Whalen v Donna Karan Intl., Inc.

Annotate this Case

Download PDF

Whalen v Donna Karan Intl., Inc. 2011 NY Slip Op 33384(U) December 9, 2011 Sup Ct, NY County Docket Number: 108317/09 Judge: Joan M. Kenney 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. ANNEDON I212212011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JOAN M. KENNEY PRESENT: J.S.C. PART JusUco % Index Number : 10831712009 WHALEN, JOAN MARIE vs. DONNA KARAN INTERNATIONAL SEQUENCE NUMBER : 002 - QUASH SUBPOENA, FIX CONDITIONS 1.l , wore read on thls rnotlon t Notice of MotlonlOrder to Show Cawis - Amdavit$ - Exhlbita Anawering Atndavlta - ExhlblG Tho following papen, numbond 1 to o w - INo($). I 7 INo($). P'-/3 INO(6). / Y Replylng Affldavlb Upon the foregoing papem, It Is ordered that thls motion is MOTION IS DECIDED IN ACCORDANCE WiTH THE AlTACHED MEMORANDUM DEClSlON Dtd a: e- 7, 20 I/ ..................................................................... 2. CHECK AS APPROPRIATE: .............. MOTION IS: 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ CASE DISPOSED GRANTED P~QDENIED SETTLE ORDER D DO NOT POST NON-FdJk0ISPOSITION 0QRANTED IN PART 0OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] DECISION AND ORDER Lndex Number: 108317/09 Cal.: 11/010/2011 Motion Seq. No.: 002 Amearances Bi<demann, Reif, Hoenig & Ruff, P.C. Attorneys for Defendants 885 York, New York 10022 NewThird Avenue, 16th Floor Bany McTiernan & Moore Attorney for Plaintiff DEC 1 4 2011 2 Rector Street CLERKIS New York, New YOrk 100%UNp/ NEW YORK0FFlCE Recitation, as required by CPLR 22 19(a), of the papers considered in review of this motion ' to quash: Papers Notice of Motion, Affirmation & Exhibits Affirmation in Opposition & Exhibits Reply Affirmation Numbered 1-7 8 - 13 14 In this personal injury action, plaintiffs, Joan Marie Whalen and Richard Whalen (collectively, the Whalens) seek an Order, pursuant to CPLR 2304, quashing a subpoena served upon aa Mr. Stephen M. Smith of Stephen M. Smith & Company, LLC (Smith) by defendants Donna K r n International, Inc., DKNY Madison and Plaza Madison Associates (collectively, DKNY). FACTUAL AND PROCEDURAL BACKGROUND Briefly, on January 14,2009, Mrs. Joan Marie Whalen (Mrs. Whalen) allegedly fell when she attempted to descend a two-step riser attached to a staircase at the Donna K r n retail store aa located at 655 Madison Avenue, New York, New York. The Whalens commenced this action claiming lost income from Mrs. Whalen's business, Joan Whalen Fine Art (Whalen Fine Art). It is undisputed that the Whalens also collectively own a company, Whalen Consulting Group I1(Whalen Consulting). When asked at Mrs. Whalen's deposition what economic losses she incurred individually or on behalf of Whalen Fine Art, Mrs. Whalen's attorney, Ms. Patricia Sullivan (Sullivan), repeatedly .. . . . . . . -. .. . . . . . ~ . . . - [* 3] objected on the grounds that it is probably a better question for a financial professional (see Deposition of Mrs. Joan Marie Whalen, Ex. 5 attached to opposition papers at 8 1-82) and (wewill leave that up to the accountants and financial people to answer (Whalen depo. at 1 1- 13). On September 19,2011, DKNY served a subpoena duces tecum and ad testificadum (the Smith subpoena) on the Whalens accountant, Smith. Although the Whalens assert in their motion papers that, if deposed, Smith s will testify as an expert, it is undisputed that the Whalens have not served a formal notice, pursuant to CPLR 3 101 Id), that Smith will be called as an expert at trial. It is undisputed that the Whalens produced a letter, dated July 3 1,2009, from Smith which lists the business income of Mrs. Whalen and Whalen Fine Arts from 2004 through 2009 (see Ex. 2 attached to notice of motion). ARGUMENTS The Whalens argue that the Smith subpoena should be quashed because:l) the Smith subpoena is procedurally defective based on DKNY s failure to notice all parties of the subpoena and state a reason why Smith s deposition was sought; and 2) DKNY has failed to demonstrate special circumstances justifying a deposition of Smith when Mrs. Whalen has already testified to her loss of earnings, produced tax returns for Whalen Consulting Group TI, and Smith may be called as an expert at trial. DKNY contends that this Court deny the motion to quash since: 1) Whalens counsel was noticed as soon as possible after Smith was served; 2) defects, if any, in the subpoena s notice and remons are not fatal; 3) Smith s deposition is material and necessary to the Whalens loss of earnings claim; 4) a showing of (special circumstances is no longer necessary since Smith w s never a formally noticed as an expert; and 5) even if the special circumstances showing applies, both Mrs. Whalen and counsel deferred inquiries regarding her lost income claim to Smith at Mrs. Whalen s deposition. QISCU$$ION When subpoenaing a nonparty witness to appear for