Heinze v Mnuchin

[*1] Heinze v Mnuchin 2009 NY Slip Op 50711(U) [23 Misc 3d 1111(A)] Decided on April 16, 2009 Civil Court Of The City Of New York, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2009
Civil Court of the City of New York, New York County

James E. Heinze, Plaintiff,

against

Robert E. Mnuchin and ADRIAN G. MNUCHIN, his wife, a/k/a ADRIANA MNUCHIN, Defendants.



104 TS 08



For plaintiff self-represented:

James E. Heinze, plaintiff pro se.

For defendants:

Kenneth S. Ross, Esq.

McGivney & Kluger, P.C.

80 Broad Street, 23rd Fl.

New York, NY 10004

212-509-3456

Barbara Jaffe, J.

By notice of motion dated February 12, 2009, plaintiff moves for orders compelling defendants to comply with various discovery orders and demands, granting him leave to add a defendant and amend his pleading or serve a supplementary pleading, and imposing sanctions. By notice of motion dated February 25, 2009, plaintiff moves for orders compelling answers to deposition questions, granting him leave to add a defendant and amend his pleading or serve a supplementary pleading, and imposing sanctions. Defendants oppose both motions.

I. BACKGROUND

Plaintiff began working in 1999 for defendants, owners of a Manhattan art gallery, who provided him with living quarters in the gallery basement. He alleges that due to toxic conditions in the basement, he became ill from various respiratory conditions which necessitated his move to other premises in September 2004. Plaintiff commenced this personal injury action in Supreme Court in or about November 2004.

In August 2005, defendants responded to plaintiff's demand for a verified bill of particulars as to their affirmative defenses and produced numerous documents, including a cover letter and all three pages of a May 4, 2004 email between defendants' representative, Claire [*2]Conway, and an employee of Shaw Environmental and Infrastructure, Inc. (Shaw) as well as Shaw's proposed services agreement, two pages of Shaw's May 21, 2004 report to Conway, email correspondence dated October 27, 2004 between Conway and Chubb Insurance Company (Chubb) regarding defendants' property damage claim, submitted "for record purposes only," relating to Shaw's report, and documents from New York City's Department of Housing Preservation and Development and Department of Health and Mental Hygiene relating to the presence of mold at the premises in issue. (Affirmation of Kenneth S. Ross, Esq., dated Feb. 19, 2009 [Ross Aff.], Exh. A).

In a preliminary conference order dated October 20, 2005, Supreme Court ordered, in pertinent part, that defendants provide plaintiff with authorization for him to obtain his employment records for three years prior to March 2004. (Affidavit of James E. Heinze, dated Feb. 12, 2009 [Heinze Feb. 12 Affid.], Exh. C).

In a compliance order dated March 16, 2006, the court ordered the parties' depositions to be taken before April 18, 2006 and directed that plaintiff file a note of issue by May 10, 2006. No depositions were taken.

In response to plaintiff's subpoena of May 8, 2006 seeking numerous documents relating to the premises at issue and Shaw's relationship to defendants, including all correspondence and agreements between Shaw and defendants, Sharon Tanski, senior attorney for Shaw, produced all such records in Shaw's possession. (Ross Aff., Exh. I).

In a compliance order dated August 17, 2006, Supreme Court ordered that depositions be taken by September 30, 2006, with the note of issue to be filed, finally, by October 31, 2006.

In a compliance order dated October 19, 2006, Supreme Court ordered that defendants' and Claire Conway's depositions conclude by November 17, 2006 and that defendants provide plaintiff with, among other items, a complete copy of Shaw's May 21, 2004 report, with the note of issue to be filed, again finally, by December 14, 2006.

By compliance order dated December 14, 2006, Supreme Court ordered defendants to provide plaintiff with three pages of Shaw's May 4, 2004 email, nine pages of Shaw's May 21, 2004 report, pages two and three of Shaw's Job Initiation form dated May 25, 2004, cancelled checks payable to Envirospect, Inc., all of defendants' Chubb claims, including those relating to mold, and all of Chubb's claim numbers. (Heinze Feb. 12 Affid., Exh. D). The court set January 18, 2007 as the final date for the conclusion of defendants' and Claire Conway's depositions. Although it extended the deadline for the note of issue to January 31, 2007, it specified that no further status conferences would be held.

