Shop Architects, P.C. v. 25th St. Art Partners LLC

• Decision Date: 01 December 2016
• Citation: 2016 N.Y. Slip Op. 08121,145 A.D.3d 447,41 N.Y.S.3d 708 (Mem)
• Parties: SHOP ARCHITECTS, P.C., Plaintiff–Respondent, v. 25TH STREET ART PARTNERS LLC, et al., Defendants–Appellants. [And a Third Party Action].
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 447

41 N.Y.S.3d 708 (Mem)

2016 N.Y. Slip Op. 08121

SHOP ARCHITECTS, P.C., Plaintiff–Respondent,

v. 25TH STREET ART PARTNERS LLC, et al., Defendants–Appellants.[And a Third Party Action].

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

Dec. 1, 2016.

Sills Cummis & Gross P.C., New York (James M. Hirschhorn of counsel), for appellants.

Seyfarth Shaw LLP, New York (Jerry A. Montag of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 5, 2015, which, to the extent appealed from as limited by the briefs, denied the motion of defendants 25th Street Art Partners LLC, 25th Street Art Holdings LLC, and Fidelity and Deposit Company of Maryland, to appoint an expert to conduct a forensic examination of plaintiff's computer system, unanimously affirmed, with costs.

The court's determination was a provident exercise of discretion (see generally Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 286, 863 N.Y.S.2d 193 [1st Dept.2008], affd. 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], cert. denied 559 U.S. 905, 130 S.Ct. 1301, 175 L.Ed.2d 1076 [2010] ). Discovery of electronically stored information may be court ordered where the party seeking such discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested (see Tener v. Cremer, 89 A.D.3d 75, 82, 931 N.Y.S.2d 552 [1st Dept 2011] ). Here, defendants do not seek any particular document, but instead seek an examination of plaintiff's drives to determine whether any documents exist that have not been exchanged or obtained from third parties. Although defendants had also previously sought to determine when particular invoices were created, plaintiff has admitted that they were all created together, outside of its accounting program, and backdated, mooting that basis for forensic examination of plaintiff's system.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAHN, JJ., concur.