Faggione v Room Mate Hotel NY, Inc.

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Faggione v Room Mate Hotel NY, Inc. 2014 NY Slip Op 34060(U) June 10, 2014 Supreme Court, Queens County Docket Number: Index No. 701729/2013 Judge: Rudolph E. Greco, Jr. 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. INDEX NO. 701729/2013 FILED: QUEENS COUNTY CLERK 06/18/2014 NYSCEF DOC. NO. 35 Al RECEIVED NYSCEF: 06/18/2014 ~ U~' \ • , . ,1 ! '1 · :' . 1 1 . Order Short Fortn Form Order Short - . ~~ I!.._-,,-\·, . "" I . '. ' • ..I •\ r:-. . ••. ·- , ~ X,i · , I , f.l \ ~ J ! ~ •._ I . - . a. -~ ! COUNTY NEW QUEENS COUNTY COURT - QUEENS SUPREME COURT YORK SUPREME NEW YORK GRECO, JR. Present: RUDOLPH E. GRECO, HONORABL E RUDOLPH Present: HONORABLE Justice Justice lAS PART 32 IAS PART ------------------------------------------------------------------)( -------------------------------------------------X ----------------LAUREN F AGGI ONE, LAUREN FAGGIONE, 701729/2013 Index No.: No.: 701729/2013 Index Plaintiff, Plaintiff, 26, 2014 Motion March 26,2014 Dated: March Motion Dated: Cal. No.: 54 Cal. No.: Seq. No.: 2 Seq. No.: -against-against- HHC TS NY, INC. and HHC ROOM HOTEL NY, MATE HOTEL ROOM MATE entity), REIT (being aa fictitious fictitious entity), XYZ (being and )(YZ LLC, and REIT LLC, Defendants. Defendants. 2014 April 7, 2014 Motion Dated: April Motion Dated: Cal. No.:34 Cal. NO.:34 Seq. No.: 3 --------------------------------------------------------------------)( --------------------------------------------------------------------X quashing a The 13 read read on application for an order order quashing plaintiffss application on plaintiff to 13 numbered 1I to papers numbered following papers The following and imposing sanctions, subpoena pursuant to 92304 and and awarding awarding costs and/or imposing sanctions, (sequence (sequence 2); and costs and/or CPLR §2304 to CPLR subpoena pursuant LLC (HHS) REIT LLC HHC TS REIT defendant HHC against defendant plaintiffs for aa default (HHS) judgment against default judgment motion for unopposed motion plaintiffs unopposed (sequence 3). (sequence Papers Papers Numbered Numbered Affirmation, Order Show Cause, Cause, Good Good Faith Affirmation, Affirmation, Faith Affirmation, to Show Order to IU1t1 JUN ii bd /[ilti 1-5 JUN 1-5 .. ....................... Exhibits, Affidavit of Service ....................... Service of Exhibits, Affidavit COUNTYc 6-7 Opposition, Exhibits ............................................................. . Opposition, Exhibits ~-~ Q~~~~~ LERK ENS cCLERK 8 9 QUE Reply, Exhibit. ...................................................................... . Reply, Exhibit. OUNry . -COUNTY 10-13 Notice Motion, Affirmation, Exhibits ............................. ... Affirmation, Exhibits of Motion, Notice of L ._ f:: F: II L. £: Q eO motion are unopposed motion application and this application that this Upon ordered that and unopposed is ordered it is papers, it foregoing papers, the foregoing Upon the determined follows: as follows: determined as plaintiff 2013, when April 18, 2013, This action was when plaintiff sustained on April injuries sustained personal injuries for personal commenced for was commenced This action operated and/or owned Hotel owned and/or operated and/or allegedly of stairs stairs while at the Grace Grace Hotel and/or patron at while aa patron set of on aa set fell on allegedly fell complaint dated and complaint maintained by each or one one of of the defendants. A summons summons and dated May May 14, 2013 named defendants. the named each or maintained by along answer along their answer who served Mate) who was defendant Room (Room Mate) served their Inc. (Room NY, Inc. Hotel NY, Mate Hotel Room Mate on defendant served on was served June on was served HHS was with various on November II, 2013. 2013. Defendant Defendant HHS served June 11, II, November 11, demands on discovery demands various discovery with answer. failed has 2013 pursuant to CPLR 9311-a(a) and has failed to answer. §311-a(a) 2013 pursuant to CPLR was a demand demands was discovery demands Included demand for combined discovery Mate's combined Room Mate's defendant Room within defendant Included within referable records employment all for s employment records that specially requested "authorizations employment records referable "authorization requested employment records that specially Defendant's (see present", to the the plaintiff for five (5) years years prior of the accident accident to the the present", Defendant's date of the date to the prior to five (5) plaintiff for to 1I [* 1] 2014 by providing Opposition at at Exhibit Exhibit "A"). "A"). Plaintiff Plaintiff responded on February 19,2014 providing the authorizations authorizations February 19, responded on Opposition Defendant limited. significantly however, the dates and scope of the records authorized were significantly limited. Defendant were authorized records the of scope however, the dates and letters cover nevertheless these authorizations authorizations to to plaintiff's plaintiff s employer employer Bloomberg Bloomberg LLC, LLC, under under cover letters mailed these nevertheless mailed dated February February 21 and 26, 26, 2014. 