Parts Auth., Inc. v Eagle Serv. Sta., Inc.
Annotate this CaseDecided on November 29, 2005
Civil Court of the City of New York, Queens County
Parts Authority, Inc., Plaintiff(s),
against
Eagle Service Station, Inc. and MOHAMMAD SALEEM, Defendant(s).
41547/04
Diccia T. Pineda-Kirwan, J.
Upon the foregoing cited papers, and after conference, it is ordered that this application for an order, pursuant to CPLR 5240, denying the use of a post judgment discovery, i.e. quashing a subpoena, which seeks testimony and the production of documents against non-party Khagendra Gharti-Chhetry, Esq, is granted.
According to the subpoena, on April 21, 2004, plaintiff in the underlying breach of contract action obtained a judgment against the corporate defendant Eagle Service Station, Inc. in the amount of $3,200.98. The subpoena states that on September 22, 2005, Mr. Gharti-Chhetry is to appear for the taking of a deposition under oath, is to give testimony "on all matters relevant to the satisfaction of such judgment" and it further states that he is to bring with him the following: All documents, records, correspondence in connection with transactions between Eagle Service Station, Inc., Mohammad Saleem and Friend Realty and/or All Nations Auto ... relevant to the satisfaction of the judgment.
Movant Khagendra Gharti-Chhetry, Esq is an attorney who is not a party to the underlying action and who now seeks an order quashing the subpoena served on him as violative of CPLR article 31 as plaintiff is not entitled to this form of discovery from him. A post judgment subpoena, however, is governed in large measure by CPLR article 52, not CPLR article 31, and, as such, not all of his arguments apply to this type of post judgment subpoena. Regardless, the subpoena at issue must still comply with all relevant statutes. [*2]
Plaintiff/judgment creditor is in the business of selling auto parts. The corporate defendant purchased auto parts from plaintiff and the individual defendant personally guaranteed those purchases.
Movant argues that the subpoena should be quashed as it is jurisdictionally defective as it was served without adequate notice, as it does not explain why the requested deposition of a non-party is necessary, and as it is issued against an attorney who never represented defendants. Movant seeks sanctions against plaintiff's attorney for frivolous conduct in the issuance of the subpoena.
According to Mr. Gharti-Chhetry's affidavit, he received the subpoena on September 12, 2005, not on September 7, 2005, as claimed by judgment creditor. Movant argues that he was not provided the requisite twenty day notice as required by CPLR 3106. Inasmuch as a post judgment subpoena, unlike a trial subpoena, is to be served not less then ten days of the date for the appearance, service was timely. (CPLR 5224[c].)
Movant's affidavit in support of the application asserts the following facts: (1) movant has no relation to the defendants as he never represented them or appeared on their behalf, (2) one of movant's clients, Friend Realty L.L.C., had been the corporate defendant/judgment debtor's landlord for a premises leased by the corporate defendant for use as an auto repair shop, and (3) the judgment debtor vacated the premises prior to the expiration of the lease and while owing Friend Realty L.L.C. rental arrears. Movant further states that his only connection to the underlying action occurred when Friend Realty L.L.C. was in the process of re-letting the premises to a new tenant. Movant avers that he was instructed by his client to contact plaintiff's attorney to offer a settlement, notwithstanding that his client was not a defendant in the action, in order to prevent any impediment to the issuance of a license or permit to a new tenant by the New York State Department of Motor Vehicles. Movant states that on his client's behalf, not defendant's, he offered a sum of money to settle the action but that the offer was rejected.
Judgment creditor's attorney's affirmation, submitted in opposition to the motion, argues that the post judgment subpoena was proper. He asserts that when he first spoke to movant, he was not sure which party movant represented. He states that he and Mr. Gharti-Chhetry then entered into negotiations but that his client rejected the offer put forth by movant and a judgment was entered against the corporate defendant. Judgment creditor's attorney further argues that even if movant was an attorney for the landlord, he acted as an agent for the judgment creditor in the negotiations and thus is properly the subject of the subpoena.
It is noted that both attorneys include hearsay statements in their affidavit and affirmation, which statements have not been considered.
Prior to the satisfaction of a judgment, a judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment. (CPLR 5223; Longwood Assocs v AJ Apparel, Inc, 249 AD2d 453 [2d Dept 1998].) This standard provides the judgment creditor with a wide range of inquiry through either the judgment debtor or any third person with knowledge of [*3]the debtor's property. (See ICD Group v Israel Foreign Trade Co (USA), 224 AD2d 293 [2d Dept 1996].) This disclosure, however, does have its limits and a court has broad discretionary power to control and regulate enforcement procedures in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. (See CPLR 5240; Guardian Loan Co v Early, 47 NY2d 515 [1979]; Paz v Long Island RR, 241 AD2d 486 [2d Dept 1997].) Where an attorney is involved as an agent or negotiator in a commercial venture which gives rise to litigation, that attorney may properly be deposed regarding his knowledge of factual issues concerning the underlying transaction. (See American Reliance Ins Co v National General Ins Co, 149 AD2d 554 [2d Dept 1989].)
In this enforcement proceeding the facts of the underlying action are not at issue and it is also undisputed that Mr. Gharti-Chhetry's involvement occurred after the breach of contract. Significantly, the subpoena does not seek information from the movant regarding his actions as the judgment debtor's agent for the purpose of negotiating a settlement. The subpoena does seek testimony and documents regarding the relationship between movant's client, Friend Realty L.L.C., and the judgment debtor. Such disclosure regarding Mr. Gharti-Chhetry and his relationship with his client Friend Realty L.L.C., would likely be privileged and involve attorney work product. Moreover, the information would be duplicative of information sought from a direct source, i.e. defendants/judgment debtor or Friend Realty L.L.C. (See American Reliance Ins Co v National Gen Ins Co, 174 AD2d 591 [2d Dept 1991]; Acwoo Intl Steel Corp v Frenkel & Co, 165 AD2d 752 [1st Dept 1990].) Most importantly, there is nothing contained in the subpoena or in the opposition papers which indicates that Mr. Gharti-Chhetry's testimony would provide any information regarding the judgment debtor's assets such that it would aid the judgment creditor in satisfying the judgment.
Accordingly, notwithstanding the expansive standard for post judgment disclosure, the use of a disclosure device against Mr. Gharti-Chhetry is nevertheless denied and the subpoena is quashed on the basis that the subpoena is improper, overly broad and if allowed, would cause unreasonable annoyance.
The request for sanctions is denied.
This constitutes the decision and order of the Court.
Dated:November 29, 2005___________________________
DICCIA T. PINEDA-KIRWAN
Judge, Civil Court
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