Arlus Owner LLC v 829 Mad. Ave. LLC

2024 NY Slip Op 31914(U)

June 3, 2024

Supreme Court, New York County

Docket Number: Index No. 653842/2022

Judge: Nancy M. Bannon

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.
NYSCEF DOC. NO. 216 

INDEX NO. 653842/2022 

RECEIVED NYSCEF: 06/03/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. NANCY M. BANNON 

Justice 

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

ARLUS OWNER LLC, FALU, LLC, FJLU, LLC, 829 

MADISON WE TIC OWNER LLC, 

Plaintiff, 

- V -

829 MAD. AVE. LLC and STANLEY MYER, 

Defendant. 

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

PART 61M 

INDEX NO. 653842/2022 

MOTION DATE 5-17-24 

MOTION SEQ. NO. 012 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 012) 177, 178, 179, 180, 

181,182,183,184,185,186,187,188,191,192,193,194 

were read on this motion to/for REARGUMENT/RECONSIDERATION 

In this action seeking, inter alia, $1,250,000 in damages for breach of an agreement to 

purchase commercial real estate, the plaintiff purchasers contend that the defendant sellers 

schemed to defraud them by making misrepresentations in the agreement concerning the status 

of leases and arrears of current tenants of the building. The complaint alleges two causes of 

action - "breach of contract/warranty" as against defendant 829 Mad. Ave. LLC, and 

"fraud/fraudulent inducement" as against the LLC and a member of that LLC, Stanley Myer. 

By an order dated March 1, 2024, the court granted a motion by the plaintiffs to compel 

discovery and ordered the defendants to provide full responses to the plaintiffs' second set of 

interrogatories and second notice for discovery and inspection, served on or about October 26, 

2023, by March 29, 2024 (MOT SEQ 009). The defendants had responded mostly with 

objections arguing that the demand was either overly broad and burdensome or not material 

and necessary as it pertained only to the issue of enforcing a possible judgment. 

By an order dated April 1, 2024, the court denied a motion by the plaintiffs to compel 

compliance with a subpoena served on the defendants' prior counsel on or about September 

19, 2023, seeking information in regard to a "crime-fraud" exception to the attorney-client 

privilege (MOT SEQ 011). The denial was without prejudice to proceed pursuant to the Rules of 

653842/2022 ARLUS OWNER LLC ET AL vs. 829 MAD. AVE. LLC ET AL 

Motion No. 012 

1 of 4 

Page 1 of4 

[* 1]
NYSCEF DOC. NO. 216 

INDEX NO. 653842/2022 

RECEIVED NYSCEF: 06/03/2024 

Part 61 and to raise the issue at the next scheduled conference, scheduled for later that week 

on April 4, 2024. 

In the status conference order dated April 4, 2024, the court, inter alia, directed the 

defendant to provide ill! outstanding discovery ordered in the preliminary conference order of 

May 19, 2023, and the order dated March 1, 2024. The defendant did not do that but filed the 

instant motion on April 30, 2024 (MOT SEQ 012). 

By an order dated May 6, 2024, the court denied another motion by the plaintiff pursuant 

to CPLR 3124 seeking to compel the defendants to respond in full to demands served on 

September 8, 2023 (MOT SEQ 008). The court held that the motion was moot in light of its prior 

order dated March 1, 2024 (MOT SEQ 009), and the status conference order of April 4, 2024. 

In the meantime, April 30, 2024, the defendants had filed this motion pursuant to CPLR 

2221 to reargue MOT SEQ 011, and pursuant to CPLR 3103 for a protective order in regard to 

the discovery directed in order dated March 1, 2024. The plaintiff opposes the motion. 

To the extent the defendants seek re-argument of MOT SEQ 011, the motion is denied 

as the defendant has not demonstrated that the court overlooked or misapprehended any facts 

or relevant law that were presented to it in connection with the plaintiffs' prior motion to compel. 

See CPLR 2221 (d)(2); William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 (1 st Dept 1992). 

