Calcagno v. Graziano

• Decision Date: 09 December 2021
• Docket Number: 531857, 531865
• Citation: 200 A.D.3d 1248,160 N.Y.S.3d 135
• Parties: Paul J. CALCAGNO Jr., Individually and on Behalf of Graziano Calcagno Development, LLC, et al., Appellants, v. Anthony GRAZIANO, Individually and as Manager of Graziano Calcagno Development, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1248
160 N.Y.S.3d 135

Paul J. CALCAGNO Jr., Individually and on Behalf of Graziano Calcagno Development, LLC, et al., Appellants,
v.
Anthony GRAZIANO, Individually and as Manager of Graziano Calcagno Development, LLC, et al., Respondents.

531857, 531865

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 22, 2021
Decided and Entered: December 9, 2021

160 N.Y.S.3d 138

Dennis B. Schlenker, Albany, for appellants.

Goldman Attorneys PLLC, Albany (Paul J. Goldman of counsel), for respondents.

Before: Garry, P.J., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

160 N.Y.S.3d 139

Appeals (1) from an order of the Supreme Court (Ceresia, J.), entered May 14, 2020 in Columbia County, which denied plaintiffs’ motion to compel discovery, and (2) from an order of said court, entered August 13, 2020 in Columbia County, which granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff Paul J. Calcagno Jr. is the manager and sole member of plaintiff Paul Calcagno Jr. Development, LLC and defendant Anthony Graziano is the president and majority shareholder of defendant Broadway Garage of Columbia County, Inc. In December 2015, Calcagno entered into a purchase and sale agreement wherein Calcagno agreed to purchase certain real property in the Town of Greenport, Columbia County for $385,000. According to plaintiffs, after Calcagno entered into the purchase and sale agreement, Graziano approached Calcagno and, upon Graziano's proposal, the two entered into a joint venture to operate "a used automobile dealership on the ... property under the name and aegis of Broadway Garage." Shortly thereafter, upon the execution and filing of articles of organization with the Department of State, Calcagno and Graziano formed Graziano Calcagno Development, LLC (hereinafter the limited liability company) (see Limited Liability Company Law §§ 203, 209 ). The following day, Graziano provided a 10% down payment on the property. In January 2016, Calcagno and Graziano entered into an operating agreement, which stated that Graziano was the general manager of the limited liability company and that, as members, Calcagno and Graziano each held a 50% interest in the limited liability company.

In March 2016, after it was discovered that the property would have to undergo remediation for environmental contamination, Calcagno and the sellers of the property executed an addendum to the sale contract, agreeing to a reduction of the sale price to $180,000 and the assignment of Calcagno's rights under the contract to the limited liability company. The sale of the property closed in April 2016, with Graziano paying the remaining balance of the purchase price and the property being deeded to the limited liability company. In October 2016, the limited liability company entered into a lease agreement with Broadway Garage, agreeing to lease the property – for a period of five years – for $3,791.67 per month. That month, Broadway Garage began operating a used car dealership on the property.

In November 2018, plaintiffs commenced this action seeking damages, as well as declarations that (1) a joint venture exists between Calcagno, Graziano, the limited liability company and Broadway Garage, (2) the operation of Broadway Garage on the property and any profits or losses derived therefrom are part of the joint venture, and (3) Calcagno, as a 50% member of the limited liability company, is entitled to 50% of the profits derived from Broadway Garage's operations on the property. Defendants joined issue, asserting various affirmative defenses, as well as a counterclaim for fraud. In December 2019, plaintiffs moved to compel defendants to comply with their discovery requests. Defendants opposed the motion, arguing that they had responded to plaintiffs’ discovery demands and that the motion failed to, among other things, identify the responses alleged to be deficient and establish that the discovery demanded was

160 N.Y.S.3d 140

material and necessary to their claims. Supreme Court agreed with defendants and, in an order entered in May 2020, denied the motion on the basis that plaintiffs failed to sustain their burden of proving that defendants’ discovery responses were deficient or improper. Defendants thereafter moved for summary judgment dismissing the complaint, arguing that a joint venture never existed and that, therefore, plaintiffs were not entitled to damages or declaratory relief. In August 2020, Supreme Court granted defendants’ motion and dismissed the complaint. Plaintiffs appeal from both the May 2020 order and the August 2020 order.¹

We affirm. Plaintiffs argue that Supreme Court erred in denying their motion to compel defendants to comply with their discovery requests. CPLR 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." "A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is ‘material and necessary’ – i.e., relevant" ( Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; accord Catlyn & Derzee, Inc. v. Amedore Land Devs., LLC, 166 A.D.3d 1137, 1141, 87 N.Y.S.3d 661 [2018] ). "The words, ‘material and necessary,’ are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" ( Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ; accord Forman v. Henkin, 30 N.Y.3d at 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 ; see Rote v. Snyder, 195 A.D.3d 1130, 1131, 149 N.Y.S.3d 634 [2021] ). As trial courts are vested with broad discretion in controlling discovery, we will not disturb their discovery determinations in the absence of a clear abuse of discretion (see Melfe v. Roman Catholic Diocese of Albany, N.Y., 196 A.D.3d 811, 813, 151 N.Y.S.3d 233 [2021] ; Fox v. Fox, 309 A.D.2d 1056, 1057, 765 N.Y.S.2d 906 [2003] ).

A review of plaintiffs’ motion to compel makes clear that this is not a case where defendants wholly failed to respond to discovery demands. Rather, plaintiffs take issue with the adequacy and completeness of defendants’ responses to their discovery demands, particularly their interrogatories and their demand for electronically stored information. However, plaintiffs’ complaints in this regard are general and conclusory in nature. Plaintiffs do not identify the particular responses with which they take issue. Nor do they address or demonstrate how the alleged deficiencies are material and necessary to particular claims. Under such circumstances, we discern no abuse of discretion in Supreme Court's determination that plaintiffs failed to make the requisite showing for a motion to compel and to deny the motion accordingly (see Aaron v. Pattison, Sampson, Ginsberg & Griffin, P.C., 69 A.D.3d 1084, 1085–1086, 893 N.Y.S.2d 352 [2010] ).

Turning to defendants’ motion for summary judgment dismissing the complaint, plaintiffs argue that discovery

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