September 4, 2013
HL ARTT LLC, Seize Sur Vingt LLC, Helman Greene, Inc. and Christopher Lippuner, Plaintiffs,
Joshua PICKARD, Multi Construction, Inc. Roberts Dingle and Greene Street Dream Owners Corp., Defendants. No. 150354/2011.
This decision has been referenced in a table in the New York Supplement.
Sheps Law Group, P.C., Melville, for Plaintiffs.
Acito, Klein & Candiloros, PC, NY, for Defendant Joshua Pickard.
Decicco Gibbons & McNamara, PC, NY, for Defendant Greene St. Dream Owners Corp.
Kenney Shelton Liptak Nowak LLP, Buffalo, for Non-Party Mt. Hawley Insurance Company.
DORIS LING-COHAN, J.
The within motion by non-party Mt. Hawley, pursuant to CPLR §§ 2304 and 3103, to quash the subpoena duces tecum served upon it by plaintiffs and for for a protective order declaring that Mt. Hawley has no obligation to produce the documents sought by the subject subpoena is denied, as detailed below.
At the outset the court notes that the within motion is procedurally defective in that movant failed to supply an affirmation of good faith indicating that counsel conferred in an effort to resolve the discovery issues related to this motion, as required. See 22 NYCRR § 202.7(a) & (c).
Further, movant failed to follow the proper procedure for objecting to a subpoena. CPLR § 3122 provides, in relevant part, as follows:
" (a) [w]ithin twenty days of service of a ... subpoena duces tecum ... the ... person to whom the ... subpoena ... is directed, if that ... person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection. If objection is made to part of an item or category, the part shall be specified ...
(b) [w]henever a person is required pursuant to such ... subpoena duces tecum.. to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the ... subpoena duces tecum ... to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document ...
(d) ... The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery" .
In accordance with such procedure, the recipient of a subpoena is required to provide his or her objections to the discovery sought, in a response to the party seeking such discovery, rather than to the court in a motion for a protective order. See Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3122:1. " If the parties are then still at odds about their rights and obligations, it is the party who served the ... subpoena who must bring the dispute to court" . Id. Here, Mt. Hawley has not complied with such procedure, as no response to the subpoena was served by Mt. Hawley upon plaintiffs.
Additionally, Mt. Hawley has not supplied a privilege log, in accordance with CPLR § 3122(b), detailing the reasons for withholding the specific documents, the type of document, subject matter and sufficient information to identify the document. See Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3122:3; Anonymous v. High School for Environmental Studies, 32 A.D.3d 353 (1st Dept 2006). " [B]oilerplate claims of privilege, [as asserted here], are insufficient as a matter of law" . Anonymous v. High School for Environmental Studies 32 A.D.3d at 359. While it is certainly possible that portions of Mt. Hawley's claims file are privileged, it is inconceivable that all of the documents contained in the file are in fact subject to a legitimate privilege. Thus, a protective order is not warranted here.
The court notes that in this case, the information sought by the subject subpoena, pertain to defendant Multi Construction, Inc.'s work, which, it is alleged, resulted in a fire, causing damage to plaintiff. Significantly, Multi Construction Inc. has failed to appear in this action and a default has been entered against it, by order dated November 19, 2012. Thus, plaintiffs have been unable to obtain documentary discovery directly from Multi Construction, Inc., and served the subpoena on Mt. Hawley, in an attempt to obtain documentary discovery, that plaintiffs have been unable to obtain elsewhere. It is suggested by the court that counsel confer, within 30 days, with regard to the within discovery issues, and the parties agree that Mt. Hawley will supply the documentary discovery requested, redacted as to any information it claims is privileged.
The parties appeared before this court on July 18, 2013 for a discovery conference. Depositions of the parties have been ordered to be conducted on or before September 9, 2013 and September 16, 2013, and a note of issue has been ordered to be filed by September 30, 2013. All dates contained in this court's order dated July 18, 2013 are " firm" dates, as it has been over one (1) year since the filing of a request for intervention in this case, which exceeds the court system's standards and goals, as to the completion of discovery, and depositions have been ordered to be completed in at least two (2) prior court orders.
Accordingly, it is
ORDERED that the motion to quash and for a protective order by non-party Mt. Hawley is denied; and it is further
ORDERED that within 30 days of entry of this order, plaintiffs shall serve a copy of this order upon movant, as well as on all parties, with notice of entry.