Encalada v CPS1 Realty LP

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Encalada v CPS1 Realty LP 2014 NY Slip Op 31475(U) June 5, 2014 Sup Ct, New York County Docket Number: 104782/2007 Judge: Barbara Jaffe 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. sc4'1,~")i,ti1e:@-:r------. . .-~~------....--[* 1] SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY BARBARA JAFFE J.S.C. PRESENT: PART Justice Index Number: 104782/2007 I). /0'f7~Jf t-- ENCALADA. ANGEL INDEXNO vs. MOTION DATE _ _ __ CPS 1 REALTY SEQUENCE NUMBER : 008 · MOTION SEQ. NO. (YO~ QUASH SUBPOENA. FIX CONDITIONS The following papers, numbered 1 to _ _ , were read on this motion to/for _ _Q-""r"d"""o..Sb+-"'-Sv ~......,...~-· _,,;,,_ _ __ ......... ..... ...;:.~-+. Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - Exhibits________________ Replying A f f i d a v i t s _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I No{s)._ _ _ __ I No{s). - - - - I No(s). - - - - - Upon the foregoing papers, It is ordered that this motion.is w (.) ~ => . .., e Q w 0::: 0::: w u.. w 0::: ¢ ¢ >- ..J ~ ..J ::.::> 0 z u.. <( I- "' (.) w ·w o::: a. <!) FILED ·f3 z 0::: ~ ~o w Cf) ..J ..J JUN 102014 0 (.) u.. <( -w z :x: 0 1j:: 0::: COUNlY CLERK'S OFFICE NEW YORK Oo :e u.. _____."""""-...........---~-'' J.S.C. Dated: BARBARA JAFFE . 1. CHECK ONE: ....................................................................... D J CASE DISPOSED 2. CHECK AS APPROPRIATE: .............;............. MOTION IS; 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ . ~DENIED 0 SETTLE ORDER 0 00 NOT POST NON-FINAL OISPosf-r1tM· 0 0 0 OTHER GRANTED IN PART SUBMIT OR.PER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12 ---------------------------------------------------------------------------x Index No. 104 782/2007 ANGEL ENCALADA and MART A ENCALADA, Mot. seq. no. 008 Plaintiffs, DECISION AND ORDER - against - CPSl REALTY LP, CPS 1 REALTY GP LLC, EL-AD PROPERTIES NY LLC, TISHMAN CONSTRUCTION CORPORATION OF NEW YORK and R.P. BRENNAN GENERAL CONTRACTORS & BUILDERS, INC., Defendants. ---------------------------------------------------------------------------x CPS 1 REALTY LP, CPS 1 REALTY GP LLC, EL-AD PROPERTIES NY LLC, TISHMAN CONSTRUCTION CORPORATION OF NEW YORK and R.P. BRENNAN GENERAL CONTRACTORS & BUILDERS, INC., Third-Party Plaintiffs, F ~ l ED JUN 1 0 2014 COUNTY CLERK'S OFFICE NEW YORK -against- WALDO RF HOLDING CORPORATION, Third-Party Defendant. ---------------------------------------------------------------------------x BARBARA JAFFE, J.: For third-party plaintiffs: Matthew Stabile, Esq. Frenkel Lambert et al. 1 Whitehall St., 20'h fl. New York, NY 10004. 212-344-3100 For third-party defendant: Howard B. Cohen, Esq. The Deiorio Law Group, PLLC 800 Westchester Ave., Ste. S-608 Rye Brook, New York 10573 914-696-5555 Third-party defendant Waldorf moves for an order quashing third-party plaintiffs' subpoena to Sterling National Bank, suppressing and ordering the return of the items provided, and precluding their use. Third-party plaintiffs oppose. [* 3] I. BACKGROUND By summons and complaint dated January 18, 2007, third-party plaintiffs commenced this action seeking indemnification from Waldorf for losses arising from a personal injury action brought by plaintiffs Angel Encalada and Marta Encalada. (Affirmation of Howard B. Cohen, Esq., dated Oct. 3, 2013 [Cohen Aff.], Exh. C). By order dated May 11, 2009, another justice of this court granted third-party plaintiffs' motion for a default judgment on all of their causes of action, and on September 9, 2011, a judgment of $479,126. 70 was entered against Waldorf. By decision and order dated July 19, 2013, I denied Waldorfs motion to vacate the default judgment. (Id., Exh. D). On August 16, 2013, Waldorf filed a notice of its appeal of my order. (Id.). Thereafter, third-party plaintiffs, without providing notice to Waldorf, served Sterling with what it called an information subpoena, dated August 19, 2013, asking whether Waldorf had provided it with a financial statement, and, if so, "[w ]hat assets are disclosed therein (or in the alternative supply a copy thereof)?" By response dated September 12, 2013, Sterling produced a financial statement of Waldorf which includes financial information relating to three nonparties. (Cohen Aff., Exh. A). II. CONTENTIONS Waldorf contends that third-party plaintiffs' request for a document in an information subpoena and their failure to provide notice of it were improper and warrant preclusion of Sterling's response. (Cohen Aff.). Third-party plaintiffs deny any obligation to notify Waldorf of the subpoena, as Waldorf is no longer a pariy. While they did not specifically request information concerning nonparties, third-party plaintiffs maintain that the information is relevant to the enforcement of the judgment. (Affirmation and Memorandum of Law of Matthew Stabile, Esq., 2 [* 4] dated Dec. 23, 2013). In reply, Waldorf asserts that as it filed a notice