Hess 938 St. Nicholas Judgment v. 936-938 Cliffcrest Hous. Dev. Fund Corp.
| Decision Date | 11 July 2022 |
| Docket Number | Index Nos. 153822/2015,595841/2019,Motion Seq. No. 005 |
| Citation | 2022 NY Slip Op 32232 (U) |
| Parties | HESS 938 ST. NICHOLAS JUDGMENT, LLC, Plaintiff, v. 936-938 CLIFFCREST HOUSING DEVELOPMENT FUND CORPORATION, Defendant. 936-938 CLIFFCREST HOUSING DEVELOPMENT FUND CORPORATION Third-Party Plaintiff, v. MAVERICK REAL ESTATE PARTNERS LLC Third-Party Defendant. |
| Court | New York Supreme Court |
DECISION+ ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 136-153, 155-171 were read on the motion/cross-motion to/for LIMIT/ PRECLUDE/ COMPEL DISCOVERY.
Upon the foregoing documents, the motion and cross-motion are determined as follows:
This is a dispute over the alleged delivery and non-payment for home heating oil worth a grand total of $48,276.86. Had this action been commenced this year, it could have been brought in New York City Civil Court which now has a monetary jurisdiction up to $50,000.00.[1] Rather than reach a sensible outcome to a seemingly mundane retail commodity transaction the parties have engaged in over seven years of verily contested litigation for which both parties have surely incurred legal fees well more than the amount sought in the complaint. The litigation includes multiple claims of champerty of all things and discovery regarding same which has spiraled out of control. Hundreds of pages of depositions have been generated, interrogatories containing dozens upon dozens of inquiries as well as copious documents demands. In response, the parties have posited objection after objection.
Defendant 936-938 Cliff crest Housing Development Fund Corporation ("Cliffcrest") served demands for interrogatories and documents dated July 22, 2020. Plaintiff Hess 938 St Nicholas Judgment LLC ("Hess 938") and Third-Party Defendant Maverick Real Estate Partners, LLC, ("Maverick"), the apparent owner of Hess 938, served responses dated August 11, 2020. Cliffcrest then served notices for the depositions of Edward Martell and David Aviram, employees of either Hess 938 or Maverick. Cliffcrest deposed Edward Martell of Maverick on two separate dates. Thereafter, Cliff crest served supplemental document demands dated July 19, 2021, and July 20, 2021, to which Hess 938 and Maverick served an undated response. Finally, Cliffcrest served notices, all dated August 25, 2021, for the depositions of David Aviram, Jason Leibowitz, employees of either Hess 938 or Maverick, and Brock Kenyon, a former employee of Maverick.
Hess 938 and Maverick move pursuant CPLR §3103[a] for a protective order limiting and precluding Cliffcrest's discovery demands. Cliffcrest cross-moves to compel this discovery and for this Court to impose sanctions against Hess 938 and Maverick for their perceived dilatory tactics. The absurd excess of the memorandums of law in support and in opposition to the motions, totaling 76 pages, confirms the parties, and their attorneys, have lost all of perspective in this matter. Now, this Court is relegated to clearing up this nonsensical thicket of discovery.
Hess 938 seeks to prevent Cliffcrest from ascertaining "(1) the ownership structure and/or the finances of non-parties Maverick Lien Fund IV LP, Maverick Lien Fund V LP and/or Maverick Lien Fund V Co-Investor LP; and/or (2) unrelated loans, debts, properties and/or affiliates that are/were acquired, owned, and/or controlled by Maverick." Hess 938 and Maverick identify the alleged offending demands on these issues as Cliffcrest's Interrogatory Nos. 1, 3-11, 13-26, 29-31, 33 and 35-47, Cliffcrest's Supplemental Demand Nos. 1-10 and Cliffcrest's Second Supplemental Document Demand Nos. 1-8. In the alternative, Hess 938 and Maverick seek this Court to conduct an in camera review of the documents sought. Hess 938 and Maverick also move to strike the notices served for depositions of David Aviram, Jason Leibowitz and Brock Kenyon.
In civil litigation in New York, "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof (see CPLR §3101 [a]; Forman v Henkin, 30 N.Y.3d 656 [2018]). In other words, discovery in New York is liberal and broad (see Allen v Crowell-Collier Publishing Co., 21 N.Y.2d 403, 407 [1968]). This does not mean disclosure is limitless and courts are empowered to oversee discovery and set reasonable terms for its exchange (see generally Diako v Yunga, 148 A.D.3d 438 [1st Dept 2017]; Elmore v 2720 Concourse Associates, L.P., 50 A.D.3d 493 [1st Dept 2008]). A court's discretion to regulate disclosure is wide (see CPLR §3126; Forman v Henkin, supra) and includes the power to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure I device" (CPLR §3103).