2014. The The cover cover letters letters parroted the language language later later found found in the subpoena subpoena parroted the 21 and dated mailing this after that alleges counsel s duces tecum tecum for for all all employment employment records, records, .. Defendant' Defendant' counsel alleges that after this mailing their their duces resources manager paralegal Joanna Joanna Borrero Borrero received received aa call call from from the human resources manager at Bloomberg, Bloomberg, LP who who the human paralegal subpoena. a to pursuant records advised that corporate policy only allowed for release of employment records pursuant subpoena. employment of release for allowed only advised that corporate policy Later, when when Ms. Ms. Borrero Borrero asked asked aa representative representative of of the the human human resources resources department department to confirm confirm such such Later, policy. An policy in in writing, writing, she she was was likewise likewise advised advised that that doing doing so was against against company company policy. An affidavit affidavit policy of Joanna Joanna Borrero Borrero is is submitted submitted in in support support of of these these contentions. contentions. of motion to this motion In light light of of such such policy, policy, defendant defendant issued issued the the subpoena subpoena which which is the the subject subject of of this In Bloomberg LP LP requesting requesting production production of of plaintiff's plaintiff s employment employment file. On the the face of of such such subpoena subpoena Bloomberg a cover if unclear is It accident. the of date the was claimant's name and date of birth, as well as date of accident. it unclear if cover as well as birth, of date and name was claimant's plaintiff's to sent was letter accompanied accompanied the service of of the the subpoena subpoena on on Bloomberg copy was sent plaintiffs Bloomberg LP. A copy the service letter counsel who then requested requested withdrawal withdrawal of of the the subpoena subpoena claiming claiming it to be be overly overly broad broad in both both who then counsel was wages lost for claim the that content and time. Specifically, plaintiffs attorney highlighted that the claim lost wages was highlighted content and time. Specifically, plaintiffs attorney beyond was beyond limited in in the the bill bill of of particulars particulars to to the the one one week week she she missed missed following following the the accident, accident, and it was limited discipline, promotions, "applications, to the scope of such claim to request records related "applications, promotions, discipline, related records request to the scope of such claim suspensions, performance performance reviews, reviews, physical physical examinations, examinations, etc.", etc.", (see Plaintiff's Plaintiffs Affirmation Affirmation at suspensions, preliminary Exhibit "D"). "D"). A A further further argument argument raised raised against against use use of of the subpoena subpoena was the the impending impending preliminary Exhibit conference scheduled scheduled for for March March 10, 2014. 2014. conference Defendant points points out out that that despite despite plaintiffs plaintiffs limited limited lost lost wage wage claim, claim, she makes makes these these Defendant additional claims claims in in her her bill bill of of particulars: I) plaintiff plaintiff sustained sustained injuries injuries including including concussion concussion with with particulars: 1) additional loss of of consciousness consciousness and and amnesia; amnesia; 2) 2) that that such such injuries injuries are permanent permanent in nature nature and plaintiff plaintiff will will loss substantially further have anguish continue to experience pain pain as as aa result; 3) anxiety anxiety and and mental mental anguish have further substantially result; 3) to experience continue not limited prevented the the plaintiff from enjoying enjoying the normal fruits fruits of of her her activities, activities, including including not limited to the normal plaintiff from prevented days intermittent and work from social, educational and economic; 4) plaintiff missed one week from work intermittent days week one missed plaintiff 4) social, educational and economic; following week one thereafter; and and 5) 5) plaintiff plaintiff was was totally totally or or partially partially disabled disabled from from work work for week following the thereafter; accident and and intermittently intermittently thereafter thereafter to to date, date, (see Defendant's Defendant's Opposition Opposition at Exhibit Exhibit "B"). "B"). accident not did and to choose it device discovery Additionally, defendant argues that it was free to use discovery device choose not any use to free was it that Additionally, defendant argues have to wait until the the preliminary conference to do so. preliminary conference wait until have to In general general "a "a subpoena subpoena duces duces tecum tecum may may not not be be used used as as a fishing fishing expedition expedition for the the purposes purposes In of rather to compel but rather of discovery discovery or or to to ascertain ascertain the the existence existence of of evidence, evidence, but compel