Bissell St. I, LLC v. Westbrook Partners LLC

2024 NY Slip Op 30884(U)

• Court: New York Supreme Court, New York County
• Decided: March 18, 2024
• Status: Unpublished

Opinion

Bissell St. I, LLC v Westbrook Partners LLC 2024 NY Slip Op 30884(U) March 18, 2024 Supreme Court, New York County Docket Number: Index No. 654223/2022 Judge: Joel M. Cohen 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. 654223/2022 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/18/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M

-------------------X BISSELL STREET I, LLC, BISSELL BELLEVUE INDEX NO. 654223/2022 MEMBER, LLC, 02/23/2024, Plaintiffs, 02/23/2024, 02/23/2024, - V - MOTION DATE 02/23/2024 WESTBROOK PARTNERS LLC, EGBW38R OWNER, 006 007 008 LLC, EGBW38R HOLDINGS, LLC, EGBW38R REIT, LLC MOTION SEQ. NO. 009 Defendants. DECISION+ ORDER ON MOTION -------------------X HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 006) 76, 77, 78, 79, 92, 93,94 were read on this motion for SUBPOENADUCESTECUM

The following e-filed documents, listed by NYSCEF document number (Motion 007) 80, 81, 82, 83, 95, 96, 97 were read on this motion for SUBPOENADUCESTECUM

The following e-filed documents, listed by NYSCEF document number (Motion 008) 84, 85, 86, 87, 98, 99,100 were read on this motion for SUBPOENA DUCES TECUM

The following e-filed documents, listed by NYSCEF document number (Motion 009) 88, 89, 90, 91, 101, 102,103 were read on this motion for SUBPOENA DUCES TECUM

Plaintiffs Bissell Street I, LLC and Bissell Bellevue Member, LLC (together "Plaintiffs"

or "Bissell") move for an order issuing subpoenas duces tecum (NYSCEF 76, 80, 84, 88 [the

"Subpoenas"]) directed to four non-party entities (the "Non-Parties") pursuant to CPLR 2307:

Teachers' Retirement System of the City ofNew York (Mot. Seq. 006), New York City Fire

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Pension Fund (Mot. Seq. 007), New York City Police Pension Fund (Mot. Seq. 008), and New

York State Common Retirement Fund (Mot. Seq. 009).

The Subpoenas seek all communications and financial records between the Non-Parties

and Westbrook Partners Real Estate Fund XI, and/or any Defendant, "referring to, referencing,

or related to the Boeing campus." The Subpoenas further provide that "[r]esponsive documents

shall include, but not be limited to, communications, reports, prospectus materials, acquisition

analyses, financial projections, quarterly reports, annual reports, distribution statements, capital

call and distribution notices and co-investment materials exchanged between or among

Westbrook Partners Real Estate Fund XI or any Westbrook Defendant, on the one hand," and the

Non-parties, on the other. Defendants oppose these motions. For the following reasons,

Plaintiffs' motion is denied.

CPLR 2307 governs a subpoena seeking "books, papers and other things" from a

"library, or a department or bureau of a municipal corporation or of the state, or an officer

thereof." CPLR 2307 provides that "[u]nless the court orders otherwise, a motion for such

subpoena shall be made on at least one day's notice to the library, department, bureau or officer

having custody of the book, document or other thing and the adverse party ... " (CPLR 2307[a];

Sanderson v NY City Tr. Auth., 2001 NY Slip Op 5 l 382[U], *2 [Sup Ct, Kings County 2007]).

The statute is reinforced by CPLR 3120(4), which notes that the motion requirements in CPLR

2307 are applicable when a subpoena duces tecum is sought to be served on a library or certain

governmental departments in pretrial disclosure (CPLR 3120(4); 63rd & 3rd NYC LLC v Starr

Indem. & Liab. Co., 76 Misc 3d 1208[A], [Sup Ct, NY County 2022])).

Here, nothing in the record indicates that Plaintiffs provided the notice required by CPLR

2307 to the Non-Parties. Thus, Plaintiffs have not given the Non-Parties an opportunity to

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oppose these motions. Accordingly, the motions must be denied (People v Simone, 92 Misc 2d

306,310 [Sup Ct, Bronx County 1977] [noting that the notice requirement serves the interest of

allowing the government to "object to the issuance of a subpoena on legitimate grounds before it

is signed"], aff71 AD2d 554 [1st Dept 1979]; 63rd & 3rd NYC LLC, 76 Misc 3d 1208[A]

[denying motion pursuant to CPLR 2307 because defendant "failed to attach an affidavit or

document evidencing that the within application was made on notice to the City of New York"];

Townsend v B-U Realty Corp., 67 Misc 3d 1228[A] [Sup Ct, NY County 2020] [denying motion

pursuant to CPLR 2307 as ''the court has not dispensed with the procedural requirement that

plaintiff give at least one day's notice to DHCR of its application for a subpoena"]).

Moreover, ifthere are documents exchanged among Defendants and Westbrook Partners

Real Estate Fund XI and the Non-Parties, those documents would be in Defendants' and/or and

Westbrook Partners Real Estate Fund XI's possession. 1 Plaintiffs should first request those

documents from Defendants. If there is reason thereafter to request such documents from the

Non-Parties, Plaintiffs may do so, provided they comply with the requirements of CPLR 2307.

Accordingly, it is

ORDERED that Plaintiffs' Motions are DENIED without prejudice.

1 Indeed, during a January 23, 2024 conference with the Court's law clerk, Plaintiffs were advised to refine and narrow their earlier document requests to Defendants which seek to capture the same documents Plaintiffs seek from the Non-Parties through the Subpoenas.

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This constitutes the Decision and Order of the Court.

3/18/2024 DATE JOEL M. COHEN, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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