Alba Inv. LLC v GCM Serv. Corp.

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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 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] 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

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