Bryant v. Broadcast Music, Inc.

122 A.D.3d 564, 995 N.Y.S.2d 599

Opinion

In related actions, inter alia, to recover damages for breach of contract, the nonparty Patrick J. Monaghan, Jr., appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated June 5, 2012, as granted that branch of the motion of the defendant Sunbow Productions, Inc., which was for an award of costs pursuant to 22 NYCRR 130-1.1, and (2) so much of an order of the same court dated October 3, 2012, as directed him to pay costs to the defendant Sunbow Productions, Inc., in the sum of $3,500, and the nonparties Johnson & Johnson, LLP, Neville L. Johnson, and John D. Fowler separately appeal from (1) so much of the order dated June 5, 2012, as granted those branches of the motion of the defendant Sunbow Productions, Inc., which were to disqualify them as counsel for the plaintiff and for an award of costs pursuant to 22 NYCRR 130-1.1, and (2) so much of the order dated October 3, 2012, as directed them to pay costs to the defendant Sunbow Productions, Inc., in the sum of $1,500.

Ordered that the appeals from so much of the order dated June 5, 2012, as granted that branch of the motion of the defendant Sunbow Productions, Inc., which was for an award of costs pursuant to 22 NYCRR 130-1.1 are dismissed, as that portion of the order was superseded by the order dated October 3, 2012; and it is further,

Ordered that the order dated June 5, 2012, is reversed insofar as reviewed, on the facts and in the exercise of discretion, and that branch of the motion of the defendant Sunbow Produc tions, Inc., which was to disqualify Johnson & Johnson, LLP, Neville L. Johnson, and John D. Fowler as counsel for the plaintiff is denied; and it is further,

Ordered that the order dated October 3, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the motion of Sunbow Productions, Inc., which was for an award of costs pursuant to 22 NYCRR 130-1.1 is denied; and it is further,

Ordered that one bill of costs is awarded to the nonparty Patrick J. Monaghan, Jr., and the nonparties Johnson & Johnson, LLF Neville L. Johnson, and John D. Fowler, payable by the defendant Sunbow Productions, Inc.

The nonparty appellant Patrick J. Monaghan, Jr., the plaintiffs attorney, improperly sought to obtain certain documents by issuing two subpoenas to Broadcast Music, Inc. (also known as “BMI”), which is no longer a party to this action, without notice to the defendant Sunbow Productions, Inc. (hereinafter Sunbow) (see CPLR 3120 [3]). The nonparty appellants, Johnson & Johnson, LLP, Neville L. Johnson, and John D. Fowler, drafted a cover letter which accompanied the first subpoena. However, Sunbow did not demonstrate that the failure to notify it of the subpoenas was intentional, or that the documents requested were privileged. Moreover, Sunbow was not prejudiced thereby, as none of the documents sought was actually produced. Accordingly, under the circumstances of this case, neither the disqualification of Johnson & Johnson, LLP, nor the imposition of costs pursuant to 22 NYCRR 130-1.1 was warranted (see Levy v Grandone, 8 AD3d 630, 631 [2004]; Gutierrez v Dudock, 276 AD2d 746 [2000]; DiMarco v Sparks, 212 AD2d 965 [1995]).

In light of our determination, we need not reach the parties’ remaining contentions.

Rivera, J.P, Hall, Austin and Roman, JJ, concur.