Harfenist Kraut & Perlstein, LLP, Lake Success (Neil
Torczyner of counsel), for appellants.
Cohn, P.C., Carle Place (Jeffrey H. Weinberger of counsel),
Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.
Supreme Court, Bronx County (Laura G. Douglas, J.), entered
July 11, 2017, which, to the extent appealed from as limited
by the briefs, denied plaintiffs' motion to strike
defendants' answer for their failure to respond
completely to plaintiffs' discovery demands, and granted
defendants' cross motion to quash the subpoena served
upon defendants' counsel, unanimously modified, on the
law, to grant the cross motion only to the extent that the
subpoena sought documents, and remand to the motion court for
further proceedings consistent with this order regarding the
deposition of defendants' counsel, and otherwise
affirmed, without costs.
and Procedural Background
are two distributors of wholesale motor fuel to gas stations.
Defendant Cumberland Farms, Inc. (Cumberland) is the parent
company for defendant Gulf Oil, L.P. (Gulf), a seller of
wholesale motor fuel. Defendant Anjon of Greenlawn, Inc.
(Anjon) is a licensed distributor of Gulf fuel.
seek damages for tortious interference with contract as a
result of defendants' alleged role in the rebranding of
five nonparty franchises (the stations) from Mobil to Gulf.
In 2008, each of the stations entered into a separate
franchise agreement for a period of eight years with nonparty
ExxonMobil Oil Corporation (Mobil). Pursuant to assignment
agreements executed in 2010, Mobil conveyed its interest in
each of the franchise agreements to one of the two plaintiffs
in this action, which thereafter supplied the stations with
5, 2011, the stations commenced an action in Queens County
Supreme Court against the plaintiffs in this action entitled
Go Green Realty Corp. et al. v Liberty Petroleum Realty,
LLC et al., alleging fuel pricing irregularities. That
action was removed to federal court on August 1, 2011, and by
order dated March 30, 2015, the District Court granted
summary judgment dismissing the stations' complaint and
scheduled a trial on the counterclaims for violation of the
franchise agreements and liquidated damages (Go Green
Realty Corp. V Liberty Petroleum Realty LLC, 86 UCC Rep
Serv 2d 256 [SD NY 2015], affd 645 Fed.Appx 105 [2d
Cir 2016]). Defendants in that action (plaintiffs in this
action) ultimately prevailed on their counterclaims, and
recovered liquidated damages and counsel fees due under the
franchise agreements. Counsel for defendants in this action
represented the stations in the Go Green litigation.
April 17, 2015, plaintiffs commenced this action, in which
they allege that, in or about April 2012, defendants entered
into negotiations with the stations to supply Gulf fuel to
them, and that, approximately one month later, the stations
ceased buying Mobil fuel from plaintiffs, rebranded
themselves from Mobil to Gulf stations, and began selling
Gulf fuel purchased from Anjon. Plaintiffs allege that
defendants' actions constitute tortious interference with
the franchise agreements.
November 3, 2016, plaintiffs served a subpoena on
defendants' counsel seeking documents and deposition
testimony about his communications with Gulf and/or
Cumberland "in connection with their inducement of the
breach of contract which forms the basis" of their five
causes of action in this case for tortious interference.
Although defendants' counsel now represents Gulf and
Cumberland, there is no evidence that he represented them at
any time prior to this litigation, including at the time of
the events alleged in the complaint, the period as to which
plaintiffs seeks discovery.
did not respond to the subpoena. In December 2016,
plaintiffs, claiming that defendants had failed to comply
with discovery, moved to strike defendants' answer
pursuant to CPLR 3126. Defendants opposed the motion, and
defendants' counsel cross-moved for a protective order to
quash the subpoena served on him. The motion court denied
plaintiffs' motion and granted the cross motion.
that the motion court properly quashed the subpoena to the
extent that it sought documents . We further find that the
motion court should not have granted counsel's request
for a protective order prohibiting his deposition, and that
the matter should be remanded for further proceedings on that
issue. If, after further proceedings, the motion court denies
counsel's request for a protective order, the deposition
should proceed without prejudice to counsel's objection
to specific questions the answers to which would reveal
privileged or otherwise protected information (CPLR 3101).
Unlike the motion court, we reach those conclusions based on
state law rather than federal law. Finally, we find that the
motion court properly denied plaintiffs' motion.
3101(a) requires "full disclosure of all matter material
and necessary in the prosecution or defense of an
action." While trial courts "undoubtedly possess a
wide discretion to decide whether information sought is
material and necessary' to the prosecution or defense of
an action," such discretion is not unlimited (Allen
v Crowell- Collier Pub. Co., 21 N.Y.2d 403, 406 ),
and disclosure is required where it will "assist
preparation for trial by sharpening the issues and reducing
delay and prolixity" (id.).
same time, the CPLR protects from discovery attorney work
product, and, when affirmatively raised as it is here,
privileged communications (CPLR 3101[b], [c]), and permits a
court to issue a protective order "denying, limiting,
conditioning or regulating the use of any disclosure
device" where necessary "to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or other
prejudice to any person or the courts" (CPLR 3103[a]).
individual or entity who seeks a protective order bears the
initial burden to show either that the discovery sought is
irrelevant or that it is obvious the process will not lead to
legitimate discovery. Once this burden is met, the
subpoenaing party must "establish that the discovery
sought is material and necessary' to the prosecution or
defense of an action, i.e., that it is relevant"
(Matter of Kapon v Koch, 23 N.Y.3d 32, 34 ;
see also Spectrum Sys. Intl. Corp. v Chemical Bank,
78 N.Y.2d 371, 377 ). When the individual seeking a
protective order asserts attorney work product and/or
privilege, "the burden of establishing any right to
protection is on the party asserting it; ...