J.V.C. Elec. Co., Inc. v Airmont Woods LLC

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J.V.C. Elec. Co., Inc. v Airmont Woods LLC 2017 NY Slip Op 32832(U) December 1, 2017 Supreme Court, Rockland County Docket Number: 031983/2015 Judge: Thomas E. Walsh II 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. [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 1] NYSCEF DOC. NO. 276 INDEX NO. 031983/2015 RECEIVED NYSCEF: 12/05/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------X J.V.c. ELECTRICAL CO., INC. a/k/a J.V.c. ELECTRICAL COMPANY, INC. CARMELO SCAFFIDI & SONS BLACKTOPPING, INC. d/b/a SCAFFIDI'S PAYING & DRAINAGE, and UC TRUCKING INC., Plaintiffs, DECISION AND ORDER -againstIndex#031983/2015 AIRMONT WOODS LLC, ABEKEN APARTMENTS LP, ABEKEN APARTMENTS II, LLC, ABEKEN LLC, ABEKEN MANAGEMENT LLC, CARDINAL DEVELOPMENT, LLC, CONGERS APARTMENT RENTALS, LLC, DENTON ACRES LLC, GLW DEVELOPERS LLC, K.D.J. REALTY, INC, KENABE, LLC, TUTHILL PARC, LCC, VIOLA PARK REALTY, LLC, WARWICK COMMONS LLC, KENNETH J. BERGSTOL, SUSAN BERGSTOL, JON BERGSTOL, JOHN DOE NO. "3" Through JOHN DOE NO. "5", JANE DOE NO."l" Through JOHN DOE NO. "5", Motion # 6 - MG and MD DC - N Adj: 12/6/17 Defendant(s) -----------~------------------------------------------------------X Thomas E. Walsh II, J. The Court has before it Defendant's Practice Law and Rules and Rules 9 other, further 9 3103(a) 2304, a non-party and different and/or subpoena, Motion for a protective for an Order Quashing, directed at Schulman pursuant order pursuant to Civil to Civil Practice Law Black & Katz, LLPand for such relief as to this Court seems just and proper: NUMBER PAPERS NOTICE OF MOTION/AFFIRMATION EXHIBITS (A-F) OF JOSEPH J. HASPEL, ESQ'/ 1 AFFIRMATION OF PATRICIA E. HABAS, ESQ. IN OPPOSITION/AFFIDAVIT OF JOSEPH V. CACIOPPO, JRjAFFIDAVIT OF WILLIAM SCAFFIDI/AFFIDAVIT OF JOSEPH JOHN BERTOLINO/EXHIBITS (1-17)/MEMORANDUM OF LAW IN OPPOSITION TO AIRMONT DEFENDANTS' MOTION TO QUASH 2 REPLY AFFIRMATION 3 OF JOSEPH J. HASPEL, ESQ./EXHIBITS 1 1 of 12 (A-D) [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 2] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 Upon careful consideration of the foregoing, Briefly, from Defendants this action arises as part of the building between 2009 and 2012. 5, 2015 against Defendants non-payment of various Originally the Court now rules as follows: for services provided homes in a subdivision in Airmont, Plaintiff JVC ELECTRICAL commenced AIRMONT WOODS and BERGSTOL. by Plaintiffs to New York this action on May The Complaint contains contract causes of action, causes of action pursuant to Article 3-A of the Lien Law ("Trust Fund Claims"). On June 1, 2015 Plaintiff's letter. Defendant's extension prior counsel to answer settlement or appear, discussions counsel served Sterling contacted which Plaintiff's resulted ended unsuccessfully Tecum on February 9, 2016 on Sterling National counsel Bank with a litigation on June 2015 requesting in protracted settlement in 2016 and Plaintiffs National discussions. filed a Subpoena Bank on notice to Defendants. bank's compliance with the subpoena, the issue was joined when Defendants and BERGSTOL filed Defendants of action a joint Verified Answer filed a motion seeking summary and to quash undersigned the subpoena to the judgment served original pursuant to Civil Practice Law and Rules 9 3025(a) Duces Prior to the and fifth causes was denied from the bench. On March 1, 2016, Plaintiff served a Supplemental Amended Complaint The Subsequently, the fourth Bank which an AIRMONT WOODS Complaint. dismissing on Sterling hold by the Summons and joining Plaintiffs LJC TRUCKING and SCAFFIDI PAVING. On that date Plaintiffs LJC TRUCKING and SCAFFIDI PAVING also served on Defendant Amended Complaint In November a Trustee Demand. tenth (Trust Conveyance) subpoena filed a Verified Answer to the on March 30, 2016. 