QUEENS:  When Plaintiff is searching for important documents in a litigation, may subpoenas be served?  What exactly is the scope of discovery of bank accounts and other potentially private information?

45-34 Pearson St. LIC, LLC v Ohana  2019 NY Slip Op 33294(U) September 25, 2019 Supreme Court, Queens County Docket Number: 706833/2016
Judge: Marguerite A. Grays give some guidance.

“Plaintiffs in this, inter alia, fraud action seek damages based upon an alleged fraudulent scheme by defendants Shai Ohana, Yescheskel Elias and Cadit Jacobi (collectively “the Ohana defendants”), to refinance property located at 45-35 Pearson Street, Long Island City, New York (“the property”). The vacant land property is owned by 45-34 Pearson Street LIC (“the Company”) but, in obtaining the fraudulent loans, Ohana, Elias and Jacobi represented that Ohana was the sole owner of the Company. Specifically, the complaint alleges that the Ohana, defendants used fake documents to take out four successive fraudulent mortgage loans in the Company’s name from the Lender defendants. ”

“CPLR 3 IOl(a) clearly provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof (see Spectrum Systems International Corporation v Chemical Bank, 78 NY2d 3 71; Quevedo v Eichner, 29 AD3d 554). The Court of Appeals has held that the words “material and necessary” be liberally interpreted to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay. The test shall be one of”usefulness and reason” (see Andon v 302-304 Mott
Street Assocs., 94 NY2d 74 0, 74 6 [2000]; Spectrum Systems International Corporation v Chemical Bank, supra; Allen v Crowell-Collier Pub!. Co., 21NY2d403, 406 [1968]; Parise v Good Samaritan Hosp., 36 AD3d 678 [2007]).

“An application to quash a subpoena should be granted’ [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ . . . or where the information sought is ‘utterly irrelevant to any proper inquiry’ ” (Anheuser-Busch, Inc. v Abrams, 71NY2d327, 331-332 [1988]; see Myrie vShelley, 237 AD2d 337, 338 [1997]; cf Ayubo v Eastman Kodak Co., 158 AD2d 641, 642 [ 1990]). It is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (see Velez v Hunts Point Multi-Service Center, Inc., 29 AD3d I 04, 112 [2006]). “It is … well settled that a
motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry” (Id.; see New Hampshire Ins. Co. v. Varda, Inc., 261 AD2d 135, 135 [ 1999]). “Moreover, the burden of establishing that the requested
documents and records are utterly irrelevant is on the person being subpoenaed” (Gertz v Richards, 233 AD2d 366, 366 [ 1996]). “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.