Hiller v Amella

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Hiller v Amella 2012 NY Slip Op 32440(U) September 14, 2012 Supreme Court, Suffolk County Docket Number: 36269/2009 Judge: William B. Rebolini 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 FOll1)Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Index No_: 36269/2009 Patncia Hiller, Plaintiff~ -againstJoseph V. Amella and Michael 1. Golde, Defendants. Attornevs rSee Rider Annexed-] Motion Sequence No : 009; MOT.D"'/ Motion Date: 2/15/11 Submitted: 5/30/12 Motion Sequence No .. 010; MD / Motion Date: 3/1 0111 Submitted: 5/30/12 Motion Sequence No : 011; XMD ...,.,Motion Date: 3/10/11 Submitted: 5/30/12 Motion Sequence No_: 012; XMD / Motion Date: 3/10/11 Submitted: 5/30/12 Motion Sequence No : 013; MOT.D / Motion Date: 6/9/11 Submitted: 5/30/12 Motion Sequence No: 014; MD / Motion Date: 7/28/11 Submitted: 5/30/12 Upon the follO\ving papers numbered 1 to 105 read upon these motIons to compel, to produce, to quash and to seal l·ecords: Notice of Motion/Order 10 Show Cause and supporting papers, 1 - 13; Answcnng Affidavits and supporting papers, 14 - 15; Replying Affidavlls and supportl11g papers, 15(a) - 15(b), Notice of Motion/Order to Show Cause (010) and supportll1g [* 2] Hiller v.. ,,"mellu and Golde Index No.: 36269/2009 Page 2 papers, l() ~ JS, Answenng AITidavits and supporting papers 36 - 37; Replying Aflidavlts and ~:llpp0rllng papers, 38 ~39, Notice orCross Motion (0 I I) and supporting papers, 40 ~57, Answering AfIidavlts and supp0rlmg papers, 58 - 76; Replying Aflldavlts and supporting papers 77 ~ SO; Notice of Second Cross Motion (012) and supporting papers, 81 - 84; Answ'cring Aflidavits and supporting papers, 8S - 00; Notice of Motion/Order to Show Cause (013) and supporting papers, 91 - 97; Answenng A ffidavlts and supporting papers, 98 - 99; Notice of Motion/Order to Show Cause (0 14) and sLlpport1l1g papers, 100 - 105; it is ORDERED that the motion (009) by plalt1til'f for an order compelling the production of documents, the motion (0 I0) by plalt1ti fTlor an order holdmg non-party Accretive Solutions, Inc. in contempt, the motion (013) hy defendant Joseph V. Amelia for an order staYlllg the action and compelling the production or documents, and the motion (014) by non-party Accretive Sol utions, Inc. for an order to seal records, arc consolidated for the PUlvoses of this detcnninatloll and arc decided together with the cross 1ll0tlOn (011) by non~party Accretive Solutions, Inc. for an order quashing a subpoena duces tecum and the second cross motion (012) by defendant Michael J. Golde to stay the action; and, it is further ORDER};,'/) thallhe motion numbered "010" by plaintifC for an order holding non-party AccretIve SolutIons, Inc. in contempt and directing the production of documents and the cross motion numbered "0] 1" by nOIl~party Accretive Solutions, Inc. for an order quashl11g a subpoena duces leCUIll are denied without prejudice as the parties have requested a ninety day adymrnmcnt of them to attelllpl to resolve the issues contained therem: and, it is fUl1her ORDERED that the motion numbered "012" by defendant MichaelJ. Golde for an order staying the within action is denied as moot, the same having been withdrawn by the partics; and, it i·-;('urlher ORDERED that the part oCthe motion numbered ,m oruer staying the withIn action further IS by defendant .Ioseph V. AmelIa for denied as moot, the parties having withdrawn same; and, it IS "(1)" ORDERED that the unopposcd motion by non-party Accretive Solutions, Inc. for an order pursuant to 22 NYCRR ~216.1 scaling those portions of defendant Joseph V. Amelia's motIon llumbered "014", ll1cludmg supporting affirmations or any opposition on iile WIth thG COllrt, d isclusing the IlnancJallerms oCthe settlement agreement invo Iving the non-party is delllcd as mOOl, the part i cs ,Irld the In() vant ha vi ng en tered iI1to a stll)ll1aled protecti