Agovino & Asselta, LLP v Pile Constr. Co., Inc.

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Agovino & Asselta, LLP v Pile Constr. Co., Inc. 2012 NY Slip Op 30396(U) February 6, 2012 Supreme Court, Nassau County Docket Number: 9797/08 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - ------- -------- -- --- - - - -.........- - - --- - - - - --- -- ------- --- ), )( -- - - - - - - - ... ......... -... ----- -- --- .........---.... -..............- ......... ..... ... ......... ................. ......... - -- -- )( ............................... - --- -- -- ------ ---- - --- -- --- -- -- --- ----- --- [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - NASSAU COUNTY Present: HON. ANTHONY L. PARGA Justice PART 6 AGOVINO & ASSELTA , LLP Plaintiffs INDE)( NO. 9797/08 MOTION DATE: 12/1 SEQUENCE NO: 03 -against - 5/1 1 PILE CONSTRUCTION COMPANY , INC. Defendants. Notice of Motion , Affs , Exs.......................... ............................................................... Mem 0 ran d urn of Law................................................................................................. Notice of Cross- Motio n , E xs....................................................................................... Rep ly Affirmation & Exs...... ............. .... .............. ........... ............. Reply Affidavit.. .... Upon the foregoing papers , the motion by non- party movant , Federal Insurance Company (hereinafter " Federal" ) to vacate the Restraining Notice dated September 8 , 2011 served by plaintiff Agovino & AsseJta , LLP (hereinafter A&A" to quash the Subpoena Duces Tecum which accompanied the Restraining Notice , pursuant to CPLR 9S5522(b) and 5240 , and for damages , and the cross-motion by plaintiff to compel Federal to appear for an examination in enforcement of a judgment and to produce the documents requested in the subpoena served upon , pursuant to CPLR S5224 , are resolved as follows. The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. Non-party Federal is in the business of issuing surety bonds securing the obligations of contractors for public construction projects. In July 2004 , the City of New York entered into a construction contract with Pile Foundation Construction Company, Inc. (hereinafter " Pile [* 2] whereby Pile agreed to furnish labor , material , equipment and incidental work necessary to improve East River Park in Manhattan (hereinafter referred to as " the project" ). As required by the contract , Federal issued a perfi:)fnance bond and a labor and material bond , each in the amount of $54 205 968. , securing Pile s obligations to complete the project and to pay persons and entities performing labor and supplying material for the project on behal f of Pile. In or about January 2008 , Pile informed Federal that it no longer had the financial resources to complete the project and other projects. Pile requested that Federal , as its surety, provide it with the necessary funds to eomplete the project. Thereafter , Federal and Pile negotiated and entered into a " Funding Agrecmcnt " wherein Federal agreed to fund Pile s continued performance on the project , subject to various conditions. In consideration , Pile provided , among other things , an assignment to Federal of all moneys due and to become due from the City in connection with the project. Accordingly, Federal has been funding Pile s performance on the project pursuant to its bond obligations , and it contends that it has incurred multi-million dollar losses in connection with its funding of the project. Federal claims that as of September 7 , 2011 , Federal had incurred a loss of more than $25 million. Federal also contends that it has incurred huge losses on other projects whcre it provided bonds on behalf of Pile and claims that as of August 31 2011 , Pile s indebtedness to Federal totaled $132 517 310. 63. A&A began the instant action to recover legal fees tor legal services rendercd to defendant Pile. On or about November 12 2008 obtained ajudgment against defendant Pile in the amount of $62 700. 79. Thereafter , on November 14 , 2008 A&A served a restraining notice and information subpoena 011 Federal. On May 8 A&A , 2009 , Federal contends that it responded to said information subpoena by scrving an affidavit Miseo. According to Federal , the affdavit confirmed that that Federal held no property in which Pile has an interest. , executed by Federal' s Vincent C. Federal owed 110 money to Pile and On September 8 , 2011 , A&A served its second restraining notice on Federal , along Subpoena Duces Tecum caJJing for a deposition and the production of documents. Non- with a party Federal moves to vacate the restraining notice , arguing that the plaintiff failed to obtain leave of the court for a second restraining notice , and also moves to quash the subpoena arguing, inter [* 3] alia that