Palmiero v 417 East 9th St. Assoc.

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Palmiero v 417 East 9th St. Assoc. 2013 NY Slip Op 32574(U) October 17, 2013 Sup Ct, New York County Docket Number: 106138/2010 Judge: Eileen A. Rakower 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. SCANNED ON 10/22/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. EILEEN A. RAKO\'VER PART - - - PRESENT: Justice Index Number: 106138/2010 PALMIERO, JOHN vs. 417 EAST 9TH STREET ASSOCIATES SEQUENCE NUMBER : 003 INDEX NO. ----- MOTION DATE _ _ __ MOTION SEQ. NO. _ __ STRIKE ANSWER The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits----------------- Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). l "'?,,.. I No(s). ::J I No(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w () j:: U) :::> .., 0 IC w D&t1UED IW ACCORDANCE wtTM · ACCOllf>ANYING DECISION I ORDER a:: a:: w w LL a:: ~~ ...J z f\LEO :::> 0 LL U) I- <( () w w a:: g; (!) w ::1 oc\ 2 21tln w z a:: "' 0 - 3: R\<.'S Qff\CE couN1~~~yoR\<. ~ ~ ~ w z ::r: 0 1- §a:: ~ ~ ~ HON. EILEEN A. )~ Dated: _ _ 1_"1_.k--'r (o_t'-- --., ,J.S.C. RAKO~/llER 1. CHECK ONE: ..................................................................... D CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0DENIED 0 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DooNOTPOST i£1° NON-FINAL DISPOSITION OGRAJ,.~D !N PART DoTHER 0 SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. EILEEN A. RAKOWER PART 15 Justice JOHN PALMIERO AND JOHN PALMIERO AS TEMPORARY GUARDIAN OF HIS SON JOHN PALMIERO, 106138/2010 INDEX NO. Plaintiffs, MOTION DATE 3 MOTION SEQ. NO. -v- 417 EAST grH STREET ASSOCIATES, LLC, JAKOBSON PROPERTIES, LLC., PETER JAKOBSON, PETER JAKOBSON, JR., THOMAS C. TUNG AND CD DESIGN, INC., MOTION CAL. NO. Defendants. 417 EAST grH STREET ASSOCIATES, LLC., JAKOBSON PROPERTIES, LLC., PETER JAKOBSON, PETER JAKOBSON, JR., FILED OCT 2 2 2013 Third-Party Plaintiffs, COUNTY CLERK'S OFFICE NEW YORK -vDAVID MAHLER, Third-Party Defendant. The following papers, numbered 1 to _ _ were read on this motion for/to PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1 2 Answer - 3 Affidavits - Exhibits - - - - - - - - - - - - - - Replying Affidavits The instant action is brought to recover for injuries allegedly sustained by Plaintiff caused by fire and smoke, at premises located at 417 East 9th Street, New York, New York. Plaintiff alleges that he was unable to escape the fire due to lack of the required means of egress. The premises were owned and managed by defendants 417 East 9th Street Associates and Jakobson Properties, LLC (collectively, 1 [* 3] "Defendants"). Presently before the Court is plaintiffs motion pursuant to CPLR §3124 and §3126 to strike the answer of defendants 417 East 9th Street Associates, LLC, Jakobson Properties, LLC, Peter Jakobson and Peter Jakobson, Jr. based on their alleged failure to comply with the Court Order dated March 19, 2013, which required said Defendants to provide discovery responses to Plaintiffs Post-EBT Notices for Discovery and Inspection of January 9, 2013 and January 10, 2013 within 30 days. On December 4, 2012 and December 18, 2012, a deposition of Peter Jakobson Jr. was held. On January 9, 2013 and January 10, 2013, Plaintiff served its Post-EBT Notice for Discovery and Inspection on Defendants 417 East 9th Street Associates and Jakobson Properties, LLC. On March 19, 2013, a Compliance Conference Order was entered requiring Defendants to provide discovery responses to Plaintiffs Post-EBT Notices for Discovery and Inspection of January 9, 2013 and January 10, 2013 within thirty days. In response, on March 22, 2013, Defendants provided eight responses and seventeen objections. Plaintiff contends that the objections were untimely and consist only of blanket objections lacking specificity. CPLR §3101(a) provides that "[t]here shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Here, the subject document demands requested by Plaintiffs first set of Post EBT demands relate to the building in which Plaintiff was injured and the entities responsible for said and include the following: 1. 2. 3. 4. 5. 6. The proper name of the entity: 'The Peter Jakobson 1997 Qualified Annuity Trust.' Date 417 Defendants acquired 418 E. 9th Street, New York, NY. Date 417 East 9th Street Associates, LLC, was formed. Date 417 East 9th Street Associates, LLC was formed. Names of the limited partners in 417 East 9th Street Associates, LP. "Real Estate" Closing File" maintained by Defendants for 417 East 9th 2 [* 4] 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Street, New York, NY (hereinafter the "Subject Premises"). "Financing File" for the Subject Premises. "Lease File" for the Subject Premises. Name, address and telephone person, persons and/or entity employed to perform daily cleaning and/or maintenance of the Subject Premises at the time of the fire of December 3rd, 2009. Copies of any and all paychecks or payroll records issued from January 2009 