470 4th Ave. Fee Owner, LLC v. Wesco Ins. Co.

2025 NY Slip Op 30136(U)

• Court: New York Supreme Court, New York County
• Decided: January 8, 2025
• Docket: Index No. 651184/2020
• Status: Unpublished

Opinion

470 4th Ave. Fee Owner, LLC v Wesco Ins. Co. 2025 NY Slip Op 30136(U) January 8, 2025 Supreme Court, New York County Docket Number: Index No. 651184/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 651184/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/08/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 651184/2020 470 4TH AVENUE FEE OWNER, LLC, TPH 470 4TH AVENUE INVESTORS LLC, and TRINITY PLACE MOTION DATE 01/08/2025 HOLDINGS INC., MOTION SEQ. NO. 003 Plaintiffs,

-v- DECISION + ORDER ON WESCO INSURANCE COMPANY and AMTRUST NORTH AMERICA INC., MOTION

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 105, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS .

ORDER

Upon the foregoing documents, it is

ORDERED that the motion of non-party Danya Cebus

Construction, LLC, to quash or modify a subpoena duces tecum and

ad testificandum returnable in this court, served upon it on

October 4, 2024, is granted to the extent that the movant need

not, and shall not, produce its “entire file related to the

premises located at 470 4th Avenue, Brooklyn, New York that is the

subject of this litigation” in its possession identified in the

affirmation of Ethan W. Middlebrooks, Esq., dated October 30,

2024, submitted in support of the motion; and it is further

ORDERED that the herein order is without prejudice to

defendant Wesco Insurance Company propounding a Sub Duces Tecum to 651184/2020 470 4TH AVENUE FEE OWNER, LLC vs. WESCO INSURANCE COMPANY Page 1 of 4 Motion No. 003

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non-party Danya Cebus Construction, LLC, that specifies the

category of records, such as daily activity reports/logs;

subcontracts; electronic or physical letters or correspondence,

etc., related to construction work, including repairs, which such

non-party prosecuted, monitored, and/or inspected in connection

with the installation of Packaged Terminal Air Conditioning units,

including louvers, thereof; façade; roof system; exterior wall

cladding; foundation; elevators; wood flooring; mechanical,

plumbing, electrical and fire protection systems of 470 4th Avenue,

Brooklyn, New York, from July 2014 through and including May 24,

2019; and it is further

ORDERED that defendant Wesco Insurance Company shall bear the

reasonable costs1 incurred by non-party Danya Cebus Construction,

LLL, of photocopying and delivering copies of such records to all

counsel herein, upon receipt of an estimate of such costs at least

fifteen days before production, and shall reimburse such costs,

within 30 days of receipt of such records and invoice therefor;

and it is further

ORDERED that there shall be no further extension of the

deadlines for discovery and filing of the note of issue, which are

set forth in the Status Conference Order dated November 1, 2024.

1 Defendant and Wesco shall bear their own attorneys’ or related legal services fees. 651184/2020 470 4TH AVENUE FEE OWNER, LLC vs. WESCO INSURANCE COMPANY Page 2 of 4 Motion No. 003

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DECISION

By Subpoena Duces Tecum and Ad Testificandum dated October

4, 2024, defendant Wesco Insurance Company seeks from non-party

Danya Cebus Construction, LLC, “your entire file related to the

premises located at 470 4th Avenue, Brooklyn, New York that is

the subject of this litigation.” Such general, unspecified

subpoena, which seeks records that are not material to this

lawsuit, is overbroad. See In re New York City Asbestos

Litigation, 133 AD3d 463, 463-464 (1st Dept 2015)(“all other

relevant documents and records, including but not limited to

commercial records. . . is overbroad.”) There is no way this

court can “cull good from the bad”, given such generic

description (see Soho Generation of New York, Inc v Tri-City Ins

Brokers, Inc, 236 AD2d 276, 277 [1st Dept 1997]), so an order

directing modification is not available. However, defendant

Wesco Insurance Co has leave to serve a new subpoena that

delineates the specific categories of records sought.

This court disagrees with non-party Danya Cebus Construction,

LLC, to the extent that it argues that defendant Wesco Insurance

Company must first secure from plaintiffs copies of records of

Danya Cebus Construction, LLC, which plaintiffs may have in their

possession. See Kapon v Koch, 23 NY3d 32, 38 (2014).

Finally, defendant Wesco Insurance Company, which seeks

discovery from non-party Danya Cebus Construction, LLC, shall bear

651184/2020 470 4TH AVENUE FEE OWNER, LLC vs. WESCO INSURANCE COMPANY Page 3 of 4 Motion No. 003

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the reasonable non-legal costs incurred by such non-party in

complying with any newly issued that properly delineates the

records and any testimony sought. See Waltzer v Tradescape & Co,

LLC, 31 AD3d 302 (1st Dept 2006). J)-~ .A - } ~ 20250 l 08 l 75330DJAMESC934851E0AC64FC88006C6D4A9E l 08E7

1/8/2025 DATE DEBRA A. JAMES, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

651184/2020 470 4TH AVENUE FEE OWNER, LLC vs. WESCO INSURANCE COMPANY Page 4 of 4 Motion No. 003

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