Tribeca Space Mgrs., Inc. v Tribeca Mews Ltd.
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Tribeca Space Mgrs., Inc. v Tribeca Mews Ltd. 2017 NY Slip Op 31407(U) June 28, 2017 Supreme Court, New York County Docket Number: 653292/13 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/29/2017 03:42 PM 1] INDEX NO. 653292/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 06/29/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----------------------------------------x TRIBECA SPACE MANAGERS, Index No. INC., 653292/13 Plaintiff, Decision and Order -againstTRIBECA MEWS LTD., HAROLD THURMAN, BRAD THURMAN, AND 25 MYRENTCO LLC,, Defendants. ----------------------------------------x JENNIFER G. SCHECTER, J.: Motion sequence numbers 005 and 006 are consolidated for disposition. Plaintiff Tribeca Space Managers, Inc., an incorporated association of the owners of units in a building located at 25 Murray Street in Manhattan, commenced this action in 2013. alleges that condominium, Tribeca and its Mews Ltd., principals Myrentco LLC breached agreements the and and sponsor their of affiliate It the 25 fiduciary obligations based on, among other things, construction defects and failure to procure a permanent certificate of occupancy. Plaintiff also alleges that defendants engaged in fraudulent conveyances to render Tribeca Mews Ltd. insolvent and defeat any potential recovery. 2 of 5 [*FILED: NEW YORK COUNTY CLERK 06/29/2017 03:42 PM 2] INDEX NO. 653292/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 06/29/2017 Tribeca Space Managers, Inc. v Tribeca Mews LTD Index No. 653292/13 Page 2 Motion Sequence Number 005 In March 2014, Melvin Brosterman, a partner at Stroock & Stroock Lavan & managers. LLP, was elected to plaintiff's board of In January 2015, Mr. Brosterman filed a notice of appearance in this action and he is the lead trial counsel. Defendants never sought to depose Mr. Brosterman. In fact, they ultimately waived their rights to depose any witnesses by failing to timely conduct examinations before trial. In April 2017, defendants served a trial subpoena on Mr. Brosterman, testimony who remains on plaintiff's board, at trial. They also subpoenaed to compel his Michael Cohen, another member of plaintiff's board who was on the board even before this action was commenced. Plaintiff moves for a protective order and to quash the subpoena granted. served on Mr. Brosterman. Plaintiff's motion is On this record, defendants have not shown any need for Mr. Brosterman's testimony nor have they shown that they cannot get any evidence sought from Michael Cohen. Because defendants can obtain trial testimony from Mr. Cohen, there is no basis for requiring Mr. Brosterman to serve as a witness. If it is later determined by 3 of 5 the trial judge that Mr. [*FILED: NEW YORK COUNTY CLERK 06/29/2017 03:42 PM 3] NYSCEF DOC. NO. 197 INDEX NO. 653292/2013 RECEIVED NYSCEF: 06/29/2017 Tribeca Space Managers, Brosterman' s Index No. 653292/13 Page 3 Inc. v Tribeca Mews LTD testimony is essential to the defense of the action, an appropriate application may be made at that time. Motion Seguence Number 006 Plaintiff's motion and defendants' cross-motion to preclude expert testimony are both denied. The parties' preliminary conference order (PCO) mandated that "expert disclosure . last party EBT" be exchanged 90 days following (Affirmation in Opposition and in Support of Cross-Motion [Opp], Ex A at #5) It did not require a party to demand expert disclosure as a prerequisite for obtaining it. Despite the terms of the PCO, however, both parties waited until May 2017 to serve expert disclosure. Plaintiff incorrectly maintains that it had no obligation to timely exchange expert disclosure because defendant did not request it and that its disclosure of the Thornton Tomasetti (TT) report, which was referenced in the complaint, along with counsel's mention at the preliminary conference that TT would be its expert requirements. at trial satisfied its expert disclosure Defendant's argument--that it had no obligation to exchange expert disclosure because party depositions were 4 of 5 [*FILED: NEW YORK COUNTY CLERK 06/29/2017 03:42 PM 4] INDEX NO. 653292/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 06/29/2017 Tribeca Space Managers, Inc. Index No. v Tribeca Mews LTD never completed--is wrong too. 653292/13 Page 4 Clearly, defendant was never to be rewarded for its lack of diligence in failing to timely conduct by depositions disclosure whatsoever. having Rather, no deadline for expert the 90-day deadline ran from March 31, 2015, which was the last dite on which a "party EBT" could be conducted. In the end, on this record, preclusion of either party's experts is denied. good cause for Neither party's compliance with the PCO is allowing both parties' late disclosures.' Plaintiff had informal knowledge about defendants' potential experts since July 2016 and formal knowledge of the experts, who are being called to rebut plaintiff's experts, more than 60 days before trial. Plaintiff, moreover, was offered an adjournment of the trial date if it needed one and declined. Accordingly, it is ORDERED that plaintiff's motion to quash the subpoena served on Mr. Brosterman (sequence number 005) is GRANTED; and it is further ORDERED that plaintiff's motion to preclude defendants' experts and defendants' cross-motion to preclude plaintiff's experts are denied. This is the decision and order Dated: June 28, 2017 HON. JEN 5 of 5
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