to on or about the time of the fire ... by defendants ... or the "Payroll Company" Names, addresses and telephone numbers of all the employees in the Property Management Department from January to December 2009 including but not limited to: (a) property manager; (b) assistant junior property manager; (c) administrative assistant. Names, addresses and telephone numbers of the entity used to issue payroll and maintain payroll records in 2009 for: (a) property management dept.; (b) employees who worked or were responsible for the Subject Premises. Name, address and telephone numbers of the persons and/or entity employed to perform daily cleaning and/or maintenance of the Subject Premises from January to December 2009. Copy of the contract with (i) CD Design, Inc. (ii) Central Development Housing and/or (iii) Sam Wu with respect to the repairs to Apartment 1 located at the Subject Premises. Copies of any documents, including but not limited to records, invoices, photographs taken by any parties in connection with the remediation after the fire ... Any and all photographs of Apartment 1 ... pre and post date ofloss. Copy of the "Lease Package" that was provided to Plaintiff at the time of the signing of the lease ... List of other units located in the Subject Premises that were directly above Apt. 1. List of tenants who lived at the loss location ... as of the date of the loss ... In their responses, Defendants objected to Demands No. 1-9, 12-15, 18-19 with the following form objection: "Objection; burdensome, and irrelevant, and not calculated to lead to material evidence." Defendants answered demands Nos. 10 and 3 [* 5] 11, referred Plaintiffs to their previous responses with respect to No. 16, and produced documents in response to No. 15. Defendants contend that Plaintiff has failed to demonstrate that the information requested will lead to material evidence. Plaintiff's Second Post EBT demands also pertained to the subject building and apartment, including the following demands: request for Notice to Cure sent to Plaintiff, .color copies of photographs taken before date of loss, last known address of leasing administrator Veena Vong, incident report prepared, lease file of prior tenant, and tenant file for the apartment leased by Plaintiff and third party defendant David Mahler. Here, Defendants objected to Plaintiffs request for the lease file of the prior tenant of Plaintiff's apartment (Request No. 5) with a blanket objection. CPLR §31 Ol(a) generally provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has held that the term "material and necessary" is to be given a liberal interpretation in favor of the disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity," and that "[t]he test is one of usefulness and reason" (Allen v. CromwellCollier Publishing Co., 21N.Y.2d403, 406 [1968]). However, a party is not required to respond to discovery demands which are "palpably improper." A demand is palpably improper if it seeks information which is irrelevant or confidential, or is overbroad and unduly burdensome (Gilman & Ciocia, Inc. v. Walsh, 2007 NY Slip Op 8410, *1 [2nd Dept. 2007]). Here, in light ofCPLR §3101(a) which provides that "[t]here shall be full disclosure of all matters material and necessary in the prosecution or defense of an action" and the documents demanded by Plaintiff (with the exception of Plaintiffs' request for the lease file for the prior tenant of the subject apartment) pertain to the building where Plaintiff was injured, the entities which Plaintiff contends were responsible, and other information which Plaintiff contends bear on his claims, Defendants were obligated to respond to Plaintiffs' Post-EBT demands, and to date, have failed to do so. However, as for demand for the "lease file" for the prior tenant of plaintiff John Palmiero' s apartment, Plaintiffs have failed to demonstrate that this information will lead to evidence material and necessary for the prosecution of this action. Wherefore, it is hereby 4 [* 6] ORDERED that plaintiffs' motion to strike defendants' answer is denied; and it is further ORDERED that defendants 417 East 9th Street Associates and Jakobson Properties, LLC are directed to respond to Plaintiffs' January 9, 2013 and January 10, 2013 PostEBT demands with the exception of Plaintiffs' demand for the lease file of the prior tenant (Request No. 5 of Second Post EBT Demands) within 30 DAYS of receipt of a copy of this order with notice of entry thereof; and it is further ORDERED that all parties are reminded that they must appear for their scheduled conference at 80 Centre Street, Room 327, on November 26, 2013 at 9:30 a.m. This constitutes the decision and order of the court. All other relief requested is denied. Dated: 10/11/aoJ3 HON. EILEEN A. RAKO'JO!ff{:. Check one: FINAL DISPOSITION Check if appropriate: 0 X NON-FINAL DISPOSITION DO NOT POST D REFERENCE FILED OCT 2 2 2013 COUNTY CLERK'S OFFICE NEW YORK 5

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