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

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SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M 

-------------------X 

BISSELL STREET I, LLC, BISSELL BELLEVUE 

MEMBER, LLC, 

Plaintiffs, 

- V -

INDEX NO. 

MOTION DATE 

654223/2022 

02/23/2024, 

02/23/2024, 

02/23/2024, 

02/23/2024 

006 007 008 WESTBROOK PARTNERS LLC, EGBW38R OWNER, 

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 

654223/2022 BISSELL STREET I, LLC ET AL vs. WESTBROOK PARTNERS LLC ET AL 

Motion No. 006 007 008 009 

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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 

654223/2022 BISSELL STREET I, LLC ET AL vs. WESTBROOK PARTNERS LLC ET AL 

Motion No. 006 007 008 009 Page 2of4 

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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. 

654223/2022 BISSELL STREET I, LLC ET AL vs. WESTBROOK PARTNERS LLC ET AL 

Motion No. 006 007 008 009 Page 3of4 

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This constitutes the Decision and Order of the Court. 

3/18/2024 

DATE 

CHECK ONE: 

~ CASE DISPOSED 

JOEL M. COHEN, J.S.C. 

NON-FINAL DISPOSITION 

APPLICATION: 

CHECK IF APPROPRIATE: 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

654223/2022 BISSELL STREET I, LLC ET AL vs. WESTBROOK PARTNERS LLC ET AL 

Motion No. 006 007 008 009 

□ OTHER 

□ REFERENCE 

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