ve order resa Iv ing the 1ssucs, and, It IS I'unher ORDERED that the mOllon numbered "()Ol)", by" plainti rr, ror an order compel ling dcl'end,lnt Joseph V Amelia to answer certain Interrogatories and to produce outstanding doculnents requested. and that the part oC the motion numhered "013" by defendant Joseph V. AmelIa ror ,lll order compelling plal11tifTto produce ccrtalll records are detenmncd as follows. [* 3] Jlilh.'r \'. Amelia and Golde Index No.: 3626l)/2009 J.lagC' 3 FACTUAL INFORMATION Plainti ff commcnced the within action to recover damagcs she allegedly sustained as a result orfraud. conversion. unjust enrichment. intentional infliction of emotional hann, and moncy had and reccived by defcndants. After issue was joined, on January 29, 20 I0, plainti fr servcd her "First Set ofInterrogatorics on Defendants" and her "First Demand for Production of Documents for Discovery and Inspection". Defendant Joseph V. Amella ("'Amelia") served responses thercto, howevcr thcre remain issues with regard to document demands numbered "6", "8", "II", and "13" and Interrogutories numbered "19", "26", and ""27'"_Thus, plaillli ffbrings the within motion to compel defendant Amella to answer the interrogatorics and 10produce the documcnts she requestcd. DOCUMENT DEMANDS 6 & II and INTERROGATORIES 19 & 26 Insofar as the items numbered "6" and "11" of the documents demanded are concclllcd, till': affirmation of defendant Amella's attomey indieatcs that defendant Amelia does not posscss the documents. Additionally, he affinns that with rcgard to interrogatory numbered "]9", uclcndant Amclla has previously responded by his attollleys' November 1,2010 letter which indicated that defendant "AmelIa's banking for the years in question was conducted at C'itibank". and that with regard to interrogatory numbered "26" the said lelter detailed that, although the interrogatory \vas (lverly broad and burdensome, "any communications would be contained in rnon-party] Accretive servers". Neither the response to the document demand numbered "6" and "I I", nor the answcrs \0 the interrogatories numbered "19" and "26" are in proper form (see CPLR 3122 and 3 I33). Thus, defendant Amelia IS clJrectcd to serve a detailed affidavit as to these items explaining that he is 110t ill possession or such documents or specifying the location or each document as well as Culland wlllplclC answers to the numbered mtcrrogalorics within 20 clays of the date of this order. DOCUMENT DEMANDS 8 &13 and INT[RROC,ATORY 27 1'h<11ortion nfpl<lmlirr's motion addrcssed to her documcnt requcsts numbered "S" and "1 ::;"Hnd p interrogatory \lumbercd "21"", as well as defendant's Illotion to compel plainti frIo produce records of an earber Equal Employment OPPOItUlllty COllllllissioll ("EEOC') action rcmalll at issuc. The doculllcnts rcqucsted ill item "S" arc ."[c]opies of any and all of defendants' payments received, checks, bank or financial records or statements, or other doculllcntation from the years 2002-2006", and in item ,. I3" arc""[CJOpiCS f allYand all records or doculllcntation in defendants' possession thal o reneel Amclla's lCllllinatioll from Accretive'-' Intcn-ogatory llumbcrcd "27'" asks ''[w]ith regard to l.cfclllIanl AmcJ1a, identify all documents regarding AmelIa's tellnination from Accrctive_" III response to the laneI' two dcmands, defcndant Amelia asserts that the illfollllation requestcd is not relevant to plaintiffs action, that it IS confidcntial in nature and that it is based upon plaintiffs [* 4] Hiller \'. Amelia and Golde ludex No.: 3626912009 Pagl.:' ~ premise that he was fired by Accretive, a fact which has not been proven. With regard to document request numbered ··8"'. defendant claims that it is overly broad and burdensome and palpably improper. Plaintiff objects to defendant Amelia's demand to produce records of her prior fEOC action on the grounds that the info1l11ationsought is protected by the