deposition and produce documents in conjunction with that deposition, a subpoena pursuant to CPLR 321 1 is the appropriate device (see 2 [* 4] V e l a v Hunrs Point Multi-Service Ctr., Inc., 29 AD3d 104, 111 [lst Dept 20061). A copy of this subpoena must be promptly served on all parties who have appeared in the civil action (CPLR 2303[a]). Although this subpoena must also state the circumstances or reasons why disclosure is sought or required pursuant to CPLR 3 101 (a) ( ) the First Department has held that, upon a 4, showing that the discovery is needed, relevant, and would not constitute an undue burden, the failure to comply with 5 3 101 (a) (4) s notice requirements is not fatally defective since the purpose of such a requirement is presumably to afford a nonparty who has no idea of the parties dispute or a party affected by such request an opportunity to decide how to respond (see Velez,29 AD3d at 1 1 1). Here, the Whalens have failed to demonstrate that the Smith subpoena is procedurally defective based on either the timing of the notice to the Whalen s counsel or the subpoena s purported failure to state the reasons for seeking inter alia Smith s deposition. As to timing, the Smith subpoena was served on September 19,2011 for Smith s appearance on October 16,2011 (see Smith subpoena and Affidavit of Service of Andre Meisel, Ex. 1 attached to opposition papers). Counsel for DKNY swears by affirmation that she did not receive notification of completion of service until the latter portion of the week of September 19,2011 (see Affirmation of Ms. Susan White, Esq. attached to opposition papers 7 6). Ms. Katherine H r a ,Esq., counsel ags for the w a l e n s , admits in her affirmation that she was first notified of the Smith subpoena on September 28,201 1 - more than two weeks before Smith was subpoenaed to appear (see Hargas Affirm. attached to notice of motion 7 3). Based on the chronology of events and the Whalens failure to support the timeliness argument in its reply papers with caselaw, this Court finds that the parties were promptly served with notice pursuant to CPLR 2303 (a). Additionally, DKNY has sufficiently demonstrated that the testimony of Smith is relevant to the Whalens lost earnings claim and will assist DKNY s counsel in preparing for trial with respect to damages (see In re New York County DES Litigation, 171 AD2d 119, 123-124 [ 1st Dept 1991I). At her deposition, Mrs. Whalen stated that she lacked knowledge about her 2009 lost income and, when asked about tx returns to support this claim, deferred defense counsel to Smith. a Indeed, even Mrs. Whalen s counsel deferred questions regarding Mrs. Whalen s loss earnings claim 3 [* 5] to accountants and financial people to answer. These statements amount to an acknowledgment by both Mrs. Whalen and her counsel that it was Smith, not herself, who was in the best position to testify as to the lost income from Whalen Fine Art. Although the Whalens eventually provided Internal Revenue Service authorizations for the Whalens personal and business income tax returns for 2004 through 2010 and their corporate income tax returns for 1997 through 2009, Ms. Hargas states by affirmation that these tax returns on their face do not distinguish between revenue generated by Whalen Fine Arts, from its parent company, Whalen Consulting Group I1 (see Hargas A f f m . 34). While these tax returns were not appended to the opposition papers, the Whalens failed to attach those tax returns to their reply papers to rehabilitate Mrs. Hargas assertions that Smith is in the best position to distinguish between the incomes of these companies (see e.g. Velez, Inc., 29 AD3d at 112 [ burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoened ]). Therefore, this Court finds adequate support for DKNY s argument that Smith s testimony is material and necessary to this case. The parties dispute whether the nature of Smith s testimony will be one of an expert or fact and if DKNY must make a showing of special circumstances to justify the S i h subpoena. mt However, this Court finds that, even if Smith s testimony is expert in nature, DKNY has abrogated its need to demonstrate special circumstances since both Mrs. Whalen and her counsel deferred DKNY s loss of earnings inquiries to Smith - the same individual whose subpoena the Whalens now seek to quash (see Tunnenbaurn v City ofNew Ymk, 30 AD3d 357,358-359 [ 1st Dept 20061 [finding disclosure to be permissible in an instance where the information sought was relevant and could not be obtained from other sources ]). Thus, the Whalens have failed to demonstrate their entitlement to the relief sought. Accordingly, it is: ORDERED that plaintiffs motion is denied in its entirety; and it is further ORDERED that the parties are directed to proceed to mediation. Dated: December 9,201 J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.