2016 the undersigned Airmont Woods, LLC and Kenneth Bergstol's the Defendants Fund), Eleventh issued a Decision and Order addressing Motion for partial Summary (Fraudulent causes of action and for a protective filed on Sterling National Conveyance) and Judgment Twelfth order and an order quashing bank and other 2 2 of 12 related relief. That Defendant dismissing (Fraudulent the non-party same Order also [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 3] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 considered the Plaintiff's Motion for Summary Judgment on the various causes of action. the November 2016 Decision and Order the Court denied Defendant's for partial summary judgment, Bank subpoena plaintiff's and denied motion verified statement for the construction to compel a protective Plaintiff's motion for summary and the Defendant's judgment. were directed The Court granted to furnish and provide access to books and records which constituted project Biret Drive Subdivision cause of action in the Complaint parties agree that the framed-issue motion order and the motion to quash the Sterling National Project in Airmont, the Court directed the parties to appear for a framed-issue and twelfth aforementioned Within Plaintiffs with' a the lien law trust New York. Additionally, hearing as to the tenth, eleventh two weeks after the Decision and Order. hearing has not occurred and has been adjourned The numerous times over the past year. Pursuant to the above November 2016 Decision and Order, the Defendants forwarded copies of Defendants Airmont Woods, LLC and Kenneth Bergstol's banking records from Sterling Bank. Defendant's filed a timely amend the Complaint motion to reargue and Plaintiff's in December Defendants exchanged 2016. Subsequent banking documents produced boxes of requested documents general ledger which delineated to the November with Plaintiffs. Defendants to Plaintiff including each and every transaction motion to amend the Complaint. fraudulent Bergstol Complaint conveyances filed a Verified from Answer Airmont in its history. Woods, LLC's The Court issued a motion to reargue and granting defendants and causes of action. alleged that the newly added defendants Defendant assert that they Plaintiff e-filed and served the Second Amended Complaint on February 21, 2017, which added the additional The Second Amended Decision and Order, further Defendant Decision and Order on February 14, 2017 denying Defendant's plaintiff's filed a motion for leave to Airmont. Defendants to the Second Amended Airmont Complaint were recipients of Woods and Kenneth on March 13, 2017. Defendants Denton Acres, LLC, KDJ realty Inc., Jon Bergstol and Susan Bergstol filed Verified Answers to the Second Amended Complaint on March 13, 2017. 3 3 of 12 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 4] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 Plaintiffs (hereinafter issued a non-party SB& K), Defendants Subpoena Duces Tecum for Schulman, Certified Public Accountants seeks six (6) separate documents: by SB&K to any of the Airmont (2) documents the financial evidencing and the present, or Denton Defendants that payments and/or financing reflect such information (6) Documents tax preparation, or Denton Defendants, (4) checks, by or on behalf to the "winding Woods, LLC and Kenneth Bergstol filed the instant pursuant to Civil Practice Law and Rules 9 receipts and or other Defendants with the Project, (5) all trust fund ledgers relating 9 1, 2006 Defendants received by any of the Airmont maintained Order pursuant to Civil Practice Law and Rules The subpoena Woods between January the present, from any entity in connection with the Project, Defendants Airmont MOTION Defendants solvency of Airmont for the years 2006 through documents evidencing connection for accounting, (3) Federal and New York State tax returns for all Airmont Denton Defendants or documents on June 26, 2017. (1) all retainer agreements or other services provided Black & Katz, LLP, 3103(a)and/or 2304 the non-party of Defendants up" of Airmont in Woods. motion for a Protective an Order Quashing subpoena directed (in part), at SB&K. TO QUASH GENERALLY Pursuant to Civil Practice Law and Rules modify a subpoena shall be made promptly In determining whether 9 2304, "A motion to quash, fix conditions in the court in which the subpoena AD3d 631, 632 (2d Dept 2004)]. sought by the subpoena are relevant. Once the relevancy of the items sought burden is on the party issuing the subpoena to come forward with a factual the relevance of the documents sought. [Hvatt-v. need only establish that the material will be upheld among [N. v. Novello, 13 is challenged, the basis establishing Franchise Tax Bd., 105 AD 3d 186, 202 (2d . Dept 2013); N. v. Novello, 13 AD 3d 631, 632 (2d Dept 2004)]. and the subpoena is returnable." to quash a subpoena duces tecum, the Court must determine, other things, whether the documents or The party issuing the subpoena sought bears