L.F. v K.F.

[*1] L.F. v K.F. 2010 NY Slip Op 52336(U) [30 Misc 3d 1209(A)] Decided on December 10, 2010 Supreme Court, Nassau County Falanga, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2010
Supreme Court, Nassau County

L.F., Plaintiff,

against

K.F., Defendant.



07-201370



Counsel for non-party movants: Thomas Torto, Esq. New York, New York

Counsel for plaintiff wife: William C. Ritter, Esq. New York, New York

Counsel for defendant husband: Dominic Barbara and Jordan Trager, Garden City, New York

Anthony J. Falanga, J.

The following papers were read on this motion:

Notice of Motion ..................................................1

Answering Affirmation........................................2

Reply Affirmation................................................3

Torto Reply Affirmation.....................................4

This is a motion, pursuant to CPLR §2304, to quash three (3) non-party trial Subpoenas Duces Tecum (requiring the production of books, papers and other things [ CPLR §2301]) and Ad Testificundum ( requiring the attendance of a person to testify [CPLR §2301]), dated September 9, 2010, issued to Thomas Torto, Esq. Michael Duffin, Jr., the brother of the defendant, and Accurate Metal Slitting Corp. Mr. Torto, appearing pro se and as the attorney for Michael Duffin, Jr. and Accurate Metal Slitting Corp., states that the trial subpoenas are overbroad, seek privileged information and are part of a "fishing expedition" to obtain materials that could have been obtained in pretrial disclosure. It is his position, essentially the same as that asserted by the defendant in his Reply Affirmation, that the time for pretrial discovery has passed with the filing of the Note of Issue and that the trial subpoenas improperly seek discovery items and should be quashed.

As set forth in an affidavit submitted by the wife on a prior motion, dated June 9, 2010, she alleges that, upon the death of the defendant husband's father, Michael Duffin Sr., in April 2005, the husband inherited a 25% interest in Accurate Metal Slitting Corp., a lucrative family business, as well as related real estate owned by the corporation consisting of seven (7) parcels of real property located in Kings County, New York. Upon information and belief, the real estate [*2]was worth approximately $2,100,000.00 and the husband's 25% share was worth approximately $500,000.00. Notwithstanding same, the husband sold his interest in the real estate to his brother, Michael Duffin, Jr. (previously a 50% owner in the company with his father) , for $125,000.00 and received no payment for his share in the operating company. It is the wife's position that, although this was the husband's separate property, the income and dividends from these assets would have been available for the payment of maintenance and child support, and that the transaction was part of a scheme by the husband to impoverish himself and diminish his ability to pay his support obligations. Counsel for the wife points out that the husband is currently in arrears in the payment of maintenance in the sum of $9,810.00, and the Court notes that motions for contempt and for arrears against the husband have been referred to the trial, as has the husband's motion for a downward modification of his support obligations . It cannot be disputed that the income and resources of the husband are in sharp contention. Counsel for the wife asserts that there can be no fair trial without the subpoenaed documents which include data concerning the Estate of Michael Duffin Sr. as it relates to the husband's interest in the estate, for which Mr. Torto was the attorney, and payroll records from Accurate Metal Slitting Corp. as to the husband's income as well as information relating to the husband's transfer of his interest in said corporation. Additionally, the testimony of Michael Duffin, Jr. is sought, who, as a result of the transaction with the husband, is now the President and sole stockholder of Accurate Metal Slitting Corp. The wife states that the husband and his brother have complete freedom to manipulate the husband's pay and benefits at the corporation, which also deals in considerable sums of cash revenue, and that the brother should testify about the corporate transactions.

In reply, both counsel for the husband and for the non-parties maintain that the wife is improperly seeking to engage in post Note of Issue discovery that should have been previously sought and that there is no justification for dragging Mr. Torto, Michael Griffin Jr., Accurate Metal, the Estate of Michael Griffin Sr. or its beneficiaries into this matrimonial litigation.

The Law

The standard to be applied on a motion to quash a subpoena is whether the requested information is "utterly irrelevant to any proper inquiry"( Ayubo v Eastern Kodak Company, Inc.,

158 AD2d 641, 551 NYS2d 944[2nd Dept. 1990]; Kimmel v. State of New York, 76 AD3d 188, 906 NYS2d 403 [4th Dept 2010]). A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of the issuer of the subpoena . . . As stated in People ex rel Hickox v. Hickox (64 AD2d 412, 413-414), "A subpoena duces tecum for use at a trial or hearing, the denial of a motion to quash such subpoena duces tecum, are not the equivalent of an order of disclosure. The subpoena merely directs the subpoenaed party to have the documents in court so the court may make appropriate direction with respect to the use of such documents".

(Ayubo v Eastern Kodak Company, Inc., supra). "An application to quash a subpoena should be [*3]granted [only] where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry.'" (Anheuser Busch, Inc. v. Abrams, 71 NY2d 327, 525 NYS2d 816, 520 NE2d 535 [C.A. 1988] [citations omitted). Proffered evidence before a trial judge is not to be limited by the scope of what passed between counsel in pretrial disclosure. For tactical, costs or other good reasons, a party may choose not to do extensive disclosure and yet may proceed to trial. They should not be limited because they did not take advantage of their pretrial rights. Thus, the grant of a motion to quash prematurely limits the power of the Trial Court to make appropriate directions with respect to the use of documents presented at trial ( see, Hickox v. Hickox, 64 AD2d 412, 410 NYS2d 81 [1st Dept. 1978]).

Upon the record before us, the Court cannot conclude that the subpoenaed information is "totally irrelevant" to the wife's claims. The subpoenas are appropriately limited to the time period from April 2005 following the father's death until the present time, and any issues as to confidentiality will be determined at the time of trial. Based on the foregoing it is hereby

ORDERED, that the motion to quash is denied and the movants must produce the records and appear to testify at trial. However, there shall be no disclosure of such records to adverse parties except to the extent that the Court shall direct, in the light of the circumstances then existing. Before permitting the disclosure of the records the Court shall hear oral argument and examine the records, in camera, and determine which parts, if any, are privileged or whether there are other valid objection. .

This constitutes the decision and order of the Court. The Trial of this matter is presently scheduled before the undersigned on February 1, 2011 at 9:30 a.m.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: December 10, 2010

Mineola, NY

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