Fulton v Kelly

Annotate this Case

Download PDF

Fulton v Kelly 2013 NY Slip Op 34227(U) October 8, 2013 Supreme Court, Queens County Docket Number: 20501/2010 Judge: Orin R. Kitzes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] 0501/201 0 ORDER SIGN ED age ,, ' I Short Form Order :I ./... . • . \-'' .' '-. . ii ··:> l · r·~ ow ~~u~u· . o NEW YORK SUPREME COURT - QUEENS COUNTY COMMERCIAL DIVISION Present: HONORABLE ORIN R. KITZES Justice ------------------------------- - -------x TIMOTHY FULTON, IA Part Index Number 17 20501/ 2010 Plaintiff , Motion Date July -againstJOHN KELLY, MICHAEL CHOLOWSKY , MATTHEW CRESCIMANNI and EMJAY ENVIRONMENTAL RECYCLING, LTD. Mot ' I Defendants. ---------------- ----- -- -- -------- ------x The following papers numbered 1 to _11._ read on this motion by defendant Matthew Crescimanni (Crescimanni ) to compel the deposition of non-party witness Louis C . Grassi, CPA pursuant to CPLR 3124; and cross motio n by non-party Grassi & Co, CPA ' s, P.C. (Grassi & Co ) and non-party Antoinette Trovato aka Antoinette Grasso , individually a n d as execu t o r for the Es t ate of Salvatore Trovato ( the Estate ) , for a protective order vacating the subpoena duces tecum served on non-party Grassi & Co on May 22, 20 13 pursu a n t t o CPLR 31 0 3. Papers Numbered Notice of Motion - Affidavits - Exhibits ......... 1-4 Notice of Cross Motion - Affidavits - Exhibits . . . 5-8 Answering Affidavits - Exhibits ..... . . . . . . . . . . . .. 9-11 Upon the foregoing papers it is ordered that t he motion and the cross motion are determined as follows: Defendant Crescimanni served a subpoena on Grassi & Co seeking pre-trial testimony and the produc t ion of financial statements and support ing documentation for Salv atore Trovato, Antoinette Trovato , and the Estate ; federal tax returns for Salvatore Trovato, Printed: 1/2/202 [* 2] 20501/2010 ORDER SIGNED Page 2 of' Antoinette Trovato, and the Estate relating to valuation of Emjay Environmental Recycling, Ltd. (Emjay) shares and/or interest or dividends and/or compensation received by Salvatore Trovato, Antoinette Trovato, and the Estate ; documen ts relating to the valuation of Emjay; and documents relating to the purchase and sale of shares of Em jay stock. The subpoena is limited to the period of February 1, 2010 to December 2012. Defendant Crescimanni asserts that the documents demanded are material, relevant and necessary in order to establ ish his crossclaims for fraud and unjust enrichment, that the docume n ts focus on the valuation of Emjay stock and the purchase and sale of Emjay stock, and that defendants John Kelly and Michael Cholowsky (Cholowsky) have testified that they do not have possession of relevant documents or lack personal knowledge of certain facts . Thus, it is claimed that it i s necessary to obtain the documents from another source , the non-party accounting firm. In opposition of the motion and in support of the cross motion for a protect i ve order, non-party Grassi & Co maintains that the documents and information sought in the subpoena are private and confidential, irre levant to this action , and pertain to a newly commenc ed action by defendant Crescimanni against Antoinette Tr o va to in h er capacity as admi nistrator of the Estate. In opposition to the cross - motion , defendant Crescimanni provides a joint financial statement for the 2010 tax year prepared by non-party Grassi & Co for Salvatore and Antoinette Trov ato that shows a 50% ownership interest i n Emj ay, a personal f i nancial statement from defendant Cholowsky that shows his 50% interest in Emjay, a limited good guy guar a nty, dated February 3, 2010, executed by defendant s Cholowsky and Crescimanni a nd plaintiff, and Emjay stock certificates, dated Febru ary 3 , 2010, issued to defendants Cholowsky and Crescimanni . CPLR 3101 requires full disclosure of " all evidence material and necessary to the prosecution or defense of an action. A party is required to produce those items which are in his possession , custody or control and which have been identified with sufficient specificity so as to permit the party to find, identify and produce the items sought. (CPLR 3120 [a] [l) [i] . ) In o rder to obtain discovery from a non - party pursuant to CPLR 310l(a) (4), the party seeking discovery must establish the presence of adequate special circumstances. ( see Cirale v BO Pine Street Corp. , 35 NY2d 113, 116-117 (1 974] .) Special circumstances may be found if it can be establ ished that the information sought t o be discovered c annot be obtained from other sources (O 'Neill v 2 Printed· 1/2/202C [* 3] ZU~U1/2 UlU ur<Ul:K :Slul'll:U ' 1-'age 3 of ·, Oakgrove Constr., 71 NY2d 521, 526 (1988); Anderson v Kamalian, 231 AD2d 659 [2d Dept 1996 ) l , but not merely by showing that the information sought might be relevant ( Cirale v 80 Pine Street Corp., supra; Anderson v Kamalian, supra ). A party's entitlement to discovery of material and necessary materials, is "tempered by the trial court's authority to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome, and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment , disadvantage, or other prejudice to any person or the courts" (Kooper v Kooper, 74 AD3d 6, 10 [2d Dept 2010)); see Tannenbaum v City of New York, 30 AD3d 357, 358-59 [1st Dept 2006)). In keeping with these principles, when discovery is sought from a non-party, the court considers whether the disclosure is warranted by examining whether the proponent of disclosure can obtain the evidence from sources other than the non-party (Reich v Reich, 36 AD3d 506, 507 [1st Dept 2007); Tannenbaum, 30 AD3d at 358-59; see Kooper, 74 AD3d at 18; but see Velez v Hunts Point Multi-Serv. Ctr., Inc . , 29 AD3d 1 04, 112 [1st Dept 2006)) . ...... ... Accordingly, the cross motion for a protect i ve order is granted to the extent that the portion of the subpoena duces t ecum which seeks tax returns is stricken at this time. In addition, production o f the financial statements and supporting documents shall be limited to the shares and/or interest in Emjay. Due to the "confidential and pri vate nature" (Roth v American Colonial Ins . Co., 159 AD2d 370 (1st Dept 1990]), disclosure of tax returns is disfavored, and defendant is required to establish that the information contained in the returns "is indispensable to the litigation and unavailable from ot her sources" (Briton v Knott Ho t els Corp., 111 AD2d 62, 63 [1st Dept 198 5); see also Haenel v November & November, 1 7 2 AD2d 182 [1st Dept 1991) ) , Here, defendant Crescimanni has failed to specify the particular information the returns will contain and its relevance, and has failed to explain why other sources of the information sought are inaccessible or likely to be unproductive . The motion to compel the deposi tion of non-party witness Louis Grassi, CPA is granted. Defendant Crescimanni has sustained his burden of establishing the existence of special circums tances excluding those documents subject of the protective order and has submitted evidence tending to show that other documents exist that are not obtainable from sources other than non-party accountants. c. 3 ... ;:.-,: Printed: 1/21202C [* 4] SIGNED age o The subpoena duces tecum, as limited by this complied with on or before November 15, 2013. The party witness shall confer and schedule the depo product ion on a day and time that is mutually gr Da t ed: order , shall be art'es and nonion a nd document e October 8, 2013 4 Printed: 1/2/202

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.