### 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 NEWYORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M 

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BISSELL STREET I, LLC, BISSELL BELLEVUE MEMBER, LLC, Plaintiffs,

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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") pursuantto CPLR2307: Teachers' Retirement System ofthe City ofNewYork (Mot. Seq. 006), NewYork City Fire

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### [* 1]INDEX NO. 654223/2022 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/18/2024

2 of 4 Pension Fund (Mot. Seq. 007), NewYork City Police Pension Fund (Mot. Seq. 008), andNew 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,
orrelated to the Boeing campus." The Subpoenas further provide that "[r]esponsive documents shall include, butnotbe limited to, communications, reports, prospectus materials, acquisition analyses, financial projections, quarterly reports, annual reports, distribution statements, capital call and distribution notices and co-investmentmaterials exchanged between or among Westbrook Partners Real Estate Fund XI orany Westbrook Defendant, onthe one hand," and the Non-parties, onthe other. Defendants oppose these motions. Forthe following reasons, Plaintiffs' motion is denied. CPLR 2307 governs a subpoena seeking "books, papers and otherthings" from a "library, or a department orbureau ofa municipal corporation orofthe 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 ofthe book, document or otherthing and the adverse party ..." (CPLR 2307[a]; Sanderson v NYCity Tr. Auth., 2001 NY Slip Op 5 l382[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 soughtto be served on a library or certain governmental departments inpretrial disclosure (CPLR 3120( 4); 63rd & 3rdNYCLLC vStarr Indem. 

### & Liab. Co., 76 Misc 3d 1208[A], [Sup Ct, NY County 2022])). Here, nothing inthe record indicates that Plaintiffs providedthe notice required by CPLR 2307 to the Non-Parties. Thus, Plaintiffs have not giventhe Non-Parties an opportunity to

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### [* 2]INDEX NO. 654223/2022 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/18/2024

3 of 4 opposethese motions. Accordingly, the motions mustbedenied (People v Simone, 92 Misc 2d 306,310 [Sup Ct, Bronx County 1977] [noting thatthe notice requirement servesthe interest of allowing the government to "objecttothe issuance ofa subpoena onlegitimate grounds before it is signed"], aff71 AD2d 554 [1st Dept 1979]; 63rd & 3rdNYC LLC, 76 Misc 3d 1208[A] [denying motionpursuant to CPLR2307 because defendant "failedto attach anaffidavit or document evidencingthatthe within applicationwas made on notice to the City ofNewYork"]; Townsendv B-URealty Corp., 67 Misc 3d 1228[A] [Sup Ct, NYCounty 2020] [denying motion pursuant to CPLR 2307 as ''the court has not dispensed withthe procedural requirement that plaintiffgive at least one day's notice to DHCRofits 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'spossession. 1 Plaintiffs should first request those documents from Defendants. Ifthere is reasonthereafter to request such documents from the Non-Parties, Plaintiffs may do so, provided they comply withthe requirements ofCPLR 2307. Accordingly, it is ORDERED thatPlaintiffs' Motions are DENIED without prejudice.

1Indeed, during a January 23, 2024 conference withthe Court's law clerk, Plaintiffs were advised to refine and narrowtheir earlierdocumentrequests to Defendants which seekto capture the same documents Plaintiffs seek from the Non-Parties through the Subpoenas.

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4 of 4 This constitutes the Decision and Order ofthe 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

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