Denver Employees Retirement Plan v JPMorgan Chase Bank, N.A.

Denver Employees Retirement Plan v JPMorgan Chase Bank, N.A. 2012 NY Slip Op 00639 Decided on January 31, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2012
Andrias, J.P., Saxe, Sweeny, Acosta, JJ. 6287N-
650320/10 6287NA

[*1]Denver Employees Retirement Plan, Plaintiff-Respondent,

v

JPMorgan Chase Bank, N.A., Defendant-Appellant.




Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York
(Jonathan H. Hurwitz of counsel), for appellant.
Grant & Eisenhofer P.A., Wilmington, DE (Megan D.
McIntyre of the bar of the State of Delaware, admitted pro hac vice, of
counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 1, 2011, which denied defendant's request to compel plaintiff to produce certain documents, unanimously affirmed, without costs. Order, same court, Justice, and date, which refused to give effect to one of defendant's deposition notices, unanimously affirmed, without costs.

The motion court providently exercised its discretion by refusing to compel plaintiff to respond to an untimely document request for "All Documents Concerning investments by or for the benefit of [plaintiff], direct or indirect, in securities issued by Lehman" (see Kingsgate Assoc. v Advest, Inc., 208 AD2d 356, 357 [1994]). The circumstances presented herein do not warrant exercise of our own independent discretion to reverse this order.

Likewise, we find no reason to disturb the exercise of the court's "broad discretion" in denying defendant's deposition notice (see Brooklyn Union Gas Co. v American Home Assurance Co., 23 AD3d 190, 190 [2007]). This notice called for the production of "a person designated by [plaintiff] regarding any and all investments in securities issued or guaranteed by Lehman . . . that were purchased, held, and/or sold by or for the benefit of [plaintiff] from January 1, 2007 to September 30, 2008, excluding investments made through the JPMorgan Securities Lending Program," i.e., the program at issue in this litigation. Defendant essentially attempted to obtain the same material that the court previously found to be untimely and irrelevant. Plaintiff's litigation concerns investments with defendant in Lehman medium term notes (MTNs). Defendant seeks information about plaintiff's investments in other Lehman securities that plaintiff made at different times and that are unrelated to the MTNs. The court correctly determined that investment decisions concerning other, unrelated investments [*2]purchased for different accounts that have different investment goals, are not relevant to the account in question (cf. Matter of Clark, 257 NY 132, 135 [1931]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2012

CLERK