Gadamian v. Channing

(Sup. Ct. N.Y. Cty. 12/18/02)

We represented: Plaintiff-Landlord

Hon. Harold B. Beeler, J.S.C.

DECISION and ORDER

Defendant WALTER CHANNING (&#34defendant tenant&#34) moves, by order to show cause, for an order (i) compelling plaintiff landlord REDACTED (&#34plaintiff landlord&#34) to produce documents and information requested of him at his November 6, 2001 deposition and (ii) prospectively directing that plaintiff landlord answer all questions at his continued deposition, except as to privileged matters, Plaintiff landlord cross-moves for a protective order.

Defendant tenant argues that by stipulation dated January 16, 2002 (so ordered by Justice Alice Schlesinger [&#34stipulation&#34]), plaintiff&#39s counsel agreed to produce all documents requested at plaintiff landlord&#39s November 6, 200 deposition (&#34deposition&#34), thus waiving all objections made at the deposition. Defendant&#39s affirmation dated September 20, 2002 [&#34Def. Aff.&#34] at &#39s 6, 7 and 8. Plaintiff&#39s counsel, to the contrary, contends that when she signed that stipulation, she was only agreeing to provide the balance of the requested items to which she made no objection. Plaintiff&#39s affirmation dated October 3, 2002 [&#34P.&#39s Aff.] at &#39s 9 & 10. The Court agrees with plaintiff&#39s counsel that her actions did not amount to a waiver of the deposition objections. Accordingly, the Court will review the propriety of each of the defendant tenant&#39s discovery requests.

Although discovery is broad (see, e.g., Allen v. Crowell-Collier Publishing Company, 1 N.Y.2d 403, 288 N.Y.S.2d 449 (1968); CPLR 3101 [a]), it is not unlimited. &#34Where the material is not privileged, the question is whether the requested documents are &#39material and necessary&#39 (CPLR 3101[a]).&#34 Robinson v. Meca, 214 A.D.2d 246, 249; 632 N.Y.5.2d 728, 730 (3d Dep&#39t 1995). With regard to depositions, &#34there is always the possibility of questions that infringe upon a privilege, or that are so improper that to answer them will substantially prejudice the parties; or questions that may be so palpably and grossly irrelevant or unduly burdensome that they should not be answered.&#34 White v Martins, 100 A.D.2d 805, 474 N.Y.S.2d 733, 733 (1st Dep&#39t 1984).

Defendant tenants multiple discovery requests (which include both a request for documents as well as a request for responses to multiple questions posed to plaintiff landlord at his deposition which plaintiff&#39s counsel objected to and directed him not to answer) can be categorized as follows:

(i) documents and information relating to NAME REDACTED (&#34ERC&#34);

(ii) documents and information, and/or financial documents and information, in connection with plaintiff landlord&#39s interest/investments in assorted real estate partnerships and a carpet business (&#34NAME REDACTED&#34);

(iii) plaintiff landlord&#39s tax returns from 1974 through 2000;

(iv) documents and information by which plaintiff landlord may have received, from his attorney, a copy of defendant&#39s original lease;

(v) a list of (by caption, venue and index number) and information regarding all of plaintiff s prior lawsuits.

The Court finds that any and all documents and information relating to ERC&#39s relationship to plaintiff landlord and the subject premises are discoverable. Although ERC is not a named party is this case, it was the &#34petitioner-landlord&#34 on behalf of the plaintiff landlord against the defendant tenant in a 1983 Civil Curt action before The Honorable Edward Lehner, (NAME REDACTED v Walter Channing, Jr., Index No. L&T 70023/83) regarding the subject premises. Moreover, the defendant tenant has advanced a counterclaim, for unlawful harassment in support of which, at least in part, he alleges that, in or about January 1999, ERC, on behalf of plaintiff landlord, complained to the Department of Buildings that the defendant tenant was illegally occupying the front/rear basement. Plaintiff landlord is thus directed to provide, within two (2) weeks of the date of this order the following documents and information with regard to ERC:

  • documents regarding the formation, ownership, and plaintiff landlord&#39s relationship with ERC;
  • the names and addresses of landlord&#39s siblings who have an interest in ERC; and
  • documents evidencing and/or relating to the transfer of ownership of the building at issue in this litigation by and between ERC and plaintiff landlord.

