Reus v. ETC Hous. Corp.

• Citation: 203 A.D.3d 1281,164 N.Y.S.3d 692
• Decision Date: 03 March 2022
• Docket Number: 532765, 532769, 532823
• Parties: Frederick REUS et al., Appellants, v. ETC HOUSING CORPORATION et al., Respondents, et al., Defendants.
• Court: New York Supreme Court Appellate Division

203 A.D.3d 1281
164 N.Y.S.3d 692

Frederick REUS et al., Appellants,
v.
ETC HOUSING CORPORATION et al., Respondents, et al., Defendants.

532765, 532769, 532823

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

Calendar Date: January 10, 2022
Decided and Entered: March 3, 2022

164 N.Y.S.3d 694

Alan Paul Weinraub, Champlain, for appellants.

Gerber Ciano Kelly Brady LLP, New York City (Brendan Fitzpatrick of counsel), for ETC Housing Corporation and another, respondents.

Finnerty Osterreicher & Abdulla, Buffalo (Joseph M. Finnerty of counsel), for Plattsburgh Press Republican, respondent.

O'Connor, O'Connor, Bresee & First, PC, Albany (Elizabeth J. Grogan of counsel), for The Legal Aid Society of Northeastern New York and another, amici curiae.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from an order of the Supreme Court (Lawliss, J.), entered September 10, 2020 in Clinton County, which, among other things, granted a motion by defendants ETC Housing Corporation and Shauna Miller to quash a subpoena, (2) from an order of said court, entered December 3, 2020 in Clinton County, which, among other things, denied plaintiffs’ motion for renewal and reargument, (3) from an order of said court, entered January 8, 2021 in Clinton County, which imposed sanctions on plaintiffs’ counsel, (4) from an order of said court, entered April 26, 2021, which granted a motion by defendants ETC Housing Corporation and Shauna Miller for, among other things, summary judgment dismissing the complaint against them, and (5) from an order of said court,

164 N.Y.S.3d 695

entered May 6, 2021 in Clinton County, which granted a motion by defendant Plattsburgh Press Republican for, among other things, summary judgment dismissing the complaint against it.

Plaintiffs, at all relevant times, were the owners of an apartment complex known as Gray Gables located in the Town of Chazy, Clinton County. In April 2018, defendant Plattsburgh Press Republican (hereinafter the Press Republican) published an article highlighting ongoing issues that former tenants of Gray Gables were experiencing while living there. As relevant to this appeal, prior to the article's publication, the Legal Aid Society of Northeastern New York (hereinafter LAS) represented these former tenants in their lawsuits. Defendant Shauna Miller, Executive Director of defendant ETC Housing Corporation (hereinafter collectively referred to as the ETC defendants), conducted inspections of Gray Gables on behalf of ETC. Following Press Republican's publication of the article, plaintiffs commenced the instant action against the ETC defendants and Press Republican (hereinafter collectively referred to as defendants) alleging, as relevant to this appeal, causes of action for libel and tortious interference with business relationships related to the publication of the article. Defendants joined issue and, shortly thereafter, the ETC defendants moved to dismiss the complaint. Supreme Court partially granted the motion by dismissing the claims against defendant Melissa Haber – an employee of ETC – and dismissing certain causes of action related to the ETC defendants. The ETC defendants thereafter moved for leave to reargue and renew certain portions of the motion to dismiss that had been denied and Supreme Court, among other things, granted leave to renew and dismissed the remaining causes of action in plaintiffs’ complaint, except for the libel and declaratory judgment claims.

In May 2020, Supreme Court sent a letter to the parties following a conference indicating that the discovery deadline was extended until June 30, 2020. Shortly thereafter, nonparty LAS was subpoenaed by plaintiffs and LAS responded by, among other things, moving to quash the subpoena; that motion was granted as the subpoena was facially insufficient. However, on July 2, 2020, plaintiffs attempted to serve an amended subpoena upon LAS after the discovery deadline passed. In response, the ETC defendants moved to quash the amended subpoena on the ground that it was untimely. Plaintiffs opposed and also filed a document entitled "Crossmotion to Amend Complaint[,] Substitute Parties [and] Compel Discovery." As intimated by the title of the document, it appears that plaintiffs sought to amend the complaint to add LAS and Tara Glynn, an LAS staff attorney, as defendants to the libel and tortious interference causes of action and to extend the discovery deadline. Notably, plaintiffs’ amended complaint sought to make substantial amendments to the original complaint. By order dated September 10, 2020, Supreme Court granted the ETC defendants’ motion and quashed the amended subpoena as it was in violation of the May 19, 2020 letter order which set June 30, 2020 as the discovery deadline. Supreme Court also denied plaintiffs’ cross motion in its entirety due to, among other things, plaintiffs’ failure to follow statutory motion requirements and to abide by the court's scheduling order.

Plaintiffs then moved for renewal and reargument, seeking again to amend the complaint, which motion Supreme Court denied by order dated December 3, 2020. By order entered January 8, 2021, Supreme Court found that plaintiffs’ attorney engaged in frivolous conduct with respect to their motion for renewal and reargument as, among other things, plaintiffs

164 N.Y.S.3d 696

failed to "make any cogent legal or factual arguments in support of the relief requested." As a result of this finding, the court sanctioned plaintiffs’ attorney. Then, in February 2021, defendants separately moved for summary judgment dismissing the complaint against them, and Supreme Court, in separate orders entered April 26, 2021 and May 6, 2021, dismissed plaintiffs’ complaint with prejudice. Plaintiffs appeal.

We turn first to plaintiffs’ contention that Supreme Court erred by quashing the amended subpoena. As to the motion to quash, "[a]s a general principle, it is well settled that a court ‘is vested with broad discretion in controlling discovery and disclosure, and generally its determinations will not be disturbed in the absence of a clear abuse of discretion’ " ( Lisa I. v. Manikas, 183 A.D.3d 1096, 1097, 123 N.Y.S.3d 734 [2020], quoting Seale v. Seale, 149 A.D.3d 1164, 1165, 51 N.Y.S.3d 647 [2017] ). Here, there is no dispute that the amended subpoena to LAS was issued after the discovery deadline set by the court, which was agreed to by the parties.¹ Moreover, as the court indicated, plaintiffs did have time between the grant of the first motion to quash the subpoena to LAS and the discovery deadline to reissue the subpoena, but they failed to do so. Therefore, we discern no abuse of discretion in Supreme Court's order quashing plaintiffs’ amended subpoena due to the passage of the discovery deadline as...