Stern v. Carlin Communications, Inc.

Full title: HOWARD STERN, Appellant, v. CARLIN COMMUNICATIONS, INC., et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 13, 1994

210 A.D.2d 110 (N.Y. App. Div. 1994)

620 N.Y.S.2d 344

Opinion

December 13, 1994

Appeal from the Supreme Court, New York County (Helen Freedman, J.).

The IAS Court did not abuse its discretion to control and regulate enforcement procedures under CPLR article 52 (see, Guardian Loan Co. v Early, 47 N.Y.2d 515, 519), in quashing the subject subpoena, relegating plaintiff instead to the pretrial disclosure devices available to him in a related pending action to set aside fraudulent conveyances. The subpoena went beyond its proper role of seeking information concerning defendant corporations' assets by demanding "[a]ll cancelled checks and other checking account records" of certain non-party corporations, claimed to be closely related to defendants, regardless of whether such checks and records involved defendants' assets or wholly unrelated funds. While disclosure in post-judgment enforcement proceedings may be favored over pretrial disclosure in a fraudulent conveyance action where the enforcement proceedings involve assets not put in issue in the fraudulent conveyance action (see, Exceptional Opts. v Optimus, Inc., 84 A.D.2d 515, 516), here, the opposite is the case, the action putting in issue all of the assets controlled by all of the corporations controlled by the individual said to be their alter ego, such that there is nothing in issue in the enforcement proceedings that is not also in issue in the plenary action.

Concur — Ellerin, J.P., Kupferman, Rubin and Nardelli, JJ.