American Petroleum Distribs., LLC v American Express Co. Inc.

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American Petroleum Distribs., LLC v American Express Co. Inc. 2012 NY Slip Op 31604(U) June 11, 2012 Supreme Court, Nassau County Docket Number: 15523-11 Judge: Steven M. Jaeger 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] .sc SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice AMERICAN PETROLEUM DISTRIBUTORS TRIAL/lAS , PART 41 NASSAU COUNTY LLC INDEX NO. : 15523- Plaintiff MOTION SUBMISSION DATE: 4- 16- -againstAMERICAN EXPRESS COMPANY INC. MOTION SEQUENCE NOS. 001 and 002 Defendant. The following papers read on this motion: Notice of Motion , Affirmation , and Exhibits Notice of Cross- Motion , Affirmation , and Exhibits Plaintiff' s Affirmation in Opposition to Cross- Motion Reply Affirmation in Support of Cross- Motion Amended Affirmation in Opposition to Plaintiff' s Motion to Preclude Motion pursuant to CPLR 3126 by plaintiff American Petroleum Distributors , LLC to preclude defendant from opposing any of plaintiff s claims or supporting any of its defenses; from offering in evidence those documents requested , but not produced , in plaintiff s first request for documents (December , 2011) or from producing in evidence any testimony from persons designated in plaintiff s notice to take deposition; and to strike defendant's answer is denied. Cross motion by defendant American Express Company, Inc. pursuant to CPLR 3124 to compel plaintiff to comply fully with defendant' s amended notice [* 2] for discovery and inspection (January 16 2012) and demand for authorizations (December 16 , 2011) is determined as hereinafter provided. This action arises from defendant' s alleged theft of the sum of$52 765. from plaintiff s bank account maintained at JP Morgan Chase Bank by unauthorized electronic transfer of funds from plaintiff s bank account to defendant during the period September 9 , 2011 through October 3 , 2011 , and the alleged withholding of the sum of $1 0 361.43 due and owing plaintiff as and for American Express credit card charges processed by plaintiff through defendant Amex Merchant' s Account ID# 6318829207 for the business located at 1245 Nepperhan Avenue , Yonkers , New York. Plaintiffs amended complaint asserts causes of action sounding in theft/unjust enrichment and breach of contract/unjust enrichment. Pursuant to the Preliminary Conference Stipulation and Order dated February 15 , 2012 , responses to the demands for discovery and inspection previously served by both parties were to be provided by March 15 2012. On or before that date , plaintiff was to provide responses to defendant' s demands including: amended notice for discovery and inspection dated January 16 2012; 1n addition , plaintiff alleges that defendant has advised plaintiff of its intention to deduct the sum of $2 761. 19 from credit card charges processed by defendant under plaintiff's account ID # 6318829082. [* 3] amended first set of interrogatories dated January 16 2012; demand for authorizations dated December 16 , 2011; demand for statements dated December , 2011; and demand for witnesses dated December 16 , 2011. All parties were to exchange the names and addresses of eye witnesses notice witnesses , statements of opposing parties and photographs , or , if none provide an affirmation to that effect. Depositions were to be conducted on April 2012. Claiming that it had responded to all of defendant' s discovery requests prior to February 27 2012 , plaintiff seeks to prohibit defendant from opposing any of plaintiff s claims or supporting any of its defenses. Plaintiff seeks also to preclude defendant from producing in evidence those documents requested in plaintiff s first request for production of documents; from producing in evidence any testimony from persons designated in plaintiff s notice to take deposition and to strike defendant' s answer. Based on defendant' s purported refusal to provide discovery, or a witness with personal knowledge of the actual theft of money from plaintiff s bank account , plaintiff seeks a default judgment against defendant for the amount demanded in the complaint. In response , defendant argues that plaintiff s initial discovery response to defendant' s amended notice for discovery and inspection and demand for [* 4] authorizations are inadequate , as a matter of law , in that plaintiff has failed to vis-a-vis provide the requested documentary evidence its alleged contractual relationship with defendant or authorization for relevant checking account records and/or documents pursuant to which defendant was authorized to make withdrawals. Defendant , therefore , has cross moved to compel plaintiff to fully comply with the subject requests. It is well settled that a party is entitled to full disclosure of all matter that is material and necessary in the prosecution or defense of an action. 