At the outset, although Hess 938 and Maverick made timely objections to Cliffcrest's interrogatories, they concede in their memorandum of law (p. 16) they "failed to serve written objections to the disputed; demands and second notices of deposition." Hess 938 and Maverick this Court to excuse this delay pursuant to CPLR §2001. CPLR §3122[a][l] provides that a party serve an objection to a discovery demand within 20 days of the date of its service that sets forth the basis for the party's objections. Failure to serve such a response constitutes a waiver of any objection except those that are palpably improper or violate a recognized privilege (see CPLR §3101; Kiernan v Booth Memorial Medical Center, 175 A.D.3d 1396, 1397 [2d Dept 2019]; Wilner v Allstate Ins. Co., 71 A.D.3d 155, 168 [2d Dept 2010]; DG & A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 A.D.3d 1316 [3d Dept 2010]).
As to the branch of the Hess 938 and Maverick's motion to preclude Cliffcrest from seeking discovery as to the ownership structure and/or the finances of non-parties Maverick Lien Fund IV LP, Maverick Lien Fund V LP and/or Maverick Lien Fund V Co-Investor LP, the movants' memorandum of law states that Martell testified at his deposition that Hess 938 is entirely owned by Maverick Lien Fund IV LP and that Maverick acts on behalf of Lien Fund IV. It further states that Maverick directly manages Hess 938 and that Edward Martell and David Aviram manage Maverick. As such, the demand for this discovery is relevant, narrow in scope and not unduly burdensome. The motion papers are silent as to any supposed irrelevance of this discovery as to Maverick Lien Fund V LP and Maverick Lien Fund V Co-Investor LP. Contrary to the contention of Hess 938 and Maverick, they have failed to demonstrate how demands for this information was palpably improper so to warrant a protective order (see Ural v Encompass Ins. Co. of Am., 158 A.D.3d at 847; Woo v Shimunov, 273 A.D.2d 303 [2d Dept 2010]).
Maverick and Hess 938 have also failed to demonstrate how the objected to interrogatories of Cliffcrest are improper except for Interrogatory Nos. 4 and 37. No. 4 asks "Who manages, owns, or has any controlling interest in Hess?" As identified in the Interrogatory Definitions, "Hess" means Hess Corporation, no longer a party to this action. Likewise, No. 37 overbroadly asks for identity of any other litigations in which Hess 938 or Maverick are named parties.
In the August 11, 2020, response Hess 938 and Maverick set forth sixteen boiler plate objections to Cliffcrest's first set of interrogatories. As for the specific objections raised for the disputed interrogatories, essentially Hess 938 and Maverick asserted that they were "overly broad and/or lacking specificity." Otherwise, they claimed the interrogatories sought information which was not relevant. In their motion, Hess 938 and Maverick additionally claim in conclusory fashion, that the demands are done to harass Hess 938 and Maverick. These objections raised by Hess 938 and Maverick are unfounded and movants have failed to shoulder their burden to demonstrate that the demanded materials "are immune from discovery" (see Arch Ins. Co., Delric Constr. Co., Inc., 174 A.D.3d at 562 citing Ren Zheng Zheng v Bermeo, 114 A.D.3d 743, 744 [2d Dept 2014]; Melworm v Encompass Indem. Co., 112 A.D.3d 794, 795 [2d Dep 2013]; Schreiner v Long Is. Light. Co., 124 A.D.2d 578, 579 [2d Dept 1986]; Zimmerman v Nassau Hosp, 76 A.D.2d 921, 921-922 [2d Dept 1980]).
Interrogatory Nos. 1, 3, 5-11 seek witness information, specifically identifying people with knowledge of the claims alleged in the complaint, a timeline of when and whom the judgment was assigned and to identifying those involved with the assignment as well ownership and controlling interests of Hess 938, Maverick, Maverick Lien Fund V LP and Maverick Lien Fund V Co-Investor LP. These interrogatories seek relevant information that are not overbroad or burdensome (see generally, Albert v Time Warner Cable, 255 A.D.2d 248 [1st Dept 1998]). Cliffcrest is entitled to know who or what owns Hess 938 as well as Maverick since this information necessarily informs the decision-making process germane to this case. The need for confidentiality does not override an obligation to disclose material information. Any perceived sensitive information can be protected by a confidentiality agreement between the parties (see Lauro v Top of the Class Caterers, 169 A.D.2d 708, 709 [2d Dept 1991]; Wilensky v JRB Marketing & Opinion Research, 137 A.D.2d 520 [2d Dept 1988]; compare Alpha Funding Group v Continental Funding, LLC, 17 Misc.3d 959 [Sup Ct. Kings County, 2007]).
Interrogatory Nos. 13-18 seek all communications regarding the home heating fuel transactions at issue, the job title, job responsibilities, and financial interest in Maverick of Edward Martell, David Aviram, Jason Leibowitz, James Yetter and David Pan. Clearly, these...
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