Alba Inv. LLC v GCM Serv. Corp.
2012 NY Slip Op 31096(U)
April 11, 2012
Sup Ct, Nassau County
Docket Number: 9166/11
Judge: Denise L. Sher
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[* 1]
SCAN
SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
PRESENT: HON. DENISE L. SHER
Acting Supreme Cour Justice
TRIAL/IAS PART 31
NASSAU COUNTY
ALBA INVESTMENTS , LLC
Plaintiff
Index No. : 9166/11
Motion Seq. No. : 02
Motion Date: 03/19/12
- against -
GCM SERVICES CORP. , ALEXANDROS DEMETRIADES
GERALD CANINO A/K! A GERARD CANINO
PEOPLE OF THE STATE OF NEW YORK
JOHN DOE" #1 through " JOHN DOE" #10 , the last 10
names being fictitious and unown to Plaintiff and intended
to be persons or entities , if any, being possible tenants or
occupants of said premises and/or persons or entities having
or claiming to have a lien upon the propert described in the
complaint subordinate to the lien of Plaintiff
Defendants.
The followin2 papers have been read on this motion:
Papers Numbered
Order to Show Cause Affirmation Affidavit and Exhibit
Affirmation in Opposition and Exhibits
Upon the foregoing papers , it is ordered that the motion is decided as follows:
Non- part
movant Evelyn Gonzalez (" Gonzalez
) moves , pursuant to CPLR
3103 and
3122 , for an order quashing plaintiffs Subpoena Duces Tecum dated December 28 2011 and
plaintiffs Amended Subpoena Duces Tecum dated Januar
30 2012 and/or preventing the
disclosure of documents from JPMorgan Chase Ban , N. A. of non-par witness Gonzalez.
[* 2]
Plaintiff opposes the motion.
On or about June 25 2010 , plaintiffloaned defendant GCM Services Corp. (" GCM"
$750 000. 00 and defendant GCM , by its President , defendant Alexandros Demetriades
Demetriades ), through his purported attorney- in- fact , James Kalpakis , and by its purorted
Vice President , defendant Gerald Canino a/kJa Gerard Canino (" Canino ), executed a Mortgage
Note and gave plaintiff a Mortgage against real propert
known as
169 Middle Neck Road , Sands
Point , New York to secure repayment thereof. Defendant Canino executed an absolute and
unconditional guaranty whereby he agreed to personally guarantee repayment of the loan. As a
result of defendants ' failure to repay the subject loan pursuant to the terms of the Note and
Guaranty, plaintiff commenced the instant action to foreclose the Mortgage with the filing of a
Summons and Verified Complaint on or about June 21 , 2011.
On December 29 2011 ,
Bank , N. A.
See
plaintiff served a Subpoena Duces Tecum upon JPMorgan Chase
Plaintiff s Affirmation in Opposition Exhibit 1. Plaintiff subsequently amended
said Subpoena Duces Tecum to reflect non-par movant Gonzalez s correct social security
number.
See
Plaintiffs Affirmation in Opposition Exhibit 2. Said Subpoena Duces Tecum seeks
documents related to the circumstances surrounding non-par movant Gonzalez s notarization of
a Power of Attorney purportedly executed by defendant Demetriades , in favor of James Kalpakis
on June 23 ,
2010 , which was used to obtain the loan secured by the mortgage that plaintiff now
seeks to foreclose.
Non- par movant Gonzalez argues that the items requested in the subject Subpoena
Duces Tecum are " broad , overreaching, bear no relevance to the issue at hand (notary signature)
and contain privileged information. " Non-pary
movant Gonzalez contends
that she has already
[* 3]
voluntarily appeared for a deposition pursuant to a non-judicial subpoena and has given
testimony relating to her notar. Non- par movant Gonzalez states that she testified at the EBT
answering in the affirmative that it was in fact her signature on the subject Power of
Attorney. Non- par movant Gonzalez adds that her deposition has not yet been completed. Nonpar movant
Gonzalez further submits that she was not employed with JPMorgan Chase Ban
A. at the time of the subject notar
signatue which
is " even more reason that the Cour should
issue an Order quashing this subpoena. " She also contends that " neither par has produced any
evidence challenging her signature or the Power of Attorney.
Non-par movant Gonzalez argues that items numbered one through four (1- 4) of the
subject Subpoena Duces Tecum are overreaching and bear no relevance to the instant matter as
they ask for:
1. All documents relating to the beginning and ending dates of employment of Evelyn
Gonzalez f/ka Evelyn Torres... by JPMorgan Chase Ban , N.
2. All documents relating to the beginnng and ending dates of employment of Ms.
Gonzalez while employed by the JPMorgan Chase branch located at 201 Post Avenue
Westbur, New York 11590.
3. All documents relating to the position(s) held by, or job title(s) of, Ms. Gonzalez while
employed by JPMorgan Chase during the period Januar 1 , 2009 through December 31
2011 (the ' Relevant Period'
4. All employee handbooks , policies , procedures , and/or manuals relating to Ms.
Gonzalez s duties and responsibilities as an employee of JPMorgan Chase during the
Relevant Period.