a reasonable relation to the issues at hand, unless the information 4 4 of 12 sought is utterly irrelevant to any [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 5] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 proper inquiry. [Hyatt v. Franchise Tax Bd., 105 AD3d 186,202 (2d Dept 2013); N. v. Novello, 13 AD3d 631, 632 (2d Dept 2004)]. In terms information of discovery, Corp., "material Pub. Co., 21 NY2d 402 (1968); 300 AD2d 460, 461 (2d Dept 2002)]. and necessary" liberally facts bearing on the controversy and reducing delay and prolixity. shall be full disclosure unreasonable limiting, person or the courts." Power Authority, material or regulating the issues and necessary S 3101(a) states that in the prosecution However, unlimited disclosure or is not that the court may issue a protective the use of any disclosure device to prevent expense, embarrassment, [Civil Practice Law and Rules disadvantage, S 3103(a); or other prejudice to any County of Suffolk v. Long Island et aI, 100 AD3d 944, 946 (2d Dept 2012); Accent Collections, Inc. v. Capelli Inc. et aI, 84 AD 3d 1283 (2d Dept 2011)]. Defendants Airmont non-party on request "of any for trial by sharpening Civil Practice Law and Rules of all matter conditioning annoyance, disclosure has defined The test is one of usefulness and reason." [Id. at 406; Kooper required and the Civil Practice Law and Rules provide order "denying, whether or defense of an action. The Court of Appeals which will assist preparation defense of an action, regardless of the burden of proof." Enterprises, in determining Palermo Mason Const., Inc. v. Aark for the purpose of requiring v. Kooper, 74 AD 3d 6, 10 (2d Dept 2010)]. "[t]here wide discretion that is sought is material and necessary to the prosecution [Allen v. Crowell-Collier Holding the court is granted subpoena Woods, LLC and Kenneth Bergstol submit that with the filing of the on SB&K the Plaintiff Kenneth Bergstol into submission. is engaging in a "scheme to harass" Defendants1 argue that the documents Specifically, by Plaintiff from SB&K are not relevant to the instant action. The basis of Defendants argument is that the business of a transferee Defendant of an alleged fraudulent conveyance sought relevance is "generally 'Any reference to Defendants in this motion only applies to Defendants Airmont Woods, LLC and Kenneth Bergstol, as the instant motion to quash is brought by their counsel and the other Defendants have failed to oppose the motion, join the motion or seek the same relief by their own motion to quash. . 5 5 of 12 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 6] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 no consequence, fraudulent since it is only the intent of the transferor under Article 10 of the Debtor and Creditor law ("DCl") Defendant further avers that the additional may render both parties concede that the undersigned a transfer of the State of New York." disclosures sought by Plaintiff claims made by Plaintiff as to the Trust Fund and the validity Specifically, which are directed to the of those claims remain in limbo. ordered a framed issue hearing as to those causes of action in the November 2016 Decision and Order, but that hearing has yet to be commenced. Defendants court conferences concedes that there have been numerous discussing the scheduling. parties have engaged in extensive EBTs) and paper discovery. discovery Defendants During the months including scheduled they should not have to engage in "discovery tolling argument, are indisputably since December Examinations now argue that discussions since the hearing on issues which, to quash the Plaintiff's subpoena for non-party sought are beyond that which would lead to relevant The basis of Defendants of the law of fraudulent which is controlled conveyances, is to provide creditors determining evidence and that the argument by Article SB&K is that is that the purpose 10 of the Debtor Creditor a method or means in which they can enforce their claims. these cases the Defendants aver that the actions of the debtor-transferor is at issue and not the intent oftransferee. only is relevant transferee. of the facts and the the benefit of further discovery since they have already documents sought are also improper. law, Essentially from Defendants. Defendants first argument the documents has yet to be but for a meritless the Defendants are arguing that the Plaintiffs should accept their rendition received enough documentation 2016 the Before Trial (hereinafter barred by the applicable statute of limitations." finances in the instant matter without at various where Specifically, defendant-transferee who has the liability there Defendant further argues that the transferees is an affirmative Defendant defense if the defendant argues that there is no independent except that they have a responsibility to the creditor (plaintiff). 