France, Esq. and supporting papers. Affirmation of John 0

1

France, Esq. and supporting papers.Affirmation of John 0.

France, Esq. and supporting papers;Affirmation of Joseph Brasile, Esq. and supporting papers;Reply

& Giannuzzi, Esqs.405 Park AvenueNew York, New York 10022

The following papers were read on Plaintiffs motion for a protective order:

Notice of Motion;Affirmation of John 0.

France, Esq.120 Mineola, Blvd.Mineola, NY 11501

ATTORNEY FOR DEFENDANTSDonovan

004/MOT D

ATTORNEY FOR PLAINTIFFJohn 0.

“HomeCare America” at 111Jericho Turnpike, Mineola, NY.

Defendants.X

Motion R/D: 3-16-01Submission Date: 3-16-01Motion Sequence No.:

HOMECAREALLIANCE, INC., VINCENT BARATTA,WITHROP SOUTH NASSAU UNIVERSITYHEALTH SYSTEM, INC INC. and“HOMECARE AMERICA OF MINEOLA”,being a fictitious entity, if any, comprised ofHoemcare Alliance, Inc. and Winthrop SouthNassau University Health System Inc., whoseexact name is unknown to Plaintiff, doingbusiness as

HOMECAREAMERICA HOLDINGS, INC.,

HOMECARE AMERICA SUPPLY OFMANHASSET, INC.,

-- against

IAS TERM, PART 25 NASSAU COUNTY

PRESENT:HONORABLE LEONARD B. AUSTIN

Justice

800 NORTHERN CORPORATION,Plaintiff,

X

- STATE OF NEW YORK

10657/99

SUPREME COURT

INDEXNO.

HomeCare Manhasset’s assets to the various corporate

HomeCare Manhasset was a “financially secure” corporation; (4)

fraudulently conveyed

HomeCare Manhasset in order to perpetrate a fraud upon the Plaintiff; (3) falsely

represented that

HomeCare Manhasset’s liabilities and obligations; (2) utilized

HomeCare Manhassett’s

assets and assumed

(“HomeCare America”).

The complaint avers in this respect, that Baratta, together with the other

corporate Defendants : (1) “intermingled” their assets with

HomeCare America Holdings

Corporation

HomeCare Manhasset and codefendant

HomeCare

Manhasset improperly vacated the premises prior to the expiration of the 1 O-year

leasehold.

In addition to the claims predicated upon a breach of lease theory, Plaintiff has

also interposed separate claims against various corporate entities, which were not

signatories to the lease, and Vincent Baratta, who the complaint identifies as a principal

of both

HomeCare Manhasset breached the lease in October, 1998,

by failing to pay rents then due and owing; and (2) that in March, 1999,

(“HomeCare

Manhasset”) with which it entered into a 10 year, commercial lease agreement. The

complaint alleges that: (1)

HomeCare America Supply of Manhasset

HOMECARE AMERICA SUPPLY, et al.,Index No. 10657-99

Plaintiff 800 Northern Corporation commenced the within action against

tenant/codefendant

800 NORTHERN CORP. v.

HomeCare Manhasset’s lease obligation; and (2) the Plaintiff was

otherwise negligent by failing to secure a written guarantee when the lease

negotiations were conducted.

By Preliminary Conference Order dated February 23, 2000, the parties agreed

3

HomeCare America rests upon

submissions, their principal defense

that theory that (1) the Plaintiff improperly sued the various Defendants in an attempt to

obtain a guarantor of

inferalia, Baratta and

HomeCare

Manhasset were “the same company”.

As gleaned from the Defendants ’ opposing

to the claims interposed against,

HomeCare America and

“HomeCare Manhasset” was merely a

bookkeeping procedure and that, in reality,

“HomeCare Manhasset” was the entity listed as the tenant in the

lease agreement. According to Cacoulidis, however, codefendant Baratta expressly

informed him that the use of the name

HomeCare Manhasset,

notwithstanding that


codefendants, and/or other entities; and (5) made additional misrepresentations on

which Plaintiff relied to its detriment.

Significantly, a review of the October 9, 2000 deposition of the Plaintiffs

principal, John Cacoulidis, reveals that during the lease negotiations, Cacoulidis

claimed to have been under the impression that the Plaintiff corporation had entered

into the lease agreement with the “parent” company of


1

denied in part.

4

1,200O. At that time, it was agreed that discovery demands could be

served in writing on or before December 15, 2000. By letter dated December 15, 2000,

Defendants served their demands for discovery and inspedion.

Upon the instant notice of motion, the Plaintiff moves pursuant to CPLR 3103(a)

for a protective order with respect to certain of the demands and requests made

contained in the Defendants ’ December 15 letter. The motion is granted in part and

conferenced on

December

11,200O.