the the production production of specific specific of (People proceeding" judicial pending a in documents that are relevant and material to facts at issue pending judicial proceeding" (People issue at facts to material and relevant are that documents nd 1044 1042, NY2d 81 D., Terry of Robinson, 87 87 AD2d AD2d 877,878 877, 878 [2 [2'd Dept. Dept. 1982]; 1982]; see also, also, Matter Matter of Terry NY2d vv Robinson, rd [1993] citing citing Matter Matter of of Constantine Constantine vv Leto, Leto, 157 157 AD2d AD2d 376, 376, 378 [3 [3'd Dept. Dept. 1990], 1990], People People v [1993] nd Dept. [2 936,937 AD3d 43 Hudson, Gissendanner, 48 NY2d 543,551 [1979], Matter of Murray v Hudson, AD3d 936, 937 [2'd Dept. Murray of Matter Gissendanner, 48 NY2d 543,551 [1979], nd 2007], Matter Matter ofN. ofN. vv Novello, Novello, 13 13 AD3d AD3d 631,632 631, 632 [2 [2'd Dept. Dept. 2004]). 2004]). In a very very recent recent decision decision that that 2007], nd Dept. abrogated Kooper v. Kooper (74 AD3d AD3d 66 [2 [2'd Dept. 2006 2006 [cited [cited by both both movant movant and and respondent respondent Kooper (74 Kooper v. abrogated herein}), the the New New York Court of of Appeals Appeals clarified clarified the the burden burden and and necessary necessary showings showings on a motion motion York Court herein]), 2 [* 2] to quash, (see (see Kapon Kapon vv Koch, Koch, -NE3d-NE3d- 2014 2014 NY NY Slip Op 02327 02327 [2014]). [2014]). In In Kapon Kapon the Court Court to quash, concluded that that the the non-party non-party bears bears the the initial initial burden burden of of establishing establishing "that "that the discovery discovery sought sought is concluded uncover anything "utterly irrelevant" irrelevant" to to the the action action or or that that "the "the futility futility of of the process process to uncover anything legitimate legitimate is "utterly 1 then must then inevitable or or obvious". obvious".l Should Should the the [movant] [movant] meet meet this this burden, burden, the the subpoenaing subpoenaing party party must inevitable the to (id) relevant" is it that i.e. ... necessary" establish that the discovery sought is "material necessary" that relevant" (id) and "material is sought discovery establish that the ge NY2d327, 331-32 action, (see (see a/so also Anheuser-Busch.In Anheuser-Busch, Inc. Abrams, 71 71 NY2d327, 331-32 [1988] [1988] citingMatterofEd citing Matter of Edge c. vv Abrams, action, Ho Holding Cor_p., Com., 256 256 NY NY 374,382 374, 382 [1931] [1931] and and La Belle Belle Creole Creole Intl. IntI. S.A. v Attorney-General Attorney-General of of Ho Holding Assn. Coop. League Dairymen's of the State State of of New New York, York, 10 IONY2d 192, 196 196 [[1961] quoting Matter MatterofDaiIymen'sLeague Coop. Assn. 1961] quoting NY2d 192, the Murtagh, 274 274 AD2d591, 595 [1 [I"st Dept. Dept. 1948]). AD2d 591, 595 vv Murtagh, In its its application application to to the the present present matter, matter, the the above above holding holding necessitates necessitates denial denial of of plaintiffs plaintiffs In discovery the how demonstrate not did Plaintiff motion in that she failed to meet her initial burden. Plaintiff did not demonstrate how discovery burden. initial her meet motion in that she failed to sought was was "utterly "utterly irrelevant" irrelevant" to to the the action, action, or or that that the the process of reviewing reviewing plaintiff's plaintiffs employment employment process of sought thus, burden The futile. prove obviously would records to discover facts legitimate to her claim would obviously prove futile. The burden thus, does does claim her to legitimate facts discover to records necessary. and material is not shift shift to subpoenaing party party to to establish establish that the discovery discovery sought sought material and necessary. that the the subpoenaing to the not However, given given the the recent recent nature nature of of the the Court Court of of Appeals Appeals decision decision we note note that that defendant defendant However, did demonstrate demonstrate that the employment employment records records were were material and necessary, necessary, (see CPLR CPLR §3101 9310 I [a}),. [a]),. material and that the did Crowell-Collier Allen (see terms, especially in light ofthe liberal interpretation afforded to such terms, Allen v Crowell-Collier such to afforded interpretation especially in light of the liberal Publishing Co., Co., 21 21 NY2d NY2d 403, 403,406 [1968]). Plaintiff's Plaintiffs claims claims put put her her physical physical condition condition at issue; issue; she 406 [1968]). Publishing normal activities will continue alleges that that her injuries are are permanent, permanent, and and have have and and will continue to effect effect her her normal activities her injuries alleges employment all including, pertinently those of an an economic economic nature. nature. Accordingly, Accordingly, employment records records those of most pertinently including, most including but but not not limited limited to to those those related related to to promotions, reprimands, performance performance reviews reviews and and promotions, reprimands, including material are asserts, plaintiff as payroll disability claims, and not just those related to attendance and payroll plaintiff asserts, material and disability claims, and not just those related to attendance and necessary. necessary. 