With respect to item number five (5) in the subject subpoena duces tecum , which requests
(a)ll documents setting forth the standards , rules and regulations in effect during the Relevant
Period governing the notarization of documents by employees of JPMQrgan Chase within the
state of New York " non-pary movant Gonzalez argues that " (i)tem 5 relates to the rules
governing a Notar by Chase , assuming Chase even has such a rule or regulation , during her
[* 4]
employment. The paries are well aware that when Ms. Gonzalez notarized the Defendant
Demetriades ' signature she was NOT an employee of Chase. More
importt is that those rules
are governed by New York State and not Chase. Thus , the entire Amended Subpoena is of no
relevance and asks for many items that are also privi eged and confidential."
In opposition to non- part
movant Gonzalez
s motion , plaintiff argues that the subject
Subpoena Duces Tecum is limited in scope and seeks documents relevant to non-par movant
Gonzalez s notarization of the Power of Attorney. Plaintiff contends that " (a)s Gonzalez and
Demetriades have given conflicting testimony as to the validity of the Power , the documents
demanded in the Subpoena may contain information that is material and necessar to the claims
asserted in this action.
Plaintiff adds that " ( w lith the Subpoena pending, ' Gonzalez was deposed on Februar
3
2010 pursuant to a subpoena. She testified that she signed and notaized the Power... and was
unemployed when she did so.... Gonzalez , however , did not recall the exact date when she
stopped working for JPMorgan Chase and did not provide any documents relating to her last day
of employment by JPMorgan Chase. At his deposition held the same day, Demetriades testified
that he did not sign the Power and that he had never seen Gonzalez prior to his deposition....
Because Demetriades challenges the validity of the Power , which Plaintiff relied upon in giving
the Loan secured by the Mortgage , the documents and information demanded in the Subpoena
may cast light upon the circumstances surounding Gonzalez s notarization ofthe Power.
Accordingly, this Court should deny Gonzalez s motion in its entirety. Notwithstanding the
foregoing, Plaintiff is not opposed to further limiting the scope of the Subpoena to request only
that JPMorgan confirm the end date of Gonzalez s employment and , in the,event that Gonzalez
was stil employed by JPMorgan on June 23 2010 , that JPMorgan Chase provide any handbooks
[* 5]
manuals , or other internal policies governing notarizations by ban employees during the relevant
period. "
The Cour notes that non-part
movant Gonzalez served
a Reply Affirmation upon the
Court and paries in the instant matter on April 2 , 2012. However, the instant motion was marked
submitted for decision by the Cour
on March 20 ,
2012. Accordingly, non-party movant
Gonzalez s Reply Affirmation was not timely and wil
not be cQnsidered by the
Cour in
rendering its decision.
Based upon the facts and arguments set before it , the Court finds that the information
requested in plaintiffs Subpoena Duces Tecum is indeed over broad and overreaching. Nonparty movant Gonzalez gave sworn testimony at her EBT that she was not employed by
JPMorgan Chase Bank , N. A. at the time she notarized the subject Power of Attorney. Therefore
requesting all documents pertaining to the period oftime that she was employed at JPMorgan
Chase Ban , N. A. is clearly irrelevant to the instant action. However , according to the selected
pages of non- par movant Gonzalez s EBT testimony provided as Exhibit 7 to plaintiffs
Affirmation in Opposition , Ms. Gonzalez could not specifically recall the date when she stopped
working for JPMorgan Chase Ban , N.
, stating, " I know that is was - I don t know if it was
January or February in 2010 , I not clear in that , but I know that it was in 2010.
See
Plaintiffs
Affirmation in Opposition Exhibit 7 p. 8 lines 12- 14. Based upon said answer, there is some
uncertainty as to when , in fact , plaintiffleft her employment with JPMorgan Chase Ban, N. A..
Accordingly, non- party movant Evelyn Gonzalez (" Gonzalez ) motion , pursuant to CPLR
~ ~ 3103 and 3122 ,
for an order quashing plaintiff s Subpoena Duces Tecum dated December 28
2011 and plaintiffs Amended Subpoena Duces Tecum dated Januar
30 2012 and/or preventing
the disclosure of documents from JPMorgan Chase Bank , N. A. of non- pary
witness Gonzalez
[* 6]
hereby GRANTED. However, the Court furher orders that JPMorgan Chase Bank , N.
confirm , by letter to plaintiffs counsel , the end date of non-par movant Gonzalez
employment with JPMorgan Chase Ban , N. A. and , in the event that non-par movant Gonzalez
was stil employed by JPMorgan Chase Ban , N. A.
on June 23 ,
2010 , that JPMorgan Chase
Bank , N. A. provide any handbooks , manuals , or other internal policies governing notarizations
by JPMorgan Chase Ban , N. A. employees during the relevant period.
It is further ordered that the paries shall appear for a Certification Conference on April
2012 , at 9:30 a.
, in IAS Part 31 of the Nassau County Supreme Cour , located at 100
Supreme Cour Drive , Mineola, New York.
This constitutes the Decision and Order of this Cour.
Dated: Mineola, New York
Aprilll 2012
ENTERED
AP
11-
COUNTY
NASSU
COUNTY CLERK' OFFICE
