Opinion
Index No. 59242/2016
01-10-2018
ASPHALT MAINTENANCE SERVICES CORP. and MARK REUSS, Plaintiffs, v. HENRY G. ONEIL, IMPERIAL ASPHALT AND AGGREGATE DISTRIBUTOR INCORPORATED and PALEEN CONSTRUCTION CORP., Defendants.
NYSCEF DOC. NO. 85 To commence the statutory time period for appeals as of right [CPLR 5513(a)], you are advised to serve a copy of this order, with notice of entry upon all parties. DECISION & ORDER Motion Date: Dec. 19, 2017 Seq. Nos. 2 & 3 LEFKOWITZ, J.
The following papers were read on the motion (Seq. #2) by plaintiffs seeking to compel further responses from defendants to certain demands in plaintiffs' Third Combined Discovery Demands dated October 10, 2017; and a further deposition of defendant Henry G. Oneil regarding Exhibit BB and conversations he had with his ex-wife; and on this motion (Seq. #3) by defendants seeking an order compelling production of the retainer/and or engagement agreement between plaintiffs and their counsel Robert Siegel, Esq. for this action; an Order precluding plaintiffs from introducing into evidence anything not produced during discovery; and a protective order prohibiting plaintiffs from discovering documents or information related to defendant Henry G. Oneil's (hereinafter "Henry") criminal proceedings, criminal charges and/or criminal convictions as they are not material and necessary in this action. The parties oppose one another's motions.
Motion Sequence 2:
Order to Show Cause - Affirmation in Support - Exhibits A-I
Affirmation in Opposition
Motion Sequence 3:
Order to Show Cause - Affirmation in Support
Affirmation in Opposition - Exhibits A-E
Upon the foregoing papers and the proceedings held on December 19, 2017, these motions are determined as follows:
Factual and Relevant Procedural Background
Plaintiffs commenced this action by filing a summons and verified complaint on July 6, 2016. Plaintiffs allege that defendant Henry, as a former employee, has inter alia, violated fiduciary obligations, misappropriated trade secrets, committed unfair competition and business practices, conversion and has tortiously interfered with plaintiffs' business relationships. Plaintiffs seek compensatory and punitive damages and equitable remedies. Defendant Paleen Construction Corp. was let out of this case by the filing of a partial stipulation of discontinuance on February 10, 2017. Defendants Henry and Imperial Asphalt and Aggregate Distributor Inc. filed their Answer on September 22, 2016.
See Partial Stipulation of Discontinuance filed on NYSCEF as doc. no. 52.
This action is related to an action entitled Henry G. Oneil, et al v Asphalt Maintenance et al, pending in Supreme Court, Westchester County under Index No. 69079/2015. The parties have not moved to consolidate the two actions. However, the two cases have been scheduled for simultaneous compliance conferences and have been proceeding on a similar discovery track.
Contentions of the Parties
In support of motion sequence number 2, plaintiffs argue they are entitled to further responses to demands numbered 1, 3, 4, 5, 7, 8, 9, 10, 14, 15, and 16 which were set forth in their Third Combined Demands dated October 10, 2017. These demands pertain to the following items: copies of minority certifications; copies of documents relating to child support information; the last known name and address of "Stephanie"; copies of texts, emails and electronic communications between defendant Henry and Stephanie; copies of invoices and payment records from plaintiffs' customers; a copy of defendant Henry's criminal conviction records; a copy of the dump truck lease and contract; a copy of the truck parking lease or agreement; and copies of emails or texts between defendant Henry and plaintiffs' customers. Plaintiffs also make a general demand for any other documents defendants intend to use at trial.
Plaintiffs also seek a further deposition regarding a text that was marked as defendants' Exhibit BB and conversations allegedly had with defendant Henry's ex-wife and the truth of the child support discussions. Plaintiffs state they do not seek judicial relief with respect to any other demands set forth in their Third Combined Demands.
See plaintiffs' Exhibit I filed to NYSCEF as doc. no. 75.
In support of motion sequence number 3, defendants seek to compel plaintiffs to produce the retainer and/or engagement agreement between plaintiffs and their counsel for this action; to preclude plaintiffs from introducing into evidence anything not produced during discovery; and for a protective order prohibiting plaintiffs from discovering documents or information related to defendant Henry's prior criminal proceedings. The court notes that the parties did not proffer any legal authority in support of their respective motions.
Analysis
CPLR 3101(a) broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. This provision is to be liberally interpreted in favor of disclosure (Zheng v Bermeo, 114 AD3d 743 [2d Dept 2014]). The phrase "material and necessary" is "to be interpreted liberally 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 and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 [1968]; Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]). The court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (Mironer v City of New York, 79 AD3d 1106, 1108 [2d Dept 2010]; Auerbach v Klein, 30 AD3d 451, 452 [2d Dept 2006]). Furthermore, for a protective order to be issued, the party seeking it must make a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice (CPLR 3103[a]). The court here, too, is vested with broad discretion to issue appropriate protective orders to limit discovery which discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind (Cascardo v Cascardo, 136 AD3d 729 [2d Dept 2016]). With these principles in mind we now turn to the specific issues raised by the parties herein.