6 of 12 is what intent is not the initial liability placed on a to r~store assets to the transferor According to Defendant, 6 In to that end a creditor's [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 7] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 remedy when there is a transfer of debtor's assets is to get the conveyance is not possible due to the assets no longer existing, an amount up to the value of the fraudulently and applying individual transferred liability can be entered in assets. Following the Defendants and if that these arguments assert that they can have no except that they could be required to restore assets that were improperly to them by Defendant The second argument confidential then a money judgment transferred the law as stated by Defendants, nullified Airmont. raised by the Defendants and private information is that financial records that contain are not subject to discovery unless they are relevant to the issues in the case and are unavailable from other sources. Defendant submits that Plaintiffs have already received Defendant Airmont Woods, LLC's financial records, to wit: statements cancelled checks from the financial such, Defendants assert institution since there and Airmont is no dispute whether the transfers are defined as fraudulent that Woods, LLC's general ledger. the transfers sources produced by the Defendant and by subpoena. conduct transfer is a fraudulent but rather documents from two (2) other Further, the Defendant is not an issue that can be considered avers that since in determination of whether conveyance the operations and financial affairs of that transferee action are not relevant. the Plaintiffs through occurred, Therefore, As conveyances under the Debtor and Creditor Law that the Plaintiffs have already received the necessary financial the transferee's and Defendant submits that the financial documents a in this sought by the subpoena duces tecum served on SB&K is the type for which the law prevents discovery. In opposition Plaintiffs harassing the Defendants purpose of supporting Defendant's deny using the current discovery that the intent of the transferee irrelevant under New York Debtor & Creditor Law is incorrect. they are seeking from for the purpose and assert that they have made proper discovery their claims as alleged in the Complaint. interpretation request SB&K are needed to defeat 7 7 of 12 the Plaintiffs of requests for the also submit that the of fraudulently conveyed assets is Plaintiffs aver that the documents affirmative defenses asserted in [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 8] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 Defendants Answers along with establishing an overall pattern of fraudulent knowledge of transferees participate in a conspiracy directly demonstrate loans between entities. can be enlightening the consideration, Specifically, demonstrate conveyance. on who's a transferor's intent to defraud or that are sought would the financial condition of Defendant Airmont Woods, LLC conveyances Plaintiff of Defendant companies, As to the behalf asserts that the actions and Since the documents Plaintiff argues that the documents expose the internal transactions of fraudulent Plaintiff regarding to defraud creditors. at the time of the alleged fraudulent relevant. a pattern and scheme to defraud creditors through retainer and they are seeking from SB&K would which is directly letters, (i.e. which entities) working on, which would clarify "adjustments" argues that they are material Plaintiffs relevant to a claim assert that the accountant observed in Defendant that they would was simultaneously Airmont Woods general Ledger. In application to the instant conduct at his deposition, action, Plaintiffs argue that Defendant along with that of Defendant Aimront's in which they both were unable to provide information Kenneth bookkeeper, According to Plaintiff, Defendant and Kendyl Malvik's EBT testimony frequent Woods, LLC's general