Opinion
2014-11574, Index No. 31113/07.
03-29-2017
Chioma GEORGE, et al., appellants, v. VICTORIA ALBI, INC., et al., defendants, Makari Ventures, LLC, nonparty-respondent.
Andrew Molbert, New York, NY, for appellants. Charles Aini, New York, NY, for nonparty-respondent.
Andrew Molbert, New York, NY, for appellants.
Charles Aini, New York, NY, for nonparty-respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 18, 2014, which granted the motion of nonparty Makari Ventures, LLC, to quash a subpoena duces tecum and notice to take a deposition served upon it and for a protective order, and denied their cross motion to compel compliance with the subpoena and notice.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion of nonparty Makari Ventures, LLC, to quash a subpoena duces tecum and notice to take a deposition served upon it and for a protective order is denied, and the plaintiffs' cross motion to compel compliance with the subpoena and notice to take a deposition is granted.
The Supreme Court improvidently exercised its discretion in granting the motion of the nonparty, Makari Ventures, LLC (hereinafter Makari Ventures), inter alia, to quash a subpoena duces tecum and notice to take a deposition served upon it by the plaintiffs in the course of seeking to enforce a judgment against the defaulting defendant, Makari Group, Inc. (hereinafter Makari Group), and in denying the plaintiffs' cross motion to compel compliance with the subpoena and notice. CPLR 5223 compels disclosure of "all matter relevant to the satisfaction of the judgment." "A judgment creditor is entitled to discovery from either the judgment debtor or a third party in order ‘to determine whether the judgment debtor[ ] concealed any assets or transferred any assets so as to defraud the judgment creditor or improperly prevented the collection of the underlying judgment’ " (Technology Multi Sources, S.A. v. Stack Global Holdings, Inc., 44 A.D.3d 931, 932, 845 N.Y.S.2d 357, quoting Young v. Torelli, 135 A.D.2d 813, 815, 522 N.Y.S.2d 918 ).
CPLR 5240 provides the court with broad discretionary power to control and regulate the enforcement of a money judgment under CPLR article 52 to prevent "unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice" (Paz v. Long Is. R.R., 241 A.D.2d 486, 487, 661 N.Y.S.2d 20 ). Nonetheless, an application to quash a subpoena should be granted only where "the futility of the process to uncover anything legitimate is inevitable or obvious" (Matter of Edge Ho Holding Corp., 256 N.Y. 374, 382, 176 N.E. 537 ), or where the information sought is "utterly irrelevant to any proper inquiry" (Matter of Dairymen's League Coop. Assn. v. Murtagh, 274 App.Div. 591, 595, 84 N.Y.S.2d 749, affd. 299 N.Y. 634, 86 N.E.2d 509 : see Anheuser–Busch, Inc. v. Abrams, 71 N.Y.2d 327, 331–332, 525 N.Y.S.2d 816, 520 N.E.2d 535 ; Myrie v. Shelley, 237 A.D.2d 337, 338, 655 N.Y.S.2d 66 ; cf. Ayubo v. Eastman Kodak Co., 158 A.D.2d 641, 642, 551 N.Y.S.2d 944 ). It is the burden of the party seeking to quash a subpoena to conclusively establish that it lacks information to assist the judgment creditor in obtaining satisfaction of the judgment (see Gryphon Dom. VI, LLC v. GBR Info. Servs., Inc., 29 A.D.3d 392, 393, 815 N.Y.S.2d 65, citing Liberty Co. v. Rogene Indus., 272 A.D.2d 382, 707 N.Y.S.2d 911 ).
Here, Makari Ventures is affiliated with Makari Group and may share the same ownership. Moreover, Makari Group failed to satisfy the judgment and was dissolved shortly after the judgment was entered against it. Furthermore, the website from which the injured plaintiff purchased Makari Group's products now indicates that the business is operated under a new address, which is the same as Makari Ventures' address. Accordingly, the plaintiffs should have been permitted to inquire of Makari Ventures whether Makari Group concealed any assets or transferred any assets so as to defraud the plaintiffs or improperly prevented the collection of the underlying judgment (see CPLR 5223 ; Young v. Torelli, 135 A.D.2d at 815, 522 N.Y.S.2d 918 ). In addition, Makari Ventures failed to make any showing that it lacked information to assist the plaintiffs in obtaining satisfaction of the judgment (see Gryphon Dom. VI, LLC v. GBR Info. Servs., Inc., 29 A.D.3d at 393, 815 N.Y.S.2d 65 ).