Matityahu v Miller
Annotate this CaseDecided on August 9, 2022
Supreme Court, New York County
Samara Matityahu, Plaintiff,
against
Elayne Miller, Defendant.
Index No. 656509/2016
Anthony Balsamo, Esq., New York, NY, for plaintiff.
Brian R. Hoch, Esq., White Plains, NY, for defendant.
Gerald Lebovits, J.
In this action for an accounting and other relief, each party is dissatisfied with the other's responses to post-deposition discovery demands. Plaintiff moves under CPLR 3126 to strike defendant's answer for failure to comply with discovery requests, or in the alternative to compel defendant under CPLR 3124 to supplement her discovery responses. Defendant cross-moves to compel under CPLR 3124. The branch of plaintiff's motion seeking to strike defendant's answer is denied. The branch of plaintiff's motion to compel is granted in part and denied in part. Defendant's cross-motion to compel is granted in part and denied in part.
DISCUSSIONPlaintiff has alleged that defendant, her mother, received Social Security Disability payments on her behalf between 2011 and 2016, but then did not apply those payments for her benefit. She seeks an accounting, and a money judgment for sums that the accounting shows were not applied to her needs. Both plaintiff and defendant have been deposed on this issue. The [*2]discovery demands at issue on the motion and cross-motion each seek information relating to the parties' deposition testimony about the financial relationship between the parties during the 2011-2016 period.
I. Plaintiff's Motion to Strike or Compel
As an initial matter, this court is not persuaded that any failure by defendant to respond fully to plaintiff's post-deposition demands was sufficiently willful and egregious to warrant the severe sanction of striking defendant's answer. The branch of plaintiff's motion seeking that relief under CPLR 3126 is denied.
Plaintiff also moves in the alternative to compel defendant to supplement her responses to Nos. 4 and 5 of plaintiff's post-deposition document demands, and to respond to Demand Nos. 3 and 6. (See NYSCEF No. 87 [list of post-deposition demands].)
Demand No. 4 arises from defendant's asserted retaining of Social Security funds intended for plaintiff's room and board during periods when plaintiff was not residing with defendant. Plaintiff seeks a "[c]opy of the social security guidelines that supported defendant's claim that she was permitted to retain plaintiff's [S]ocial [S]ecurity benefits and charge plaintiff for room and board during times plaintiff was not residing [in] defendant's home." (Id. at 2.) Plaintiff argues that defendant produced only "an introductory brochure from [S]ocial [S]ecurity" that "did not address" the issue, and that defendant must supplement this response. (NYSCEF No. 110 at ¶ 5.) This court agrees. Defendant must within 45 days of entry of this order provide a supplemental response to Demand No. 4.
With respect to Demand No. 5, plaintiff has suggested that defendant needs to supplement this response; but plaintiff has not identified how defendant's initial response was deficient. Plaintiff's motion to compel is denied with respect to this demand.
Demand No. 3 seeks defendant's federal and state tax returns (or authorizations for their release) for the period at issue. (NYSCEF No. 87 at 1.) But plaintiff has not identified a pressing need for this information that would meet the high bar required before a party will be required to produce tax returns. Instead, she suggests only that the information in defendant's tax returns "are relevant to her credibility" (and impeaching that credibility). (NYSCEF No. 110 at ¶ 8.) That is not sufficient. Plaintiff's motion to compel is denied with respect to this demand.
Demand No. 6 seeks statements from the relevant period for a Bank of America account into which defendant deposited some of the funds received on behalf of plaintiff. (NYSCEF No. 87 at 2.) This information is relevant to plaintiff's claims, and defendant does not provide a reason to believe the request is overbroad or otherwise improper. Defendant must within 45 days of entry of this order provide the statements requested in Demand No. 6. Once produced, the statements may be viewed only by plaintiff's counsel; neither the statements nor detailed information on their contents may be turned over or otherwise provided to plaintiff herself.