By order to show cause dated July 16, 2007, plaintiff moved pursuant to CPLR 3126 for an order striking defendants' answer or, pursuant to CPLR 3212, granting him summary judgment on liability, alleging that defendants had failed to comply with the December 14 order when they did not produce the emails, the missing pages of the Job Initiation form, and by reason of their spoliation of evidence. (Ross Aff., Exh. L). Plaintiff alleged that defendants had destroyed or failed to preserve certain pages from the May 4 and May 21, 2004 emails between Conway and Shaw and from Shaw's Job Initiation form.

In opposition, defendants asserted that they had fully complied with the order, having produced in response to plaintiff's discovery demand all email correspondence between them and Shaw and between the parties. (Id., Exh. M). Defendants also maintained that they had provided [*3]plaintiff with the same documentation in correspondence dated November 8, 2006 and, by letter dated December 4, 2006, re-asserted that all of their correspondence with Shaw had been furnished to plaintiff. (Id.).

Defendants also contended that following the December 14 order, by response dated January 5, 2007, they again provided plaintiff with all of their email communications with Shaw, and denied possessing the Job Initiation Form or having made any insurance claims to Chubb. By letter dated January 25, 2007, defendants' attorney provided plaintiff's attorney with a complete copy of the 2004 emails between Conway and Shaw, including attachments to the May 21, 2004 report. And in an affidavit dated July 24, 2007, Conway attested that the entire contents of the compilation of her correspondence with Shaw, including Shaw's May 4 and May 21, 2004 emails, were provided to defendants' attorneys. Conway also stated that the May 21 email contained, in two pages, Shaw's substantive findings of its inspection of the premises in question, and that the blank pages following the two pages were no longer in her possession. (Id.). Conway's representations are supported by the affidavit of Tanski. (Id.). Plaintiff, nonetheless, alleges that defendants failed to produce the ordered documents. (Heinze Feb. 12 Affid., p. 2).

By order dated July 26, 2007, Supreme Court ordered defendant Robert E. Mnuchin to provide an affidavit asserting that "all documents involving email transmissions" between defendants, their representatives, and Shaw, as well as plaintiff's other documentary demands have been "complied with, with the due diligence required by the CPLR." (Id.). The court also directed defendants produced for deposition by November 15, 2007, ordered plaintiff to file his note of issue by November 15, 2007, and further provided that "[a]ll rights are reserved to make appropriate motions at the conclusion of discovery." (Id.). Plaintiff concedes that he received Mnuchin's affidavit.

By letter dated November 28, 2007, plaintiff, newly self-represented, served defendants with a demand for discovery and inspection and a notice to take Robert Mnuchin's deposition on December 19, 2007, to which defendants replied on December 4, 2007. Included in these demands were plaintiff's requests for all documents pertaining to any action taken by a city or state agency regarding the mold or asbestos on the premises, copies of all agreements between defendants and Shaw, the missing pages from the Job Initiation Form, and copies of defendants' Chubb claims. Plaintiff contends that defendants' responses 13, 14, and 15, in which defendants deny having documents in their possession regarding an air conditioner, de-humidifier, and portable air purifiers purchased by defendants for plaintiff, are "incredible and non-responsive" and that they failed to provide an affidavit of due diligence from an employee or agent with knowledge. (Heinze Feb. 12 Affid., p. 3). Plaintiff denies that defendants previously provided documents in response to demand three (copies of any documents pertaining to mold or asbestos abatement, clean-up or removal by a city or state agency in the premises), and objects to responses 7 and 30. (Id.).

By order to show cause dated December 10, 2007, plaintiff moved for various relief and by decision and order dated December 20, 2007, Supreme Court ordered, as pertinent here, that plaintiff depose Robert Mnuchin and Adriana Mnuchin on January 23, 2008 and Claire Conway on January 30, 2008.

Plaintiff alleges that on December 18, 2007, he served another set of discovery demands to which defendants failed to respond. (Heinze Feb. 12 Affid., p. 4). He sought information and [*4]documents related to the de-humidifier on the premises and correspondence between defendants and Chubb, among other documents.

On January 17, 2008, plaintiff filed an order to show cause seeking to stay the action on the ground that his doctor advised that he not go forward with the action at that time due to his worsening medical condition. By decision and order dated January 31, 2008, Supreme Court denied plaintiff's motion, adding that "the parties shall complete all discovery on or before March 28, 2008 or any further discovery is deemed waived."

