SBE Wall, LLC v New 44 Wall St., LLC

SBE Wall, LLC v New 44 Wall St., LLC 2015 NY Slip Op 05135 Decided on June 16, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 16, 2015
Acosta, J.P., Renwick, Moskowitz, Manzanet-Daniels, Feinman, JJ.
654038/12 -15462N 15461 15460

[*1] SBE Wall, LLC, et al., Plaintiffs-Respondents,

v

New 44 Wall Street, LLC, et al., Defendants-Appellants.

Franzino & Scher, LLC, New York (Davida S. Scher of counsel), for appellant.

Russ & Russ, P.C., Massapequa (Jay Edmund Russ of counsel), for respondent.

Orders, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 31, 2014, which (i) denied defendants' motion to strike plaintiffs' first demand for discovery, and to dispense with a privilege log, (ii) denied defendants' motion to strike a subpoena duces tecum, and vacate a subpoena ad testificandum, and (iii) granted in part plaintiffs' motion to compel production of documents, and (iv) awarded attorney's fees, unanimously affirmed, with costs.

The court did not abuse its discretion (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223 [1st Dept 2003]) in determining that plaintiff Baruch 44 Wall, LLC's first demand was not "palpably improper," that defendants should produce documents in response to plaintiff Baruch's first demand, and that defendants should provide an accompanying privilege log detailing the basis for withholding certain documents, whether for privilege or based upon Swedish or Norwegian law. The court also did not abuse its discretion by declining to strike and vacate the subpoena duces tecum and subpoena ad testificandum. Plaintiff Baruch was not precluded by the court's March 19, 2014 status conference order from making further discovery requests. As plaintiff Baruch did not file a cross appeal seeking reinstatement of the second demand, this Court does not reach that issue. Finally, the court's award of attorney's fees pursuant to 22 NYCRR § 130-1.1 shall not be disturbed, as the court properly found that defendants' arguments waivered between "absurdity and frivolity, and carry no weight with the court." This Court declines to award additional sanctions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 16, 2015

CLERK