anol11ey/clicnt privilege and the work product doctri nc, and that it is pri vilegcd and con fldenti at. Addi tiona IIy. plaintllT mai Illains that the asserted claims therein were matcnally differcnt and immaterial to this lawsLllt. Parties to lltlgation arc entitled to "Cull disclosure oCall evidence matenal and necessary III the prosecution or defense of an action, regardless of the burden of proof' (CPLR 3101 [aJ). ThiS provision has becnliberally construed to require disclosure "of any facts bcaring on the controversy which will assist [the parties'] preparation Cor trial by sharpening the issues and reducmg delay and proliXity" (Allell I' Crowell-Collier Pllb!. Co., 21 NY2d 403, 40G, 288 NYS2d 449 [1968J). "[fthere is any possibility that the information is sought in good faith for possible use as evidencc-in-chief or in rcbuttal or for cross~examination, it should be considered 'cvidence matcrial * * * in the prosccution ordcfense'" (Allelll' Crowell-Collier Plibl. Co.,slIpra, at 407>288 NYS2d 449, quoting CPLR 3101). Nonetheless, litigants do not have carle hlanche to demand production of any documents or other tangible items that they speculate might contain useful infonllalion (see Beckles I' Kiugsbrook Jewish Med. Or., 3GAD3d 733, 830 NYS2d 203 [2d Oept 2007]; Smith I'Moore. 31 AD3d 628, 818 NYS2d G03 [2d Dept 20061; Vyas v Campbell, 4 AD3d 417,771 NYS2d 375 [2d Dcpt 2004J)_ Thus, a party will not he compelled to comply with dIsclosure demands that are unduly hurdensome, lack spcciliclty, seck privilcged material or irrelevant infonllation, or arc otherwise Improper (see C.g.Astllllillo v St. Francis-Beacon Extended Care Fm:ility, Inc., 12 AD3d 469, 784 NYS2d 645 [2d Dept 2004J; Bettall v Geico Cell. IllS. Co., 296 AD2d 469, 745 NYS2cl 545 [2d Dcpt 1, /1' dismissed 99 NY2d 552, 754 NYS2d 204 ["2002J;Crazy/owll Flimitlire v BrooklYII U"ioTl Gas Co.. ISO AD2cI 420. 54 I NYS2cI]0 l2eI DCpl 1989]). The swcepmg demand for copIes of"any and all of defendants' paymcnts received, checks, bank or financial records or statements, or other documentation from the years 2002-2006·' is Improper, as il is ovcrly broad (lnd unduly burdensome (see T{fji CommlillicClfio"s, I"c. v Bronxville TOII'us Apts. Corp., 48 !\D3d 551,849 NYS2d 890 [2e1Dcpt 2008]; Law Offs, Billder & Bintiel', P.c. I' O'Shea. 44 AD3d 626, 848 NYS2d 178 [2d Dept 2007J; Challg I' SDI b1fl, 111('.,supm; flltttlre i' Smith, 304 AD2d 534, 758 NYS2d 135[2d Dcpt 2003]; Bettall "Geico Gen. IWi. Co.. .\ltpra; Saratoga Hamess Rllci"l: I' Roemer, 274 AD2d 887, 711 NYS2d 603 r3d Dept 2000]; see ('Iso Ben:enherg I' Telecom Plus of Upstate N. Y.. J 19 AD2d 717, 501 NYS2d 131 [2d Depl !98(1)Willie the reply affinnatiol1 submitted by plaintiffs counsel indicates that plainti rr ofl"ers to revise this disclosure demand by her Supplemental Demand for a complete set of defendant Amelia's personal federal and state income tax retums and fonlls W-2 for the years 2002-2006, compliance \vith an lInproper demand for disclosure will not be compelled (see Belli' Cobble Hill Health Or .. .wpm; Lopez l' H1l11lillgton AUlOhaus, 150 AD2e! 351,540 NYS2d 874 (ld Dcpt 1989J). Thus, plaintiffs motIon to compel defendant Amclla to respond to item numbered ··S'· of her document (18111<1110 IS denied. [* 5] Hiller \' . .'\111<.'lIa and Coldl' Index Nfl.; 36269/2009 Page =- DEI'ENDANT'S DOCUMENT DEMAND 27 and INTERROGATORY 13 As there is u strong public policy 111 favor of full disclosure, a party seeking to withhold discovery on the ground of privilege has the burden ofpraving each clement of the privilege asserted (see Spec/rum $l's. Ill/I. Corp. v Chemical Bank. 78 NY2d 371. 575 NYS2d 809 [1991]; Jllatler of Pries/l' Helllle~·.'i)'. NY2d 62. 