II. Defendant's Cross-Motion to Compel
In her cross-motion, defendant seeks to compel plaintiff to respond, or supplement her responses, to Nos. 6, 7, 8, 9, 10, and 12 of defendant's post-deposition demands. (See NYSCEF No. 109 at ¶ 1 [affirmation in support of cross-motion]; NYSCEF No. 92 [list of post-deposition demands].) The cross-motion is granted in part and denied in part.
Demand Nos. 6, 9, and 12 relate to the parties' dispute over plaintiff's sources of income during the relevant period. Plaintiff has alleged, and testified, that she was unaware that defendant had opened a Citibank bank account on her behalf into which Social Security paid the disability funds at issue. According to plaintiff, she instead paid many of her living expenses herself during that period, using funds earned from waitressing and deposited in her own bank account at Chase Bank.
Defendant contends instead that plaintiff was fully aware of the Citibank account opened by defendant on her behalf—and that rather than support herself from employment income, plaintiff drew on the Social Security funds in that account to cover living expenses. Defendant seeks to compel plaintiff to provide tax returns (Demand No. 6) and bank statements (Demand No. 12) for the relevant period; and Chase bank account information through the present (Demand No. 9). (NYSCEF No. 92 at 1, 2.) This court concludes that the bank statements requested in Demand No. 12 (for the Chase account or any other account solely in plaintiff's name) are relevant and properly discoverable. Defendant's cross-motion to compel is granted with respect to Demand No. 12. Plaintiff must produce the statements to the extent available, or a detailed Jackson-type affidavit of diligent search (see Jackson v City of New York, 185 AD2d 768, 770 [1st Dept 1992]), within 45 days of entry of this order. Once produced, the statements may be viewed only by defendant's counsel; neither the statements nor detailed information on their contents may be turned over or otherwise provided to defendant herself.
Plaintiff argues that this information is not relevant because the "only issue before this court is whether defendant was entitled to charge her daughter for rent when her daughter was no longer residing with her, and with no expectation that she would return." (NYSCEF No. 110 at ¶ 10.) But plaintiff's claims—as articulated both in plaintiff's complaint and in prior motion practice—are not drawn so narrowly. This court declines to deem plaintiff to have, in effect, silently amended her complaint in a way that would entitle her to refuse to provide discovery that she does not wish to turn over.
With respect to Demand No. 6, defendant's motion papers do not explain how plaintiff's tax returns would provide information relevant to the issue of plaintiff's earnings during the period at issue beyond what can be gleaned from plaintiff's bank statements. Nor is it evident how the number of plaintiff's Chase account(s) that defendant seeks in Demand No. 9—not only during the time period at issue, but through to the present day—provides any relevant information beyond the bank statements covered by Demand No. 12, either. Defendant's cross-motion to compel is denied with respect to Demand Nos. 6 and 9.
Demand Nos. 7 and 8 seek HIPAA authorizations for records of past psychological and psychiatric treatment received by plaintiff. (See NYSCEF No. 92 at 1.) This branch of defendant's cross-motion to compel is denied. This court is unpersuaded on this record that plaintiff has put her psychological and psychiatric condition sufficiently at issue to warrant the invasive step of requiring plaintiff to produce treatment records from when she was in high school and college—particularly given the difficult familial and personal relationship between the parties.
Demand No. 10 seeks a particular text message from defendant to plaintiff that plaintiff testified about at her deposition. (Id. at 2.) Plaintiff does not dispute that the message is relevant and discoverable. (See NYSCEF No. 93 at 6 [post-deposition discovery responses].) If plaintiff has not already turned over a copy of this message, she must do so within 45 days of entry of this order, or provide an appropriate Jackson affidavit.
Accordingly, it is
ORDERED that the branch of plaintiff's motion seeking under CPLR 3126 to strike defendant's answer is denied; and it is further
ORDERED that the branch of plaintiff's motion seeking under CPLR 3124 to compel defendant to provide further discovery responses is granted in part and denied in part as set forth above; and it is further
ORDERED that defendant's cross-motion to compel plaintiff to provide further discovery responses is granted in part and denied in part as set forth above; and it is further
ORDERED that the parties are directed to appear before this court for a telephonic status conference on October 14, 2022.
DATE 8/9/2022Some 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.
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