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Ehrlich v. Incorporated Village of Sea Cliff

May 31, 2007

ROBERT EHRLICH, 100 ROSLYN AVENUE LLC AND SEA CLIFF COFFEE COMPANY, INC., PLAINTIFFS,
v.
THE INCORPORATED VILLAGE OF SEA CLIFF, EILEEN KREIB, INDIVIDUALLY AND AS MAYOR OF THE VILLAGE OF SEA CLIFF AND AS FORMER VILLAGE TRUSTEE, CLAUDIA MOYNE, INDIVIDUALLY AND AS FORMER MAYOR OF THE VILLAGE OF SEA CLIFF, RICHARD A. SIEGEL, INDIVIDUALLY AND AS VILLAGE ATTORNEY FOR THE VILLAGE OF SEA CLIFF, THE BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF SEA CLIFF, PAUL MARCHESE, PETER HAYES, ROBERT HAIM, AND ELENA VILLAFANE, INDIVIDUALLY AND CONSTITUTING THE BOARD OF TRUSTEES, THE ZONING BOARD OF APPEALS OF THE INCORPORATED VILLAGE OF SEA CLIFF, GEORGE BEVAD, THOMAS POWELL, JOHN BRADY, DINA EPSTEIN, JAMES O'DONNELL AND PATRICIA HARRIGAN, INDIVIDUALLY AND CONSTITUTING PRESENT AND FORMER MEMBERS OF THE BOARD OF ZONING APPEALS, THE PLANNING BOARD FOR THE INCORPORATED VILLAGE OF SEA CLIFF, JOHN D. NAGY, FRED EDER, GERARD IZZO, NORMAN PARSONS, AND LAURIE MARTONE, CONSTITUTING THE CURRENT MEMBERS OF THE PLANNING BOARD, AND DAVID DERIENZIS AND JEFFREY MONGNO, INDIVIDUALLY AND AS CURRENT AND FORMER BUILDING INSPECTORS FOR THE INCORPORATED VILLAGE OF SEA CLIFF, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

ORDER

I. PRELIMINARY STATEMENT

Before the Court is Plaintiffs' motion pursuant to Fed. R. Civ. P. 26, 34 and 37(a) to compel the inspection of the property located at 66 Altamont Avenue (the "Altamont property") pursuant to the "Notice to Enter Upon Land" served upon Defendant Village of Sea Cliff on February 3, 2007. Defendant Village of Sea Cliff has opposed the motion.

Having considered the parties' respective submissions, the oral arguments heard before me and the applicable law, I am DENYING Plaintiffs' motion for the reasons set forth below.

II. BACKGROUND

On February 1, 2007, Plaintiffs served a non-party subpoena upon the owner of 34 Woodbridge Lane, Sea Cliff, New York and also served Defendant Village of Sea Cliff with a Notice to Enter Upon Land, scheduling the inspection of the Altamont property for February 12, 2007. On February 8, 2007, Defendant Village of Sea Cliff moved by letter motion [DE 94] to quash Plaintiffs' non-party subpoena seeking to inspect the property located at 34 Woodbridge Lane. Defense counsel argued that the inspection was irrelevant to the issues raised in this litigation and was untimely because it could not be completed within the February 15 discovery deadline. Plaintiffs' counsel opposes that motion, arguing that because the property was owned by a non-party, Defendant lacked standing to quash the subpoena. With respect to the Altamont property, defense counsel has objected to Plaintiffs' notice, thereby "putting the burden on plaintiffs to move for an order compelling us to permit entry." [DE 94]

After hearing oral argument from both sides, I denied Defendant's motion to quash as to the 34 Woodbridge Lane property because "parties typically are deemed to lack standing to quash subpoenas issued to non-parties under Rule 45 absent a claim of privilege or some proprietary or personal interest in the subpoenaed matter." Tummino v. Von Eschenbach, No. 05-CV-366, 2006 U.S. Dist. LEXIS, at *12 (E.D.N.Y. Nov. 6, 2006). Since the 34 Woodbridge Lane property is owned by a third-party who has apparently consented to the inspection, and the Village Defendant has made no showing of privilege or any proprietary or personal interest in the subpoenaed matter, I found that the Village lacked the requisite standing sufficient to quash the subpoena.

However, insofar as the Altamont property is owned by the Village of Sea Cliff, it appears that the Defendant Village has standing to challenge this inspection. At the February 8, 2007 conference, Plaintiffs' counsel stated that she would move to compel with respect to the notice to inspect the Altamont property, but raised concern over the February 15, 2007 discovery deadline. Specifically, Plaintiffs' counsel stated that she was planning to have experts examine the 34 Woodbridge Lane property immediately. According to Plaintiffs, however, the cost would be far greater if Plaintiffs were required to inspect the 34 Woodbridge Lane property and the Altamont Avenue property separately. Plaintiffs' counsel stated that the inspection dates for the 34 Woodbridge Lane property were scheduled for February 12 and 13. I informed the parties during the February 8 conference that Plaintiffs had not explained the relevancy of either inspection to the underlying claims and defenses asserted in this case. Nonetheless, I granted Plaintiffs' requests for an extension of time beyond February 15, 2007, solely for the purpose of completing the inspection of both properties should counsel's motion to compel be granted. I further advised Plaintiffs' counsel that "if Plaintiffs choose to incur costs for proceeding with inspection and testing, then they are hereby warned that they do so at their own peril." [DE 95]

Plaintiffs now move pursuant to Rules 26, 34 and 37(a) of the Federal Rules of Civil Procedure to compel the inspection of the Altamont property pursuant to the Notice to Enter Upon Land served upon Defendant Village of Sea Cliff on February 3, 2007.*fn1

III. STANDARDOF REVIEW

A motion to compel is entrusted to the sound discretion of the district court. American Sav. Bank, FSB v. UBS Paine Webber, Inc., (In re Fitch, Inc.),330 F.3d 104, 108 (2d Cir. 2003); United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). The Second Circuit has noted that a "trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." DG Creditor Corp. v. Dabah, (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir. 1998) (citing Cruden v. Bank of N.Y., 957 F.2d 961, 972 (2d Cir. 1992)). A district court is considered to have abused its discretion "if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Fed. R. Civ. P. 34(a)(2), provides that:

Any party may serve any other party a request to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

Fed. R. Civ. P. 34(a)(2). Such a request must set forth the property to be inspected and "specify a reasonable time, place, and manner of making the inspection and performing the related acts." Fed. R. Civ. P. 34(b). The Second Circuit has held that with regard to a Rule 34 inspection, "the degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection." New York Assoc. for Retarded Children v. Carey, 706 F.2d 956, 961 (2d Cir. 1983). "Granting or denying a request under rule 34 is a matter within the trial court's discretion, and it will be reversed only if the action taken was improvident and affected substantial rights." Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir. 1958). Courts have repeatedly held that the scope of a Rule 34 request is governed by Rule 26(b). See, e.g., Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 907 (4th Cir. 1978); Macort v. Goodwill Indus.-Manasota, Inc., 220 F.R.D. 377, 379 (M.D. Fla. 2003). Fed. R. Civ. P. 26(b) describes the scope of, and limitations on, discovery in civil litigation. It provides as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. ... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of ...


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