Itria Ventures LLC v Provident Bank

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Itria Ventures LLC v Provident Bank 2019 NY Slip Op 33606(U) December 9, 2019 Supreme Court, New York County Docket Number: 653667/2018 Judge: Andrew Borrok 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: 1] NEW YORK COUNTY CLERK 12/09/2019 03:06 P~ NYSCEF DOC. NO. 218 INDEX NO. 653667/2018 RECEIVED NYSCEF: 12/09/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ANDREW BORROK IAS MOTION 53EFM Justice ----------------------------------------------------------------- ----------------X ITRIA VENTURES LLC, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 653667/2018 09/13/2019 005 -vDECISION + ORDER ON MOTION PROVIDENT BANK, Defendant. ------------------------------------------------------------------- --------------X PROVIDENT BANK Third-Party Index No. 595127/2019 Plaintiff, -against- BIZ2CREDIT INC., RAMIT AURORA, HIGHCREST CAPITAL, LLC, JIFFER SMALL BUSINESS LENDING FUND, LP, MARKETPLACE SPV, LLC, PRIME MERIDIAN CAPITAL MANAGEMENT, LLC, RANGER DIRECT LENDING FUND TRUST Defendant. --------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 005) 94, 95, 96, 97, 98, 99, 100, 101, 104, 105 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS Upon the foregoing documents and for the reasons set forth on the record (12/6/2019), Itria Ventures LLC, Biz2Credit Inc., and Ramit Arora (the Movants)'s motion to quash the subpoena (NYSCEF Doc. No. 100, the Subpoena) issued by Provident Bank (Provident) to non-party witness DALCO Reporting, Inc. is denied. In motion sequence 004, the Movants previously brought a motion to quash certain subpoenas, including a subpoena issued to Victoria Akperov, a former employee of Biz2Credit, Inc. In a 653667/2018 ITRIA VENTURES LLC vs. PROVIDENT BANK Motion No. 005 1 of 4 Page 1 of4 [*[FILED: 2] NEW YORK COUNTY CLERK 12/09/2019 03:06 NYSCEF DOC. NO. 218 P~ INDEX NO. 653667/2018 RECEIVED NYSCEF: 12/09/2019 decision and order (NYSCEF Doc. No. 91, the July Decision), dated July 23, 2019, the court denied without prejudice the motion to quash regarding the subpoena issued to Ms. Akperov, which subpoena also sought her deposition. The Movants now seek to quash a subpoena duces tecum issued to DALCO Reporting, Inc. regarding the deposition transcript of Ms. Akperov (the Transcript) in the action captioned Biz2Credit, Inc. v. Neeraj Tulshan and Hudson Capital Advisors LLC (Index No. 653718/2013). A party may move to quash a subpoena pursuant to CPLR § 2304. The court may grant a motion to quash a subpoena duces tecum "only where the materials sought are utterly irrelevant to any proper inquiry" (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [1st Dept 2006]). The burden of establishing that the subpoenaed documents are utterly irrelevant lies with the person that is subpoenaed (id.). The Movants argue that the Subpoena should be quashed because the Transcript (i) is irrelevant to the claims in this action concerning conduct after May 2016, and (ii) contains confidential information whereby production of the same would violate certain confidentiality agreements between non-parties to the action and disclose proprietary trade secrets to Provident. In its opposition papers, Provident argues that the motion to quash should be denied because the July Decision is the law of the case and that the Subpoena seeks relevant information. The court agrees. In the July Decision, the court refused to quash the subpoena Provident previously issued to Ms. Akperov, which required her subsequent deposition. The court reached this conclusion, in part, 653667/2018 ITRIA VENTURES LLC vs. PROVIDENT BANK Motion No. 005 2 of 4 Page 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 12/09/2019 03:06 NYSCEF DOC. NO. 218 P~ INDEX NO. 653667/2018 RECEIVED NYSCEF: 12/09/2019 because Ms. Akperov's testimony on the Movants' prior business practices was relevant to those counterclaims asserted by Provident regarding tortious interference with contract and fraud (NYSCEF Doc. No. 37). Notwithstanding the Movants' motion to dismiss Provident's counterclaims (Mtn. Seq. 003), Ms. Akperov's testimony remains relevant because Provident's counterclaim for tortious interference with contract was sustained against the Movants. As such, Ms. Akperov's testimony regarding the alleged business practices ofBiz2Credit, Inc. and Mr. Arora are particularly relevant to the issue of whether the Movants used improper means to interfere with the loan agreement between Provident and Lotus Exim. The Movants have thus failed to establish that the Transcript is utterly irrelevant to this action (see Velez, 29 AD3d at 112). In addition, to the extent that the Transcript involves non-parties to this action that are bound by a separate confidentiality agreement, these non-parties have not moved to quash or obtain a protective order regarding the Transcript. Accordingly, the motion to quash the Subpoena is denied. For the avoidance of doubt, the branch of the motion for a protective order precluding Provident from seeking discovery from DALCO Reporting, Inc. is also denied. After oral argument and at the court's suggestion, the parties agreed to enter into a confidentiality agreement, including the designation that the Transcript is for attorneys eyes only. 653667/2018 ITRIA VENTURES LLC vs. PROVIDENT BANK Motion No. 005 3 of 4 Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 12/09/2019 03: 06 PMI NYSCEF DOC. NO. 218 INDEX NO. 653667/2018 RECEIVED NYSCEF: 12/09/2019 Accordingly, it is ORDERED that Itria Ventures LLC, Biz2Credit Inc., and Ramit Arora's motion to quash the subpoena issued by Provident Bank to non-party witness DALCO Reporting, Inc. is denied. 12/9/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ANDREW BORROK, J.S.C. ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 653667/2018 ITRIA VENTURES LLC vs. PROVIDENT BANK Motion No. 005 4 of 4 D D OTHER REFERENCE Page4 of 4

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