3101 (a). CPLR The decision as to what is material and necessary is left to the sound (Buxbaum v Castro 82 AD3d 925 (2 Dept 2011)), and discretion of the court includes " any facts bearing on the controversy which wil assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. Allen v Crowell- Collier Pub!. Co. 21 NY2d 403 406 (1968). Requests , however , may not be overbroad , burdensome or lacking in specificity nor may they seek irrelevant information. Osowski v AMEC Constr. Mfgt. , Inc. 69 AD3d 99 , 106 (l st Dept 2009). CPLR 3101(a) is to be interpreted liberally in favor of disclosure. v CVS Pharmacy, Inc. 81 AD3d 611 , 612 (2 Montalvo Dept 2011). The documents sought , however , must be material and necessary to the prosecution or defense of [* 5] the action so as to assist preparation for trial by sharpening the issues and reducing delay and prolixity. Tower Ins. Co. of NY v Murello 68 AD3d 977 (2 Dept 2009). The phrase " material test is one of " usefulness and necessary " is to be interpreted liberally and the and reason. Kooper v Kooper 74 AD3d 6 10 (2 Dept 2010J (internal quotation marks omitted). While the nature and degree of penalty sought to be imposed for the failure to comply with an order of disclosure is a matter of discretion with the court , the striking of a pleading is inappropriate absent a clear showing that the failure was wilful , contumacious or in bad faith. 619 620 (2 Workman v Town of Southampton 69 AD3d Dept 2010). Wilful and contumacious conduct can be inferred from a party s repeated failure to respond to demands , or to comply with discovery orders , absent a reasonable excuse. Horne v Swimquip, Inc. 36 AD3d 859 (2nd Dept 2007). Where the failure to disclose is neither willful nor contumacious , a single instance of non-compliance does not warrant the striking of a party pleading. Palmenta v Columbia Univ. 266 AD2d 90 , 91 (1 st Dept 1999). Here , it does not appears that defendant has willfully or contumaciously obstructed the course of disclosure. Defendant has provided responses to plaintiff s first request for documents and demand for witnesses. The court notes [* 6] that plaintiffs objection to defendant' s proposed deposition witness is unavailing as well as premature. A corporate entity has the right to designate , in the first instance , the Schiavone v Keyspan Energy Delivery NYC, 89 employee who shall be examined. AD3d 916 917 (2 Dept 2011J; Nunez v Chase Manhattan Bank 71 AD3d 967 968 (2nd Dept 2010). Plaintiff has failed to demonstrate that defendant' s proposed disposition witness has insufficient knowledge of the complained of transaction or is otherwise inadequate. 2011J. As such , Conte v County of Nassau 87 AD3d 559 , 560 (2 Dept plaintiffs objection to defendant' s proposed deposition witness lacks merit. Inasmuch as defendant has complied with plaintiff s disclosure requests plaintiff s request for sanctions pursuant to CPLR 3126 is denied. Further plaintiff has failed to provide an affirmation of good faith in accordance with the requirements of22 NYCRR 202. 7(c) which provides that the affirmation must indicate the time , place and nature of the consultation and the issues discussed and any resolutions , or shall indicate good cause why no such conferral with counsel for opposing parties was held. " An affirmation that does not show that the movant attempted to obtain discovery, that was previously ordered prior to initiating a discovery motion , is inadequate. Natoli v Milazzo 65 AD3d 1309 [* 7] 1310- 1311 (2 Dept 2009J; Tine v Courtview Owners Corp. 40 AD3d 966 , 967 Dept 2007). With respect to defendant' s cross motion to compel plaintiff to provide a more complete response to its discovery requests , the court notes that CPLR 3120( 1 )(i) permits discovery of " designated documents. . . which are in the custody or control of the party. . . . " It is axiomatic that a party may not be compelled to produce , or sanctioned for failing to produce , information that does Vaz v New York City Tr. Auth. 85 AD3d not exist or which he does not possess. 902 903 (2 Dept 2011J; Corriel v Volkswagen of Am. 127 AD2d 729 , 731 (2 Dept 1987). The failure to provide information in its possession , however , wil Sagiv preclude a party from later offering proof regarding that information at trial. v Gamache 26 AD3d 368 , 369 (2 Dept 2006). Where , as here , a party objects to an item of disclosure on the sole ground that it is not in possession of any documents responsive to the particular request the objection must be supported by an affidavit of the party itself detailing the efforts made to locate the documents at issue , or an affidavit from any other person having knowledge of where the documents are , or should be , located. Fugazy v Time Inc. 24 AD2d 443 (l st Dept 1965). Plaintiff has failed to provide such an affidavit. [* 8] In addition to a cause of action for theft of money, plaintiff asserts a cause of action for breach of contract. To establish such a claim , plaintiff must demonstrate: 1) the existence of a contract between plaintiff and defendant; 2) consideration; 3) performance by plaintiff; 4) breach by the defendant; and 5) damages resulting from the breach. Furia v Furia 116 AD2d 694 , 695 (2nd Dept 1986J. Plaintiff cannot , therefore , avoid the production of inter alia documentary evidence of the alleged contract/agreement supportive of its allegations and claims. Plaintiff is directed to respond more fully to defendant' s notice for discovery and inspection (January 16 (December 16 , 2012) and demand for authorizations 2011). To the extent that documents are not in plaintiffs possession , a member of plaintiff LLC shall provide an affidavit regarding their unavailability indicating that a thorough search was conducted in a good faith Henderson-Jones v City of New York 87 AD3d 498 , 505 effort to produce same. (l st Dept 2011). Dated: June 11 2012 STEVEN M. JAEGER , A. J. I!NT ' RED JUN 12 2012 NAII COUM'Y OOUNTY Ctl"" OFFII!

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