431 NYS2d 511 [1980]; KOllmp l' Smith, 25 NY2d 287, 303 51 I~YS2d 858 [1968]). Thus. where a party alleges that documcnts sought for production and inspection arc shielded from disclosure by the attomey-client privilege, the panyseeking to withhold such documents has the burden ofdcmonstrating that the infonnation contallled therein constitutes confidential communications between the attomey and the cliem for the purpose of securing legal services or advice (see Rossi v Hlue Cross & Blue Shield of Greater N. Y., 73 NY2d 588, 542 NYS2d 508 [1991]; All WasleSys. l' Gulf/us. Co., 295 AD2d 379, 743 NYS2d 535 [2d Dept2002J; Bertaln's Rest. l' Er:c/ulIlge IllS. Co., 240 AD2d 452, 658 NYS2d 656 [2d Ocpt I997]). Significantly. the attomey-client privilege applies only to confidential communications with counsel. lIot to infollllatioll oblained from or communicated to third parties (see Doe l' Poe, 92 NY2d 864, b77 NYS2d 770 [1998J; People v Harris, 57 NY2d 335, 456 NYS2d 694 [1982J; Malter of Civil Sen'. £m,,15. AsSll. I' Olllario COUlltyHealth Fadlit)', 103 AD2d 1000,478 NYS2d 380 [4th Oept 1984'1, (lfJlJelll dismissecl64 NY2d 816, 486 NYS2d 926 [1985]) or to underlying factual infolll1atioll (see Niesig I' Team I, 76 NY2d 363, 559 NYS2d 4931-1990.1;Spec/mm ~YS.Illll. Corp. v Chemical BallI., 157 AD2d 444. 558 NYS2d 486 [I st Dept], afJd (IS lIIodified 78 NY2d 371,575 N YS2d 8091). Furthcnllore, a client may not insulate Infonnution from disclosure by conveYll1g it to an attorney when such in!orlnation is not relevant to the rendering of legal services (Spectrum Sys. lutl. COI]). l' Chemical Bauk, silpra; Rossi 11 Bille Cross & Bille Shield of Greati!r N. Y., supra; Milfter of Graud.lll1:I' Sub"oeua/Bekills Record Storagi! Co.l, 62 NY2d 324, 476 NYS2d SOC} [1984]). Therefore, whether a particular document is shielded from disclosure necessarily is a Llet-specific dctcrm inat] 011 that most 0 ItCIlreq uIres an ill cameru inspcclion 0 f the document (see ::,'pectl'llm ,,\)5. Illti. Corp. " Chemical Balik. supra) Here, counsel's cOl1clusoryassertions that materials rclati ng to the EEOC matter arc shielded fr-omdisclosure under the attorney-clIent pnvdege arc insufficient to meet plaintiff's burden as the p,lrty asserLing such protection (see Matter of Pries/ 11 llennessey, supra; Mil'llllr!a I' Mirallda, 184 AD2d 286, 584 NYS2d 818 [I st Dept 1992]). However. ll1aslllueh as relevancy and confidentiality claiIl1Srem ai11 i11 iSSLle bout the req LlcsledIIIfonnati on, the plaint iff sha 11 a produce the records 0 r the earlier EEOC action. including the records orIhe settlement with regard thereto. to the COUl11oran i'l ClIIIICI'lI inspection within 20 days of the date of thIS order. Thereafter, the Court willll1ake a octcrminatioll <IS to the disclosure of same (in part or ill whole) to the parties to this action. Simi lady. With regard to plall11iFrs demands concerning defendant Amelia '5 "teIl11lnatJOn" from Accretive (i.e .. document demand numbered "21" and intelTogatory numbered "Ir), 10 the extent any arc in the possession of defendant Amelia, same shall be produced to the Courl for an 1/1 ((I/1/ero inspection within 20 days of the date of this order. Thereafter, the Court will make a cctellnination as 10 their relevance to thIS action and whether sallle will be subject to the disclosure [* 6] ·Hiller v. Amelia and Collie Hndex No.: 36269/2009 lPage 6 (in pan or 111 whole) to the parties in thIs actIon. Dated: I I;u/;· ,; If' . , j; I ( ·-L t .'..({;._ : ~'C ., ~ ~ /) ):~_ (-Co -( IlON. WILLIAM B. REIlOLlNI, J.S.c. ___ FINALDlSPOSITION_~X~ NON·FlNAL DISPOSITION '.'L. '-.., [* 7] RIDER A.ttorncvs for PI,lllltlfT: Russo, Karl, WidmaIer & Cordano, 400 TO\vn Lmc Road, Suite] 70 Hauppauge, New York 11788 CJerk of the Court PLLC Bollll1gcr, Ruberry & C;arv(';y son \Vcst Madison Stret:::t, Suite 2300 ChICago, IllinoIs ()066] Attorney for Dcfcnd,mt Joseph V. AmcIJa: Kevin .1. Keating, Esq. 6()6 Old Country Road Gardcn City, New York 11530 /\ttorncv for Defendant Michael.!. Golde: Charles G. Elchmgcr, P.C. :601 Veterans Memorial Highway Suite 51 0 Islandia, NY 11749

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