However, to the extent the defendants seek a protective order pursuant to CPLR 3103 

as to the discovery directed in the order on MOT SEQ 011, the motion is granted in part. Any 

interrogatory or document request that seeks information that is more appropriately sought in an 

information subpoena following entry of a judgment against the defendants (see CPLR 5223) is 

improper at this juncture. The court further notes that the plaintiffs may not, at this juncture, seek 

information from the defendants regarding non-parties. Nor do the plaintiffs explain the 

relevancy or propriety of demanding "the date on which [defendant] Stanley Myer became a 

Florida domiciliary" or all of the email addresses, cell phone numbers and carrier account 

numbers used by defendant Myer from 2015 to the present. As noted, as pleaded in the 

complaint, the issues in this case are narrow in scope. Thus, the defendants need not further 

respond unless directed by the court at or after the next status conference. 

653842/2022 ARLUS OWNER LLC ET AL vs. 829 MAD. AVE. LLC ET AL 

Motion No. 012 

2 of 4 

Page 2 of 4 

[* 2]
NYSCEF DOC. NO. 216 

INDEX NO. 653842/2022 

RECEIVED NYSCEF: 06/03/2024 

The plaintiffs are directed to review and revise their second set of interrogatories and 

document demands in light of this order and the Rules of the Commercial Division, including 

Rule 11-a regarding interrogatories and Rule 11-e regarding responses and objections to 

document requests, and, if any document results, the plaintiffs shall present that at the next 

status conference. 

In addition to the above referenced Rules of the Commercial Division, the plaintiffs are 

referred to CPLR 3101 (a) which explains the purpose of discovery as requiring disclosure only 

of "facts bearing on the controversy which will assist preparation for trial by sharpening the 

issues and reducing delay and prolixity." Osowski v AMEC Constr. Mgt., Inc., 69 AD3d 99, 106 

(1 st Dept. 2009) quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 (1968). 

Notably, it does not include facts which bear only on the identity and location of assets that may 

serve to satisfy a money judgment entered after the trial, i.e post-judgment discovery governed 

by CPLR article 52. CPLR 5223, which authorizes information subpoenas, and CPLR 5224, 

which establishes the procedure to be used, are broad statutes which allow a judgment creditor 

to seek information from non-parties that may have information about the location of the 

judgment debtor's assets. See e.g. ICD Grp. v Israel Foreign Trade Co. [USA], 224 AD2d 293 

(1st Dept. 1996). 

Finally, all parties are cautioned to adhere to the Rules of the Commercial Division and 

the Rules of Part 61 going forward. 

Accordingly, it is 

ORDERED that the defendants' motion is granted to the extent that the defendants need 

not further respond to the plaintiff second set of interrogatories and documents demands unless 

directed by the court at or after the next status conference, and the motion is otherwise denied, 

and it is further 

ORDERED that the plaintiffs are directed to review and revise their second set of 

interrogatories and document demands in light the Rules of the Commercial Division, including 

Rule 11-a regarding interrogatories and Rule 11-e regarding responses and objections to 

document requests, and the plaintiffs shall present the resulting document, if any, to the court at 

the next status conference, and it is further 

653842/2022 ARLUS OWNER LLC ET AL vs. 829 MAD. AVE. LLC ET AL 

Motion No. 012 

3 of 4 

Page 3 of 4 

[* 3]
NYSCEF DOC. NO. 216 

INDEX NO. 653842/2022 

RECEIVED NYSCEF: 06/03/2024 

ORDERED that the parties shall appear for a status conference on July 18, 2024, at 

11 :30 a.m., as previously scheduled. 

This constitutes the Decision and Order of the court. 

6/3/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED ~ NON-FINAL DISPOSITION 

GRANTED □ DENIED X GRANTED IN PART 

SETTLE ORDER SUBMIT ORDER 

INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 

653842/2022 ARLUS OWNER LLC ET AL vs. 829 MAD. AVE. LLC ET AL 

Motion No. 012 

4 of 4 

□ OTHER 

□ REFERENCE 

Page4 of 4 

[* 4]