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 ; Spectrum Systems International Corporation v Chemical Bank, supra; Allen v Crowell-Collier Pub!. Co., 21NY2d403, 406 ; Parise v Good Samaritan Hosp., 36 AD3d 678 ).
“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 ; see Myrie vShelley, 237 AD2d 337, 338 ; 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 ). “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]). “