Thereafter, and inasmuch as no discovery had as yet been conducted, the

Plaintiff moved by order to show cause for an extension of the discovery deadline set

forth in the Court ’s July 12 order, which extension was granted by order dated August

4, 2000 (Martin, J.).

In pertinent part, the Court ’s August 4, 2000 Order directed Defendants to

provide responses by a date certain to the then outstanding discovery requests. The

within matter was subsequently transferred to the undersigned and

J.), certified the within matter

as ready for trial and directed Plaintiff to file a note of issue within thirty days thereof.

Trial was scheduled for November

HOMECARJZ AMERICA SUPPLY, et al.,Index No. 10657-99

to serve all discovery demands within 45 days thereof. Responses were to be provided

within 45 days of receipt of any such demand.

By order dated July 12, 2000, the Court (Martin,


@st being one of “usefulness

and reason” (Allen v. Crowell-Collier, Pub. Co., supra), demands which are lacking in

specificity, open ended, unduly burdensome, or which seek irrelevant and/or immaterial

information, are improper and subject to vacature. CPLR 3120 (a)(2). See, Vasile v.

1997]), with the [2”d Dept.

Schioopa v. Pallotta, 242

A.D. 2d 698, 663, N.Y.S. 2d 51

supra; and

“[tlhere shall be full disclosure of

all matter material and necessary in the prosecution or defense of an action ’:. See,

Allen v Crowell-Collier, Pub. Co., 21 N.Y. 2d 403, 288 N.Y.S. 2d 449 (1968); and

Cynthia B. v. New Rochelle H OSP. Med. Center, 60 N.Y. 2d 452,470 N.Y.S. 2d 122

(1983). While the disclosure provisions of the CPLR are to be liberally construed

(Cynthia B. v. New Rochelle H OSP. Med. Center,


Preliminarily, Plaintiff’s assertion that the Defendants waived their right to further

discovery and inspection is unpersuasive. Irrespective of the position previously taken

by the Defendants prior to the December 1, 2000 conference, it is undisputed, as the

Plaintiff’s counsel concedes, that an agreement was reached at the conference

pursuant to which “discovery demands must be made in writing by December 15,

2000”. Inasmuch as the presently objectionable demands appear to have been made

in accord with the foregoing agreement, the Plaintiff ’s contention that the Defendants

somehow waived their entitlement to further disclosure must be rejected.

CPLR 3101 (a) provides, in relevant part, that

CORP. v. 800 NORTHERN

“[c]opy of John Cacoulidis degree

in Civil Engineering from Columbia University, ” is not evidence material and necessary

to the defense of this action. Parimist Fundinq Corp. v. Rvdzinski, supra; CPLR

,‘I which requests a

(3rd Dept. 2000).

Turning to the specific objections interposed, and with the foregoing principles in

mind, the Court concludes that Items “I”, “4,” “5” and “6” are lacking in materiality and

relevance when measured against the pertinent issues framed by the pleadings and

other pertinent materials.

More particularly, Item “1

Racinq Inc. v. Roemer, 274 A.D. 2d 887, 711 N.Y.S. 2d

603

Lipin v. Bender, 84 N.Y. 2d 562, 620 N.Y.S. 2d 744 (1994); Allen v.

Crowell-Collier, Pub. Co., supra; Weqman v. Weqman, 37 N.Y. 2d 940, 380 N.Y.S. 2d

649 (1975); Saratoqa Harness

(2nd Dept. 1998).

Significantly, the court possesses broad discretion to limit discovery in order to

avoid unreasonable annoyance, expense, embarrassment, disadvantage or other

prejudice. See,

Seton HOSP., Inc., 247 A.D. 2d 513, 668 N.Y.S. 2d 912

Balelv(2”d Dept. 1999); Harrison v.

(2nd Dept. 1995); Finn v. Town of

Southampton, 266 A.D. 2d 429, 698 N.Y.S. 2d 539

(2nd Dept. 1999). See also, Parimist Fundinq

Corp. v. Rydzinski, 215 A.D. 2d 738, 627 N.Y.S. 2d 95

Godwin,

264 A.D. 2d 832, 696 N.Y.S. 2d 420

(2nd Dept. 2000); and Schobel v.


Chisena, 272 A.D. 2d 610, 707 N.Y.S. 2d 681


Seton HOSP., Inc., supra.

Likewise, Items “14” through “17” suffer from the same general infirmity. They

are either of questionable materiality and/or improperly demand “any and all ”

7

Balelv

1985]), is open-ended in terms

of the time-frame referenced, overbroad and/or lacking in materiality and relevance.

See, Hualde v. Otis Elevator Co., supra; Harrison v.

