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Lupe Development Partners, LLC v. Pacific Flats I, LLC

Supreme Court, New York County

August 9, 2013

LUPE DEVELOPMENT PARTNERS, LLC and STEVE MINN, Plaintiffs,
v.
PACIFIC FLATS I, LLC, PACIFIC FLATS II, LLC, FRED DEUTSCH and DEUTSCH DEVELOPMENT, Defendants. Index No. 108168/11

Unpublished Opinion

Motion Date: 02/08/13

DEBRA A. JAMES JUSTICE

The following papers, numbered 1 to 6 were read on this motion to quash.

PAPERS NUMBERED
Notice of Motion/Order to Show Cause -Affidavits – Exhibits.............1, ..... 2,
Answering Affidavits - Exhibits ............. 3, .......4,
Replying Affidavits – Exhibits.....................5, .......6.
Cross-Motion: [#] Yes [] No.

Upon the Foregoing papers,

The motion and cross-motion renew in substantial part the parties' prior applications in this matter based upon a previous subpoena served by plaintiffs-judgment creditors upon non-party-Penny Baird. The prior motions were denied (Order on Motion Seq. No 1, dated April 17, 2012, settled June 1, 2012) or otherwise mooted (Order on Motion Seq. No 2, dated April 17, 2012, settled June 1, 2012) due to plaintiff's failure to comply with CPLR 5224.

Plaintiff subsequently served a new subpoena dated May 31, 2012, (the "subpoena") upon non-party Penny Baird which was in most respects nearly identical to the first subpoena and the parties have now renewed their arguments with respect to the new subpoena that on its face remedies the defect of compliance with CPLR 5224. Movant Penny Baird moves for an order quashing the subpoena, issuance of a protective order, a change of venue, and the disqualification of plaintiffs' law firm. Plaintiffs' cross-move for a motion compelling a response to the subpoena.

CPLR 5223 provides that
At any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena, which shall specify all of the parties to the action, the date of the judgment, the court in which it was entered, the amount of the judgment and the amount then due thereon, and shall ...

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