Opinion
Index No. 717443/2017 Motion Seq. No. 6
03-05-2021
STAR AUTO SALES OF QUEENS LLC D/B/A STAR SUBARU Plaintiff(s). v. DOUGLAS FILARDO and SUBARU MOTORSPORTS D/B/A MOTORSPORTS ADVERTISING, Defendant(s).
Unpublished Opinion
Motion Dated: September 8, 2020
Present: HONORABLE MARGUERITE A. GRAYS Justice
MARGUERITE A. GRAYS J.S.C.
The following papers numbered EF120-EF126, EF128-EF147, EF148-EF156 and EF15 8-EF162 on this motion by plaintiffs for an Order: (1) pursuant to CPLR §2304, quashing three non-party subpoenas duces tecum served by defendants, and (2) pursuant to CPLR §3101(4), for a protective order prohibiting disclosure of the information and documents sought in the subpoenas; and on this cross-motion by defendants for an Order: (1) pursuant to CPLR §2304, quashing the subpoenas duces tecum served by plaintiff on defendants' Chase Bank account and American Express credit card account, and (ii) pursuant to CPLR §3103, granting a protective order prohibiting disclosure of the documents and information sought in the subpoenas.
| PAPERS NUMBERED | |
| Notice of Motion - Affs - Exhs......................... | E120-E126 |
| Notice of Cross- Motion - Affs- Exhs.................. | E128-E147 |
| Aff in Opp to Cross- motion - Affs - Exhs............ | E148-E156 |
| Reply Aff - Exhs.......................................... | E158-E162 |
Upon the foregoing papers, it is ordered that this motion by plaintiff and cross-motion by defendants are granted.
In this action, plaintiff seeks to recover damages resulting from the alleged illegal and improper conduct of former sales manager defendant Douglas Filardo (Filardo) during Filardo's employment with plaintiff, wherein Filardo is alleged, inter alia, to have embezzled funds.
On June 19, 2020, defendants served a subpoena deuces tecum on Gregory W. Fox, Esq. of Marshall, Denehy, Warner, Coleman &Goggins seeking the "entire file", including pleadings, motions, court orders, discovery requests, discovery responses, documents produced, deposition transcripts with exhibits and non-privileged communications, with regard to litigation involving that firm in an action pending in the Eastern District of New Y ork entitled Star Auto Sales of Bayside, Inc. (d/b/a Star Toyota of Bayside), et al., v. Voynow, Bayard, Whyte and Company, LLP, et al. (index number 1:18-CV-05775). On June 30,2020, defendants served a subpoena seeking the same type of information on Daniel Tessier, Esq. counsel for a party involved in litigation pending in Supreme Court, Nassau County, in the action entitled Star Auto Sales of Bayside Inc, et al., v. Despina Theocharis (index number 613475/2017), and on Raymond C. Baierlein, Esq., counsel for a party in a matter pending in Queens Supreme Court in the action entitled Star Auto Sales of Bayside Inc., et al., v. Michael Karouzakis, (index number 718804/2018), also seeking the "entire file" in relation to that litigation. The actions are cases in which plaintiff was one of a number of other corporate plaintiffs and involve allegations of fraud made by several automotive dealerships, including plaintiff, against other employees.
Plaintiff asserts in the instant motion that all three subpoenas should be quashed on the grounds that the information sought is irrelevant to the instant action, that the requests are overboard, and that the nonparty subpoenas each lack the requisite notice under CPLR §3101(a)(4). A review of the three subpoenas shows that they are each bereft of language that sufficiently states "the circumstances and reasons" for which such disclosure is required (See, Matter of Kapon v Koch, 23 N.Y.3d 32 [2014]). Such language must be set forth on the face of the document or with an accompanying notice (Matter of Kapon v Koch, supra). This "minimal obligation" is the standard that must be met before any further analysis is required (Ferolito v Arizona Beverages, USA,119 A.D.3d 642 [2014]; Bianchi v. Galster Mgt. Corp.,131 A.D.3d 558 [2015]; Reda v Port Authority of N.Y. and N.J., 188 A.D.3d 1278 [2020]). The purpose of the rule is to ensure that the entity receiving the subpoena, which is a stranger to the action, understands why it is receiving the subpoena and what is being asked of it so that it can decide how to respond (Velez v. Hunts Point Multi-Service Center, 29 A.D.3d 104, 110 [2006]). Here, plaintiff objects to the subpoena on such grounds, and the objection has not been waived (Velez v. Hunts Point Multi-Service Center, supra). A subpoena is facially defective when it fails to provide sufficient explanation of the circumstances or reasons requiring disclosure either on its face or in any accompanying material (Capacity Group of NY v Duni, 186 A.D.3d 1482 [2020]).
Notwithstanding the foregoing, from their very wording, in seeking the "entire file" related to certain litigation, the subpoenas are defective in that they are overly broad. Plaintiffs correctly argue that much of the information sought is publicly available. While defendants argue that, in a series of emails, they agreed to limit the scope of the demand, no amended subpoenas were served, and plaintiff still maintains its objection on the grounds of over breadth. The limitations suggested in the defendants' counsels' emails themselves serve as tacit recognition of the overboard nature of the requests. The objectionable nature of overbroad discovery requests also applies to subpoenas (Bour v 254 Bleeker LLC, 104 A.D.3d 454 [2013]; Rodriguez v Crescent Contracting Corp., 305 A.D.2d 215 [2003]). Here, it is noted that not all of the information sought in the subpoenas can be said to be 'utterly irrelevant,' (see Kapon v Koch, supra), however, when a request is overly broad or seeks irrelevant information, the remedy is for the Court to vacate the entire demand rather than to prune it (Matter of Cheryl LaBella Hoppenstein 2005 Trust, 186 A.D.3d 1230 [2020] as cited by Arch Specialty Insurance Co. v HDI Gerling America Ins. Co., 70 Misc.3d 1210(A), [Sup. Ct, NY Co., Jan. 21, 2021]). While the court does not rule out that defendants may yet craft a proper subpoena, the task to do so is that of defendants and not the court. Accordingly, the branch of plaintiffs motion to quash the three subpoenas served on plaintiff is granted, as is the branch of motion for a protective order pursuant to CPLR §3103.
The cross-motion to quash plaintiff's nonparty subpoenas for Filardo's Chase Bank account and American Express credit card account is granted. On May 27, 2020, this Court issued an Order vacating Plaintiffs First Request for Production of Documents on grounds that nearly identical discovery requests were overly broad and lacked specificity. Subpoenas are not to be used as a discovery tool (Capacity Group of NY, LLC v Duni, supra', Law Firm of Ravi Batra PC v Rabinowich, 77 A.D.3d 532 [2010]). Here, plaintiff s justification for the requests, to wit: that they "may show" that Filardo was living beyond his means, or that the records "may show" that Filardo deposited more money in his account that he was earning at Star Subaru, is plainly and impermissibly hypothetical and tantamount to the proverbial 'fishing expedition" (See Oak Beach Inn Corp., v Town of Babylon, 239 A.D.2d 568 [1997]; Law Firm of Ravi Batra PC v Rabinowich, supra). Rather, subpoenas should be employed only for the production of specific documents that are relevant to the material facts at issue (Matter of Terry D., 81 N.Y.2d 1042 [1993]). Accordingly, the cross- motion to quash the two subpoenas and for a protective order, is granted.