[2nd Dept.

19811; Hudson Val. Tree v.

Barcana, 114 A.D. 2d 400, 494 N.Y.S. 2d 124

[2nd Dept.

19971; Haroian v.

Nusbaum, 84 A.D. 2d 532,443 N.Y.S. 2d 91

[lst Dept.

“7,” which is prefaced by the disfavored generality, “any and all” (Hualde v.

Otis Elevator, Co., 235 A.D. 2d 269, 652 N.Y.S. 2d 38

“6” request, respectively, the ‘filing receipt with respect to [the]

incorporation of the Plaintiff, ” and certain stock certificates issued by the Plaintiff

corporation. Such demands are similarly lacking in materiality and relevance under the

circumstances presented.

Items

(2nd Dept. 1986).

Items “5” and


3101 (a). In any event, Cacaoulidis has already supplied deposition testimony respect

to his educational background.

In addition, the materials requested in Item “4” bear upon, or materially relate to,

matter necessary to the defense of the action. Item “4” requests the Plaintiff’s

certificate of incorporation and further attaches an impermissibly vague and overbroad

demand for “any and all amendments thereto ”. See, Benzenberq v. Telecom Plus of

Upstate New York, Inc., 119 A.D. 2d 717, 501 N.Y.S. 2d 131


Svstems Intern. Corp. v. Chemical Bank, 78

N.Y. 2d 371,575 N.Y.S. 2d 809 (1991). It is well settled that the privilege is limited to

communications, not underlying facts. See, Spectrum Svstems Intern. Corp. v.

Chemical Bank, supra. The party opposing disclosure bears the burden of establishing

8

§ 73. See also, Spectrum 2d, Disclosure,

toa client.” See, 44 N.Y. Jur.

“[t]he attorney-client privilege applies to material prepared

by the attorney for himself in his professional capacity, to communications from a client

to an attorney, and to communications from an attorney

HomeCare Manhasset. Plaintiff generally

objects to the foregoing item solely upon the ground that it seeks, documents which fall

within the attorney/client privilege in that the demand requests notes, letters or other

documents drafted by Daniel Dornfeld. See, CPLR 3103(b).

Generally speaking,

HomeCare America and

“13”, shall be produced in accord with the

specific limitations set forth in defense counsel ’s opposing affirmation.

Item “25” demands “any and all ” notes, letters and “or other documents” drafted

by John Cacoulidis or attorney Daniel Dornfeld (who was Plaintiff ’s counsel during the

lease negotiations), relating to the lease and/or proposed lease between the Plaintiff

and Defendants


correspondence, letters, etc., without adequately particularizing the nature and precise

subject matter of the materials requested.

However, and as agreed to by Plaintiffs counsel in his reply affirmation, the

materials requested in items “10” through


alia, Defendant Baratta in the

verified complaint were premised upon factual statements allegedly made by Baratta at

this particular meeting, during which, according to Cacoulidis, Mr. Dornfeld may have

taken notes.

To the extent that Mr. Dornfeld took notes memorializing the alleged factual

representations on which certain claims of wrongdoing have been specifically based,

the notes are relevant and material to the defense of the action and should be

produced. It bears noting that in its reply papers, the Plaintiff has not offered any

rebuttal or opposition to the Defendants ’ arguments relative to the production of these

notes.

The Plaintiff shall also comply with that portion of Item “25” which seeks notes,

etc., drafted by Cacoulidis himself with respect to the referenced subject matter,

9

(2nd Dept. 1999).

With respect to the branch of the demand which requests notes, letters, etc.,

drafted by Plaintiffs then-counsel Daniel Dornfeld, the Defendants ’ opposing

submissions have apparently narrowed the requested materials to notes taken by Mr.

Dornfeld during a meeting conducted with Mr. Baratta on June 6, 1997. Mr. Cacoulidis

testified that certain misrepresentations attributed to, infer


the existence of the privilege, and conclusory assertions will not suffice. See, Kellner v.

General Motors Corp., 273 A.D. 2d 444, 712 N.Y.S. 2d 363 (2000); Bib Constr. Co. Inc.

v. Citv of Pouqhkeepsie, 260 A.D. 2d 590, 687 N.Y.S. 2d 284


“38”]; and (4) other than as requested in Item “37,” “all”

10

“37”]; (3) other than as requested in Item “36,”

copies of “all” leases entered into by the Plaintiff which “relate to the period up to and

including June, 1997” [Item

“36”]; (2) “all” lease guarantees

drafted for the Plaintiff by Dornfeld [Item

(2”d Dept. 1999);

and Parimist Fundinq Corp. v. Rydzinski, supra.