With respect to motion sequence number 3, the court finds that plaintiffs have made a showing that they are entitled to further responses to their demands numbered 1, 3, 4, 5, 7, 8, 9, 10, 14, 15, and 16 as set forth in their Third Combined Demands dated October 10, 2017. Defendants are to provide further responses relating to copies of minority certifications; copies of documents relating to child support information; the last known name and address of "Stephanie"; copies of texts, emails and electronic communications between defendant Henry and Stephanie; copies of invoices and payment records from plaintiffs' customers; a copy of defendant Henry's criminal conviction records; a copy of the dump truck lease and contract; a copy of the truck parking lease or agreement; and copies of emails or texts between defendant Henry and plaintiffs' customers.
The court also finds that plaintiffs are entitled to a further limited deposition of defendant Henry regarding the text marked as defendants' Exhibit BBand conversations allegedly had with Henry's ex-wife and child support discussions.
See plaintiff's Exhibit I filed to NYSCEF as doc. no. 75.
The Court finds that the further discovery responses sought by plaintiffs and the further deposition testimony they seek of defendant Henry are material and relevant to this action and are inextricably intertwined with the issues, claims and/or defenses in the related action.
With respect to motion sequence number 3, which seeks to compel a copy of the retainer agreement between plaintiffs and their counsel, 22 NYCRR 691.20(c)(1) reads: "Confidential nature of statements. All statements of retainer or closing filed shall be deemed to be confidential and the information therein contained shall not be divulged or made available for inspection or examination except upon written order of the presiding justice of the Appellate Division." Accordingly, while a retainer agreement may arguably be material and necessary to this action, the information cannot be directed herein.
Now the Court turns to that aspect of defendants' motion which seeks a protective order related to defendant Henry's prior criminal history. For a protective order to be issued, the party seeking it must make a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice (CPLR 3103[a]). The court here, too, is vested with broad discretion to issue appropriate protective orders to limit discovery which discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind (Cascardo v Cascardo, 136 AD3d 729 [2d Dept 2016]).
CPLR 4513 states that the prior convictions of a witness can be used to affect the weight given to his testimony. It is up to the trial court in a civil action to exercise its discretion to determine whether to allow impeachment with a witness' prior convictions. See Sotto v Daddario, 235 AD2d 470 [2d Dept 1997]; See also Cruz v Long Island Railroad Co, 22 AD3d 451 [2d Dept. 2005] and Able Cycle Engines, Inc. v Allstate Insurance Co, 84 AD2d 140 [2d Dept 1981], appeal denied, 57 NY2d 607 [1982].
At the proceedings held herein on December 19, 2017, counsel for Henry stated it did not object to providing a written statement setting forth his prior criminal history. Accordingly, this portion of defendants' motion which seeks a protective order is denied as moot.
As to those portions of both motion sequence 2 and motion sequence 3 wherein the parties seek to preclude each other from producing at trial any document not produced during discovery, it would be unfair to allow the parties to later serve and rely on any documents not previously produced during discovery. Accordingly, the parties shall be precluded from offering any documents or trial testimony related to any documents which have been previously demanded and are not produced by a deadline date.
In light of the foregoing it is
ORDERED that motion sequence 2 is granted to the extent that on or before January 29, 2018 defendants shall serve further and detailed responses to plaintiffs' demands numbered 1, 3, 4, 5, 7, 8, 9, 10, 14, 15, and 16 as set forth in their Third Combined Demands dated October 10, 2017; and it is further
ORDERED that motion sequence number 2 is granted to the extent that on or before February 13, 2018, a further limited deposition of defendant Henry regarding the text marked as defendants' Exhibit BB and conversations allegedly had with Henry's ex-wife and child support discussions shall be conducted and completed; and it is further
See plaintiff's Exhibit I filed to NYSCEF as doc. no. 75.
ORDERED that motion sequence number 3 is denied with respect to that portion which seeks to compel copies of the retainer agreement between plaintiffs and their counsel; and it is further
ORDERED that motion sequence number 3 which seeks a protective order as to any prior criminal history of defendant Henry is denied as moot; and it is further
ORDERED that as to those portions of both motion sequence 2 and motion sequence 3 which seek to preclude the parties from producing at trial any document not produced during discovery, the parties shall be precluded from offering any documents or trial testimony related to any documents which have been previously demanded and are not produced on or before February 2, 2018; and it is further
ORDERED that counsel for the parties are directed to appear for a conference in the Compliance Part, courtroom 800 at 9:30 a.m. on February 14, 2018; and it is further
ORDERED that plaintiffs shall serve a copy of this Order with notice of entry upon counsel for all parties within 10 days of entry and shall file proof of service on NYSCEF within 5 days of service.
The foregoing constitutes the decision and order of this court. Dated: White Plains, New York
January 10, 2018
/s/_________
HON. JOAN B. LEFKOWITZ, J.S.C.