22 and these the subpoena Lastly, there was was neither neither nothing nothing improper improper in in defendant's defendant's use of of the subpoena to obtain obtain these Lastly, there records, nor in in their decision to to serve serve same same prior the preliminary preliminary conference. conference. Initially, Initially, the nonnonprior to the their decision records, nor choose to free was defendant secondly, and party from from whom whom the the records records were were sought sought mandated mandated it secondly, defendant was choose party prior, (see the discovery discovery device device it it wished wished to use and and was was not not confined confined to employ employ another another device device prior, to use the Machs. Edwards-Pitt vv Doe, Doe, 294 294 AD2d AD2d 395 395 [2 [2nd Dept. Dept. 2002], 2002], Barouh Barouh Eaton Eaton Allen Allen Cor_p. Com. v Int'l Int'l Bus. Machs. Edwards-Pitt 0 nd Dept. 1980]). 1980]). ~, 76 AD2d AD2d 873, 874 [2 ' Dept. Cor_p., 76 0 ' 1lThis initial burden hurden however, however, does does not not obviate obviate the need need of of "the "the subpoenaing subpoenaing party party to state, state, either either on the the face This initial required"' or sought is disclosure such reasons or subpoena or in a notice accompany it, 'the circumstances or reasons such disclosure is sought required'" of the of the subpoena or in a notice accompany 'the circumstances (Kapon supra), supra), in in accordance accordance with with CPLR CPLR §310 93101(a)(4). this instance instance the facial facial insufficiency insufficiency of of the the subpoena subpoena was I (a)(4 ). In this (Kapon thereto (see not at at issue issue since since the the non-party non-party upon upon whom whom it was served made made no objection objection thereto (see CPLR CPLR 3122 3122 [a]). raJ). was served not rejecting the Nevertheless, given given that non-party necessitated necessitated the service service of of the the subpoena subpoena after afler rejecting the authorizations authorizations the non-party that the Nevertheless, met. provided, this this Court Court would would find find that notice requirement requirement ofCPLR ofCPLR §310l(a)(4) !p101(a)(4) was was met. the notice that the provided, 2Kapon Kapon specifically specifically did did away away with with the the ''requirement" "requirement" that that the the party issuing the the subpoena subpoena must must show show that that the the party issuing not do we Therefore, §310l(a)(4). CPLR in evidence sought cannot be obtained from other sources one not found CPLR 93101(a)(4). Therefore, not found not one as sources other from obtained be evidence sought cannot address such such a showing showing herein. herein. address 33 [* 3] If '[ I denied and/or sanctions and for costs In light of the above, plaintiffs application to quash costs and/or sanctions is denied quash and plaintiffs application the above, light of In in its entirety, and and it is its entirety, in terms of the terms with the ORDERED that Bloomberg LP shall shall comply comply with of the subpoena. subpoena. that Bloomberg ORDERED HHS against defendant judgment against The Court now default judgment defendant HHS motion for a default plaintiffs motion considers plaintiffs now considers The Court HHS complaint on HHS and complaint summons and the summons served the (sequence 3) and grants properly served Plaintiff properly same. Plaintiff grants same. 3) and (sequence Defendant same. substantiate to provided pursuant to CPLR s311-a(a). An affidavit of service was provided substantiate Defendant was service of pursuant to CPLR §311-a(a). An affidavit this matter, otherwise appear failed answer, request an extension appear in this matter, of time to do so, or otherwise extension oftime request an an answer, submit an to submit failed to further Plaintiff expired. since has and failed to oppose this motion. The time to has since expired. Plaintiff has further so do time The motion. this and failed to oppose Accordingly, it is demonstrated compliance compliance with S3215 (f) and and (g)(4). (g)(4). Accordingly, CPLR §3215 with CPLR demonstrated is HHS IS against defendant judgment against ORDERED, that default judgment defendant HHS for a default motion for plaintiffs motion that plaintiffs ORDERED, further hereby opposition; and and it is further without opposition; granted without hereby granted at damages at of damages amount of the amount assess the to assess ORDERED, shall have Inquest to an Inquest have an plaintiff shall that plaintiff ORDERED, that further the of trial; and it is further trial; and time of the time upon all be served entry shall ORDERED, of this order with with notice of entry shall be served upon all notice of this order copy of that aa copy ORDERED, that of such date of the date days of (20) days parties of the such entry. entry. twenty (20) within twenty hereto within parties hereto If) 2014 June /{) ,,2014 Dated: Dated: June Rudolph E. E. Rudolph J.S.C. J.S.C. 44 [* 4] I.

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