Items “36” through “39” are overbroad, and of questionable materiality and

relevance when measured against the claims actually advanced in the Plaintiff ’s verified

complaint, inasmuch as they demand: (1) copies of “all leases entered into by the

Plaintiff which were drafted by Mr. Dornfeld [Item

-See, In Re Matthews, 266 A.D. 2d 290, 698 N.Y.S. 2d 509

1996]), or to evidence which is material and necessary to the defense of the

matter:

[lst Dept.

bread’th of its application. The Court will not require

the Plaintiff to turn over its bank statements to the Defendant upon the conclusorily

framed predicate advanced in support of this demand.

Similarly, item “34,” which requests bank statements from North Fork Bank

“reflecting the security deposit” received by the Plaintiff, does not relate to any disputed

issue in the action (Barroso v. Citv of New York, 228 A.D. 2d 379, 644 N.Y.S. 2d 723

- a demand which is improper

by virtue of the potentially unlimited

HomeCare Manhasset


inasmuch as no objection has been interposed to this branch of the demand.

Item “26” demands the Plaintiff’s bank statements, reflecting deposits of “all

checks” received from Defendant


( 2 ”dD ep t.1965 ).

11

( 2nd D ep t. 1986 ); and B enson v .

M u rr,23 A . D .2d 756 ,258 N . Y . S .2d 566

& S ons

C on tr. C o ., I nc ., 116 A . D . 2d 622 , 497 N . Y . S . 2d 707

D i s t. v . S . Za r a ( 2nd D ep t. 1986 ); Je ri cho W a t e r

B e r v l, 118

A . D . 2d 705 , 499 N . Y . S . 2d 980

supra; M a tt e r o f

“41 ” appea r s t o de m and

in f o r m a ti on t ha t i s pub li c i nna t u r e and t hus o t he r w ise ava il ab le t o t he D e f endan t s upon

app r op ri a t e r eques t. S ee ,H ua lde v . O ti s E leva t o r C o .,

“41 ” con t a ins a b r oad ly fr a m ed de m and f o r “ any and a ll” no ti ces o f

d i sso lu ti on r ece ived by t he P la in tiff fr o m t he S ec r e t a r y o f S t a t e , a r eques t w h ich i s

open - ended and a tt enua t ed i n t e r m s o f it s pu r po rt ed m a t e ri a lit y and r e levance t o t he

de f ense o f t he ac ti on . The C ou rt f u rt he r no t es t ha t It e m

* * * up t o an i nc lud ing June , 1997 .”

It e m


gua r an t ees o f l eases p r ov ided t o t he P la in tiff w h ich “r e la t e t o t he pe ri od up t o and

inc lud ing June , 1997 .” These open - ended de m ands , w h ich a r e po t en ti a ll y r edundan t

and v irt ua ll y un li m it ed i n t e r m s o f t he sub jec t m a tt e r and / o r t ype o f p r ope rt y r e f e r enced ,

e ff ec ti ve l y r equ ir e t he P la in tiff t o p r oduce each and eve r y l ease ag r ee m en t and / o r

gua r an t ee it has eve r en t e r ed i n t o p ri o r t o t he spec ifi ed cu t o ff da t e o f “ up t o an

inc lud ing June , 1997 ”.

It e m “40 ” i s undu ly b r oad and bu r denso m e . It r eques t s , w it hou t any beg inn ing

ti m e fr a m e , and w it hou t r easonab ly c ir cu m sc ri b ing t o w ho m it i s r e levan tl y app li cab le ,

“a ll” fi nanc ia l s t a t e m en t s p r ov ided t o t he P la in tiff * * * by t enan t s and p r ospec ti ve

t enan t s

.


200120

L

JUN

18,200l Hon. LEONARD B. AUSTIN, J.S.C.

(lst Dept. 1995).

Accordingly, it is,

ORDERED, that Plaintiff’s motion for a Protective Order is granted only with

respect to Items 1, 4, 5, 6, 7, 14, 15, 16, 17, 26, 33, 34, 36, 37, 38, 39, 40 and 41 and

to the extent indicated herein; and it is further,

ORDERED, that, in all other respects, Plaintiff shall comply with Defendants ’

Discovery and Inspection dated December 15, 2000 with thirty (30) days of the date of

this Order.

This constitutes the decision and Order of the Court.

Dated: Mineola, NYJune

Operatinq, Inc. v. Two Penn Plaza Assocs., 215 A.D. 2d

231, 626 N.Y.S. 2d 194


Lastly, Item “33” requests all pleadings filed in a certain lawsuit mentioned by

Mr. Cacoulidis in his deposition. The Defendants do not dispute that these materials

constitute publicly available documents which can be obtained by them on their own

accord. See, Penn Palace


Documents

France, Esq. and supporting papers. Affirmation of John 0