online transfers ledger revealed that Defendant of corporate assets which included Kenneth trust Defendant Airmont and financial Woods general records demonstrate Further, that Defendant Plaintiff Kenneth property was transferred from Defendant Kenneth 8 8 of 12 proceeds of house payment to creditors. made for loans within the Bergstol Specifically, Bergstol was making asserts that the EBT testimony entities in a scheme in which he diverted funds from his corporation accounts held with his wife, Defendant Susan Bergstol. Bergstol funds, or explain the 'adjustments" Ledger. sought relevant. and a review of Defendant sales, proceeds from loans and real estate for the purpose of avoiding Kendyl Malick was unable to understand Kendyl Malvick, about the loans and the consideration for such, makes the instant subpoena to SB&K necessary and the documents Airmont Bergstol used several corporate to his individual Defendant for little and joint argues that real or no consideration to [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 9] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 Defendant Denton Acres and Defendant Airmont Woods paid the purchase price and mortgage payments. The Plaintiff states that Defendant Kenneth Bergstol subsequently transferred his interest in Defendant Denton Acres for a loan owed to his son, Defendant Jon Bergstol, but was unable to provide any facts about the loan or produced any promissory related to the loans. lack of memory Plaintiff's argument is that the Defendant's (at his EBT) and inability to clarify certain notes or documents own lack of documentation, transactions within Defendant Airmont Woods, LLC's general ledger have resulted in the Plaintiff needing to obtain clarifying documentation from Defendants accountants. Additionally, Plaintiff submits that all of the documents they are seeking would be indirect evidence of "badges of fraud." DISCLOSURE OF TAX RETURNS "[D]isclosure contain information dispute." of income tax returns is disfavored unavailable [Briand Parenteau, without from other sources, particularly a strong showing that they germane to the matter Inc. v. Dean Witter Revnolds, Inc., 267 AD2d 576, 577 (3d Dept 1999); Nanbar Realtv Corp. v. Pater Realty Corp., 242 AD2d 208, 209-210 Altidor v. State Wide Ins. Co., 22AD3d 435 (2d Dept 2005)]. and private" nature their disclosure is disfavored. (1st Dept 1997); Due to tax returns "confidential [Roth v. American Colonial Ins. Co., 159 AD2d 370 (1st Dept 1990)]. The party seeking tax returns must establish that the information tax returns seek "is indispensable that sources." [Briton they circumstances to this litigation and unavailable v. Knott Hotels Corp., 111 AD2d 62 (1st Dept 1985); Matthew Co. v. Mobil Oil Corp., 114 AD2d 772 (1st Deptl985)]. which warrants in An indicia the disclosure of income tax returns. in the from other Indus. Piping of fraud is a special [Dore v. AI/state Indem. Co., 264 AD2d 804 (2d Dept 1999)]. Turning to the State and Federal tax returns sought by the Plaintiff, that due to the confidential Defendant argues and private nature of tax returns they are generally not th~ subject of discovery unless the party seeking their discovery has shown that they are relevant to the 9 9 of 12 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 10] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 issues in the case, indispensable submits that Plaintiff relevant to the information argument private, in the creditors is not available from the Plaintiff action, other the insufficiency In opposition that sources. of Plaintiff's they Defendants concedes that tax returns The Plaintiff further provide no further are considered for the reasons set forth returns are sought has failed to maintain the financial but the tax returns, then that information is "unavailable." and Defendant Airmont fraud," which is a special circumstance the specific tax returns. confidential and by the Defendant in which the party who's tax information needed in any other place Additionally, Plaintiff submits that based on the evidence they have already received along with the EBT testimony Kenneth Bergstol are and that for the Defendants asserts that in a circumstance Defendant i.e. that the tax returns are indispensable application but asserts that they can be discoverable in his motion. from other sources. has failed to make the required showing, issues regarding to the claim and unavailable