of appeal, the action still pends, and thus, pursuant to CPLR 2303, it was entitled to notice of the subpoena. It also maintains that thirdparty plaintiffs' allegation that it is closely related to the nonparties is too vague to establish relevance of the information relating to the nonparties. (Reply Affirmation, dated Jan. 16, 2014). III. ANALYSIS A Failure to notify Waldorf Article 52 of the CPLR governs the enforcement of money judgments. Pursuant to CPLR 5223, a judgment creditor seeking to enforce a money judgment may subpoena any person from entry of the judgment up until its satisfaction or vacatur. (See also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 5223). A judgment creditor may subpoena a person to appear for a deposition (CPLR 5224[a][l]), to produce records (CPLR 5224[a][2] [subpoena duces tecum]), and to answer questions (CPLR 5224[a][3] [information subpoena]). Neither CPLR 5223 nor CPLR 5224 requires that the judgment debtor be notified of the subpoena. (Compare CPLR 2303[a] ["A copy of any subpoena duces tecum served in a pending civil judicial proceeding shall also be served ... on each party who has appeared in the civil judicial proceeding so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things."], and CPLR 3120[3] ["The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof."]). 3 [* 5] As the discovery provisions of Article 52 govern here, there is no basis for reading into them the notice requirement of CPLR 2303(a). (McKinney's Statutes§ 74 ["A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended."]; 3A West's MicKinney's Forms Civil Practice Law and Rules § 8:262 [CPLR 2303(a) inapplicable to postjudgment enforcement]; Commonwealth of the Northern Mariana Islands v Canadian Imperial Bank of Commerce, 21 NY3d 55, 62 [2013] ["we cannot read into the statute that which was specifically omitted by the legislature"]; 36 Siegel's Practice Review 2 [Sept 1995] [due process requirements generally apply prejudgment; once defendant has lost on merits, "his day in court is over"]; cf Goldman & Greenbaum, P.C. v McKay, Sup Ct, New York County, October 4, 2004, Feinman, J., index No. 0600452/95 [observing that sponsor to amendment of CPLR 2303(a) requiring notice to all parties exempted from it subpoenas issued to enforce judgments; otherwise finding action not pending postjudgment]; ITT Commercial Finance Corp. v Bailey, 166 Misc 2d 24, 26-27 [Sup Ct, Chautauqua County 1995] [motion to prohibit defendant from attending postjudgment deposition granted; judgment debtor has no right to intervene in postjudgment discovery]). And, given the notice provisions otherwise set forth in Article 52 (see e.g. CPLR 5226-27), the Legislature's failure to include a notice requirement in CPLR 5223 and 5224 indicates that the omission was intentional. As CPLR 2303(a) has no relevance here, neither does Waldorf's appeal of my July 19, 2013 decision and order. And, whether the subpoena issued here constitutes an information subpoena or a subpoena duces tecum, is also irrelevant. 4 [* 6] B. Motion to quash A motion to quash a subpoena is governed by CPLR 2304. Given New York's policy of liberal discovery, the movant bears the burden of showing that the material responsive to the subpoena is utterly irrelevant, or that the futility of uncovering anything legitimate is inevitable or obvious. (Kapon v Koch, _NE3d _, 2014 NY Slip Op 02327, *4-5 [2014], at Tech. ]vfulti Sources, S.A. v Stack Global Holdings, Inc., 44 AD3d 931, 932 [2d Dept 2007); Velez v Hunts Point lvfulti-Serv. Ctr. Inc., 29 AD3d 104, 112 [1st Dept 2006]). And, it is contrary to public policy to frustrate efforts to enforce a judgment. (U.S. Bank Nat. Ass 'n v APP Intern. Fin. Co., 100AD3d 179, 183 [l51 Dept2012]). Pmsuant to CPLR 5223, a creditor may discover "all matter relevant to the satisfaction of the judgment." The judgment creditor is entitled to broad disclosure from entities with knowledge of the debtor's property. (Id.; Gryphon Dom. VI, LLC v GBR Info. Services, Inc., 29 AD3d 392, 393 [l51 Dept 2006]). Here, Waldorf makes no showing that the financial statement provided by Sterling in response to the subpoena is irrelevant or not otherwise subject to disclosure. That the statement contains information concerning other entities does not sustain Waldorf s burden. (See Practice Commentaries, CPLR 5223 Ooint income tax filing discoverable even if one spouse is debtor]; Tech. lvfulti Sources, 44 AD3d at 932-33 [motion to quash postjudgment subpoena served on business sharing ownership, management, and address with judgment debtor properly denied]). IV. CONCLUSION Accordingly, it is hereby ORDERED, that third party-defendant Waldorf Holding Corporation's motion to quash 5 [* 7] third-party plaintiffs' subpoena dated August 19, 2013 is denied in its entirety. v/ Barbara Jaffe, SC DATED: June 5, 2014 New York, New York { \ .i / '-·---- F m.L c D ~ . n JUN 102014 6

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