On February 1, 2008, Supreme Court transferred the case to this court pursuant to CPLR 325(d) and provided that "discovery shall proceed as provided in all previously issued orders."

On or about April 10, 2008, plaintiff served defendants with another demand for discovery and inspection, to which defendants replied on April 28, 2008. As pertinent here, plaintiff again asked for pages two and three of Shaw's May 4, 2004 email to defendants, pages three through nine of Shaw's May 21, 2004 report, a copy of the power of attorney given by defendant Robert Mnuchin to Conway, documents regarding the de-humidifier and portable air conditioners, and copies of any agreements between defendants and Shaw. Plaintiff now objects to defendants' responses to demand one (that all materials relevant to their communications with Shaw had been exchanged numerous times); demand two (that the excess pages of the May 21, 2004 email between them and Shaw are not in their possession); demand four (that they do not know the current location of a de-humidifier purchased in 2004 for plaintiff); demand five (that no documents exist as to the current location of three portable air purifiers purchased in 2004 for plaintiff); and demand six (that documents regarding their agreement to use Shaw's services had been previously exchanged). (Id., p. 4).

On or about July 16, 2008, plaintiff served defendants with another demand for discovery and inspection, to which they replied on August 4, 2008. He again sought information relating to Robert Mnuchin's power of attorney. Plaintiff now argues that defendants failed to provide an affidavit of due diligence regarding the demands and that their response to demand two (that the referenced power of attorney is no longer in their possession) is "obstructive, ludicrous, and incredible." (Id., p. 5).

On or about September 19, 2008, plaintiff served defendants with another demand for discovery and inspection, to which they replied on October 31, 2008 and November 3, 2008. He again asked for a full copy of Shaw's May 4, 2004 email, claim numbers for any Chubb claims made by defendants, copies of all Chubb files related to any claims, and copies of all communications between defendants and Shaw. Plaintiff contends that defendants' response to demand one (that the May 4, 2004 email between defendants and Shaw had been exchanged numerous times) is misleading and untrue. (Id.).

On September 24, 2008, a pre-note conference was scheduled in this court, and then adjourned to October 22, 2008.

On or about October 21, 2008, plaintiff served defendants with another demand for discovery, seeking more information about any claim filed by defendants with Chubb. (Id.).

On October 22, 2008, the pre-note conference was adjourned to February 25, 2009.

On or about October 31, 2008, plaintiff served defendants with another demand for discovery and inspection, to which they responded on November 10, 2008. Plaintiff again asked for, among other things, copies of Chubb's files and all communications between defendants and [*5]Shaw. Plaintiff objects to defendants' responses to demands one through four, and 11 (that the requested documents had been previously exchanged) and 12 (that no map and/or blueprint of the premises at issue is in their possession). (Id., pp. 5-6).

On November 24, 2008, defendants filed a motion for a protective order. By decision and order dated December 22, 2008, another judge of this court denied the motion, finding the relief sought to be overly broad. The pre-note conference was re-scheduled for February 24, 2009.

On January 14, 2009, before the pre-note conference was held, plaintiff served defendants with another discovery demand. (Id., p. 6).

On February 24, 2009, the pre-note conference was adjourned to March 4, 2009, which was also the return date of plaintiff's first motion to compel.

II. MOTIONS TO COMPEL

Plaintiff contends that defendants have failed to respond to his discovery demands properly and that they will not do so unless compelled by court order. (Heinze Feb. 12 Affid.).

In opposition, defendants argue that plaintiff has served multiple redundant discovery demands, that they have fully responded to all of them, that while the case pended in Supreme Court plaintiff ignored the court's direction to conclude discovery, and that plaintiff continues to delay the matter and force defendants to incur unnecessary costs. (Affirmation of Kenneth S. Ross, Esq., dated Nov. 17, 2008 [Ross Nov. Aff.]).

I first find that the issues concerning the adequacy of defendants' pre-January 31, 2008 responses were addressed by Supreme Courtto the extent that it issued several orders. And, in resolving plaintiff's motion to strike defendants' answer, the court ordered Mnuchin to furnish an affidavit of due diligence, thus implicitly rejecting plaintiff's allegations. Those allegations may not be revived here by seeking an order compelling defendants to respond to the same demands. Additionally, there is no blanket requirement that an affidavit of due diligence accompany each set of discovery responses.

