterly irrelevant information of a confidential and private nature (see Zimmer v. Cathedral School of St. Mary & St. Paul , 204 AD2d 538 [2d Dept 1994] ). In opposition, plaintiff has failed to establish that the requested disclosure is material and necessary to the prosecution of those causes of action asserted against the Golfinopoulos defendants.
The motion by the Golfinopoulos defendants to quash the subpoena is granted.
Lastly, insofar as severance has been previously granted, but not effectuated, it is hereby ORDERED that the caption for this action shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
QUEENS COUNTY
X
HELEN SKARLA,
Plaintiff
Index No. 709967/2020
against
NPSFT LLC, NPSET1 LLC, and
ELDRIDGE PROPERTIES, INC.,
Defendants
X.
The new action shall have the following caption:
SUPREME COURT OF THE STATE OF NEW YORK
QUEENS COUNTY
X
HELEN SKARLA,
Plaintiff
Index No. (To be assigned)
against
KOSTAS GOLFINOPOULOS, ESQ., and
KOSTAS GOLFINOPOULOS, ESQ., PLLC,
Defendants
X.
Upon being served with a copy of this order and receiving payment of all applicable fees, the County Clerk shall assign a new Index number to the action to be entitled Skarla v. Golfinopoulos . Plaintiff is directed to serve, within 20 days of the date of this order, a copy of this order with notice of entry upon all parties to this action and serve and file a request for judicial intervention in the new action with a request that the matter be assigned to Part 2.