Defendant tenant further argues he is entitled to documents and information and/or financial documents and information (such as operating statements, profit and loss statements, subscription agreements, tax returns, K- 1s, and partnership agreements), in connection with plaintiff landlord&#39s interests/investments in assorted real estate partnerships and a carpet business (&#34NAME REDACTED International&#34) because &#34it bears upon plaintiff&#39s sophistication and business acumen.&#34 (Def.&#39s Aff. at 11). Plaintiff landlord argues that these requests for &#34income and asset information&#34 are unduly burdensome and are not material or necessary to the merits of this action. (P.&#39s aff. at 13). In this Court&#39s view, these financial requests are too far removed from the facts in controversy here to be not material or necessary. It is unnecessary for defendant tenant to have in his possession the above financial documentation in order to obtain information concerning the plaintiff landlord&#39s sophistication and business acumen. To satisfy any need for discovery relating to plaintiff landlord&#39s sophistication and business acumen, defendant tenant may, however, inquire at plaintiff landlord&#39s continued deposition about the general nature and makeup of these various business entities. However, plaintiff landlord need not respond to financial questions, such as those asked at his prior deposition but not answered, concerning:

  • the net income, gross sales, and rent paid by his carpet business (Id.);
  • the broker and amounts paid or financed regarding his purchase of the building in which he operates his carpet business (Id. at 70-71);
  • the income he receives from his real estate investments. (Id. at 71).

Plaintiff landlord&#39s income tax returns are not discoverable. It is well settled that &#34because of their confidential and private nature disclosure of tax returns is disfavored, and defendants are required to establish that the information contained in the returns they seek is indispensable to this litigation and unavailable from other son sources.&#34 Nanbar Realty Corp v. Pater Realty Company, 242 A.D.2d 208, 209, 661 N.Y.S.2d 216, 218 (1st Dep&#39t 1997); Briton v. Knott Hotels Corporation, 111 A.D.2d 62,489 N.Y.S.2d 186,187 (1st Dep&#39t 1985). Defendant tenant has not made a showing that the information contained in plaintiff landlord&#39s tax returns is indispensable to this litigation and unavailable from other sources.

Defendant tenant&#39s request for documents and information by which plaintiff landlord may have received, from his attorney, a copy of defendant tenant&#39s original lease is denied as these items are protected by the attorney-client privilege and/or attorney work product exclusion. CPLR §3101(b); CPLR §3101(c}.

With regard to defendant tenant&#39s request for documents and information regarding all of plaintiff&#39s prior lawsuits, plaintiff landlord need not produce the requested itemized list by caption, venue and index number. However, inquiry may be made of plaintiff landlord at his continued deposition, regarding landlord tenant lawsuits that relate to a landlord/tenant lease dispute.

Plaintiff landlord is further directed to respond, at his continued deposition, to questions previously asked but not answered regarding:

  • his residence (deposition at 4);
  • the address of plaintiff landlord&#39s accountant1 ( Id. at 11);
  • whether he owns the building or residence in which he lives (Id. at 18);
  • how long he, has owned or had an interest in his carpet business (Id. at 18);
  • the number of employees paid by his carpet business (Id. at 69-70).

Defendant tenant&#39s request that plaintiff landlord be prospectively directed to answer all questions at his continued deposition, except as to privileged matters, is denied. To grant such application would be reversible error, as it would deprive opposing counsel of the right to move for a protective order regarding questions that are substantially prejudicial, palpably and grossly irrelevant or unduly burdensome. See, White v. Martins, supra, at 805; it is therefore

ORDERED that defendant tenant&#39s motion to compel is granted in part and denied in part and plaintiff landlord&#39s cross-motion for a protective order is granted in part and denied in part; and it is further

ORDERED that the continuation of plaintiff landlord&#39s deposition shall take place no later than the first week of December 2002 at, as per counsel&#39s request, the Supreme Court, New York County courthouse located at 71 Thomas Street. A status conference is directed on December 10, 2002 at 10:00 am at Part 9, 71 Thomas Street, Room 304.

This constitutes the decision and order of the Court.

Dated: October 18, 2002

ENTER:

Harold B. Beeler, J.S.C.

1 Since plaintiff landlord agreed, at his deposition, that he would provide this information (dep. at 11), the Court directs that it be served within one (1) week of the date of this order.