it is overbroad and being used to harass Federal. Plaintiff cross-moves to compel Federal' s compliance with the subpoena , arguing, inter alia that whether Federal owes money to Pile is irrelevant to A&A' s entitlemcnt to disclosure and that A&A was not requircd to obtain leave of Court to serve the restraining notice since Federal deemed the first notice a nullity due to improper service. To begin , plaintiff's second restraining notice , dated September 8 , 2011 , is hereby vacated , as there is no evidence that the plaintiff obtained leave ofthe Court to serve its second restraining notice upon Federa1. CPLR 95222( c) states that "leave of court is required to serve more than one restraining notice upon the same person with respect to the same judgment or order. " The Court has reviewed the Subpoena Duces Tecum served upon Federal on Septcmbcr 8 2011 and has determined that a number of items contained therein are overbroad. CPLR g5240 provides that the court may " make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. " The purpose of this section is to empower the Court to prevent unreasonable annoyance , expense , embarrassment or other prejudice in the use of post-judgment procedures. 486 661 N. Y.S. 2d 20 (2d Dept. 1997); Corp. 246 AD. 2d 538 , 667 N. (Paz v. Long Island R. R. 241 AD. See also , Yeshiva Tffferes Torah v Kesher Inti Trading S.2d 759 (2d Depl. 1998)(holding that CPLR g5240 gives courts broad discretionary power to regulate enforcement procedures)). An application to quash a subpoena is appropriately granted " where the futility to uncover anything legitimate is inevitable or obvious " inquiry. or " where the information sought is utterly irrelevant to any proper (Anheuser- Busch , Inc. v. Abrams 71 N. 2d 327 , 525 N. Y.S. 2d 815 (1988); Technology Multi Sources , SA. v. Stack Glohal Holdings, Inc. 44 AD. 3d 931 845 357 (2d Dept. 2007)). The courts will be quick and firm to halt the employment of investigate for in"elevant , illegitimate or oppressive purposes. League Co-op. Ass N. the powcr to (See , Application ( f Dailymen 274 AD. 591 , 84 N. Y.S. 2d 749 (1st Dept.948)). The first eight itcms on the Schedule of Requested Documents request documentation relating to all aspects of the construction work that Pile may have performed since the datc of A&A' s judgment , including al! contracts to which Pile was a party, invoices f )r payment [* 4] submitted by or on behalf of Pile , monies received by or on behalf of Pilc , monics rcceived by or on behalf of Federal , as well as all payments to Pile s employees , subcontractors , vendors suppliers , or family members since November 12 , 2008. It is evident from the submissions before this Court that the East River Park Project involves millions of dollars of construction work , many subcontractors , and many supplicrs and that Pile assigned all moneys due ii' om thc City in connection with the project to Federal by the terms of the Funding Agreement. Accordingly, plaintiffs request for said documentation is overly broad. Further , said documentation is irrelevant to the satisfaction of A&A' s judgment , and , contrary to plaintiff's contentions , the documents and information sought in the subpoena are not directly related to Pile income and assets. Accordingly, it is hcreby ordcred that the first eight items listed in thc Schcdule of Requested Documents in the Subpoena Duces Tecum of September 8 , 2011 are hereby quashed. Further , item number nine (9) is modified to limit said request to documents relating only to any monies paid or transferred Ii' om Federal to Pilc , its officcrs , or family membcrs of its officcrs , on or after November 12 , 2008. Plaintiff is entitled to a response to item numbcr ten (10). Item number eleven (11) is hereby modified to limit said request to copics of Pile' s income tax returns for 2008 2009 , and 2010 which arc within Fcderal' s posscssion. Items numbered twclvc (12) and thirteen (13) are hereby modified to limit said requests to cancelled checks drawn on Pile' bank accounts to which Federal has access and/or control and bank statements pcrtaining to Pile s bank accounts to which Federal has access and/or control from November 12 2008 to present. Lastly, Federal shall not be required to produce a witness for deposition. Non- party Federal shall respond to the subpoena , dated September 8 above , within forty- five (45) days of the date of this Ordcr. Federal' , 2011 , as modificd s rcquests for damages and sanction are denied. Dated: February 6 , 2012 ENT RED FFR 08 2012 MASSAU COUNTY COUNTY CLERK' S OFFlcr [* 5] Cc: Schnader Harrison Segal & Lewis , LLP Attn: Scott D. St. Marie , Esq. 140 Broadway, Suite 3100 New York , NY 10005- 1101 Agovino & Asselta , LLP Attn: David A. Loglisci , Esq. 330 Old Country Road , Suite 201 Mineola , NY 11501

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