Woods, LLC's bookkeeper there which overrides the confidential of Defendant is an "indicia of and private nature of tax returns. It cannot irrelevant be said that the documents to the issues presented clarifications highlighting regarding whether sought in this proceeding. the movement of funds there was consideration by Plaintiffs The documents between entities from contain many facts and by Defendants for the conveyances. EBTs of both bookkeeper it cannot available to them. Defendant be said that Further, Kenneth the information and Defendant sought in the instant circumstance based in fraud, both in the conveyances, as to the trust fund claims. Bergstol the dissolution while also As the Defendants failed to provide clarity of these issues through the financial documents through SB&K are utterly already provided and Airmont by Plaintiffs the allegations have Woods, was already LLC's made made by Plaintiff are of Defendant Airmont Woods, LLC and The existence or allegation of fraud create an issue as to the intent and knowledge of the transferee based on the Debtor and Creditor Laws and the relevant case law and the discovery to this point provided by Defendants 10 10 of 12 has been vague and insufficient. [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 11] INDEX NO. 031983/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 12/05/2017 TRUST FUND CLAIMS AND DISCOVERY As to the trust fund claims, the Court notes that the pa'rties have engaged in discovery including the Defendant providing financial documents and producing despite the failure of the parties to agree upon a date for the framed-issue perceives the Defendants objection SB&K on the basis of the pending conducted discovery to the Statute framed issue hearing meritless. to conduct The Court from non-party If the true issue was the hearing is non-sensical. have been have engaged order directing that further discovery hearing should Since the Defendants since this Court's hearing, the argument considered the documents the framed-issue being exchanged. the aforementioned for EBTs over causes of action they believe are untimely then nine (9) months2 for more than schedule a framed-issue failure of Limitations, prior to any discovery hearing. as to the current subpoena for documents Defendants desire to not engage in discovery pursuant witnesses the parties in to should be barred by the Therefore, sought by Plaintiffs as to the trust fund diversion the Court has claim the same as the other causes of action plead by the Plaintiffs. In arriving at this decision the Court has reviewed, evaluated and considered issues framed by these motion papers and the failure of the Court to specifically all of the mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate Accordingly, legal authority. it is hereby ORDERED that based on the foregoing that Defendant's Motion to Quash (motion #6) is granted solely to th extent that the non-party New York State tax returns of the Airmont Defendants SB&K is directed to provide Federal and and Denton Defendants (as defined in 2 The Court notes that the Defendant's motion was submitted in August 2017, which is nine (9) months from this Court's Decision and Order dated November 2016. However, at the time of the current Decision and Order approximately twelve (12) months have elapsed. 11 11 of 12 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:03 PM 12] NYSCEF DOC. NO. 276 INDEX NO. 031983/2015 RECEIVED NYSCEF: 12/05/2017 the Subpoena Duces Tecum) for a period of three (3) years before the filing instant action and in all other respects the Defendant's of the lien in the Motion to Quash (Motion #6) is denied; and it is further ORDERED that any disclosure provided for in this Order may not be disseminated to any other party; and it is further ORDERED that the Defendant's Motion for a Protective Order is denied except as herein set forth. The foregoing Dated: New City, December constitutes the Decision and Order of this Court on Motion #6. !W York , 2017 TO: GREGG VERRILLI, ESQ. ROGERS, MCCARRON & HABAS, P.c. Attorneys for Plaintiff (via e-fiIe) JOSEPH J. HASPEL, ESQ. Attorney for Defendants AIRMONT WOODS, LLC and KENNETH BERGSTOL (via e-file) ANTHONY X. ARTURI, ESQ. ARTURI, D'ARGENIO, GUAGLARDI & MELITI, LLP Attorney for Defendants SUSAN BERGSTOL, JON BERGSTOL, DENTON ACRES, LLC and KDJ REALTY INC. (via e-file) 12 12 of 12

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