### 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 governmentsources, 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 NEWYORK NEWYORK COUNTY PRESENT: HON. NANCY M. BANNON Justice

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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

Thefollowing 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, interalia, $1,250,000 in damages for breach of an agreementto purchase commercial real estate, the plaintiff purchasers contend thatthe defendantsellers schemed to defraud them by making misrepresentations in the agreement concerning the status of leases and arrears of currenttenants ofthe building. The complaint alleges two causes of action - "breach of contract/warranty" as against defendant829 Mad. Ave. LLC, and "fraud/fraudulent inducement" as againstthe LLC and a memberofthat 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 setof interrogatories and second noticefor discovery and inspection, served on orabout October26, 2023, by March 29, 2024 (MOT SEQ 009). The defendants had responded mostlywith objections arguing thatthe demand was either overly broad and burdensome or not material and necessary as it pertained onlyto the issue ofenforcing a possiblejudgment. By an order dated April 1, 2024, the court denied a motion bythe 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 pursuantto the Rules of

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### [* 1]NYSCEF DOC. NO. 216 INDEX NO. 653842/2022 RECEIVED NYSCEF: 06/03/2024

Part 61 and to raise the issue atthe next scheduled conference, scheduled for laterthatweek on April 4, 2024. In the status conference order dated April 4, 2024, the court, interalia, directed the defendantto 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 butfiled the instant motion on April 30, 2024 (MOT SEQ 012). By an order dated May 6, 2024, the court denied another motion bythe 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 thatthe motion was moot in light of its prior order dated March 1, 2024 (MOT SEQ 009), and the status conference order ofApril 4, 2024. In the meantime, April 30, 2024, the defendants had filed this motion pursuantto CPLR 2221 to reargue MOT SEQ 011, and pursuantto 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 extentthe defendants seek re-argument of MOT SEQ 011, the motion is denied as the defendant has not demonstrated that the court overlooked or misapprehended anyfacts or relevant lawthatwere 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 extentthe defendants seek a protective order pursuantto 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 appropriatelysought in an information subpoena following entry of ajudgment againstthe defendants (see CPLR 5223) is improperatthisjuncture. The courtfurther notes thatthe plaintiffs may not, atthisjuncture, 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 ofthe email addresses, cell phone numbers and carrier account numbers used by defendant Myerfrom 2015 to the present. As noted, as pleaded in the complaint, the issues in this case are narrow in scope. Thus, the defendants need notfurther respond unless directed by the court atorafterthe nextstatus conference.

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### [* 2]NYSCEF DOC. NO. 216 INDEX NO. 653842/2022 RECEIVED NYSCEF: 06/03/2024

The plaintiffs are directed to review and revise theirsecond set of interrogatories and document demands in light ofthis order and the Rules ofthe 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 presentthat at the next status conference. In addition to the above referenced Rules ofthe Commercial Division, the plaintiffs are referred to CPLR 3101 (a) which explains the purpose ofdiscovery as requiring disclosure only of"facts bearing on the controversywhich will assist preparation fortrial bysharpening 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 moneyjudgment entered afterthe 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 ajudgment creditor to seek information from non-parties that may have information aboutthe location ofthe 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 ofthe Commercial Division and the Rules of Part 61 going forward. Accordingly, it is ORDERED that the defendants' motion is granted to the extentthatthe defendants need notfurther respond to the plaintiffsecond setof interrogatories and documents demands unless directed bythe court at or afterthe nextstatus conference, and the motion is otherwise denied, and it is further ORDERED that the plaintiffs are directed to review and revise theirsecond set of interrogatories and document demands in lightthe Rules ofthe Commercial Division, including Rule 11-a regarding interrogatories and Rule 11-e regarding responses and objections to document requests, and the plaintiffs shall presentthe resulting document, if any, to the court at the nextstatus conference, and it is further

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### [* 3]NYSCEF DOC. NO. 216 INDEX NO. 653842/2022 RECEIVED NYSCEF: 06/03/2024

ORDERED thatthe parties shall appearfor a status conference on July 18, 2024, at 11 :30 a.m., as previously scheduled. This constitutes the Decision and Orderofthe court.

6/3/2024



### DATE CHECKONE:
APPLICATION: CHECKIF APPROPRIATE:

# ~ CASE DISPOSED

### ~ NON-FINAL DISPOSITION GRANTED**□** DENIED X GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARYAPPOINTMENT

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