Moreover, defendants complied with the December 14, 2006 discovery order in their response dated January 5, 2007, the affidavits of Claire Conway and Sharon Tanski dated July 24, 2007, and Tanski's submissions in response to plaintiff's subpoena (Ross Aff., Exhs. E, G, H, I), and have sufficiently explained the alleged omissions from their correspondence with Shaw. As a party is only required to produce those documents which are in its possession, custody, or control, and may not be compelled to produce documents which do not exist or are not in its possession (Rosado v Mercedes-Benz of North Am., Inc., 103 AD2d 395 [2d Dept 1984]; Corriel v Volkswagen of Am., Inc., 127 AD2d 729 [2d Dept 1987]), and as defendants allege that they have provided plaintiff with all of the documents in their possession, plaintiff's frustration with defendants' inability to locate certain documents forms no basis for compelling their production. There is simply an insufficient factual basis for finding that defendants failed to conduct an adequate search or that they are fraudulently withholding the documentation he seeks, notwithstanding the alleged discrepancies among the documents plaintiff received from defendants. Furthermore, plaintiff's suspicion that Mnuchin's signature was forged on the affidavit of due diligence provides no basis for further discovery.

Then, notwithstanding Supreme Court's order that all discovery not completed by March 28, 2008 be deemed waived, plaintiff served defendants with an additional six sets of demands beginning in April 2008. As the pre-note conference was repeatedly adjourned, discovery [*6]proceeded in the Civil Court without supervision.

While CPLR 3101 permits "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof," disclosure is not unlimited, and supervision of disclosure is left to the sound discretion of the court. (Silcox v City of New York, 233 AD2d 494 [2d Dept 1996]). Moreover, the right to "full disclosure" does not permit "uncontrolled and unfettered disclosure." (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2d Dept 2007]). And, although parties are free to chart their own course in discovery (Mitchell v New York Hosp., 61 NY2d 208 [1984]), a party's right to discovery "may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party." (Harrison v Bayley Seton Hosp., Inc., 219 AD2d 584 [2d Dept 1995]).

Although the referenced case law does not address the circumstances presented here, where a party repeatedly peppers his adversary with discovery demands, many of which are redundant, there is no rational basis for distinguishing a single demand which is burdensome and redundant from several sets of demands, individually and sequentially served, which in their entirety are burdensome and redundant. That plaintiff is proceeding without representation does not afford him license to engage in excessive discovery practice. "The courts are not obliged to indulge the excesses of a pro se litigant at the expense of decorum, judicial economy and fairness to opposing parties." (Couri v Siebert, 48 AD3d 370, 371 [1st Dept 2008]).

For all of these reasons, there is nothing to compel. However, should the documents plaintiff seeks be ultimately discovered, other remedies may be available to him.

Finally, defendants' opposition to plaintiff's motion to compel deposition answers demonstrates that plaintiff asked improper questions at the depositions; defendants need not answer them. (Affirmation of Kenneth S. Ross, Esq., dated Mar. 6, 2009; see Lobdell v South Buffalo Ry. Co., 159 AD2d 958 [4th Dept 1990] [witness at deposition may not be compelled to answer questions of law or those seeking legal and factual conclusions]).

I thus find no basis for compelling defendants to provide additional discovery responses, appear for additional depositions, or answer additional deposition questions. Rather, the court record reflects that this matter has been pending for several years due to plaintiff's numerous discovery demands which have, in effect, prevented plaintiff from obtaining the relief that he seeks.

III. MOTION FOR LEAVE TO ADD DEFENDANT AND AMEND PLEADING OR TO SERVE SUPPLEMENTARY PLEADING, AND IMPOSING SANCTIONS

As plaintiff sought leave to add a defendant and amend or supplement his pleadings and impose sanctions in his notices of motion only, he has provided no legal or factual basis upon which leave may be granted. To the extent that he seeks sanctions based on defendants' alleged discovery abuses, there is no basis upon which to find that defendants have not complied with properly ordered discovery. (See supra, II.).

IV. CONCLUSION

For all of these reasons, plaintiff's motions are denied in their entirety. All discovery is complete. As plaintiff has filed a jury demand, the clerk is directed to add this case to the TAP trial calendar and the parties are directed to appear for trial on May 18, 2009 at 9:30 a.m., in room 353, at 111 Centre Street, New York, New York. There is no need for plaintiff to file a [*7]notice of trial.

This constitutes the decision and order of the court.

_______________________________

Barbara Jaffe, JCC

DATED:April 16, 2009

New York, New York