### Hersko v Hersko 2024 NY Slip Op 30846(U) March 14, 2024 Supreme Court, Kings County Docket Number: Index No. 519449/2021 Judge: LeonRuchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourtsService. This opinion is uncorrected and not selected for official publication.

### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

1 of 6 SU,PREME 

### COURT 

### OF THE STATE OF 

### NEW YORK COUNTY 

### OF KINGS : CIVIL TERM: CCP

**~**

## -----

# -----------

# --- ----

# - - .-.

# -- ---~ BARRY HERSK.0,. 

### Plaintiffs, 

### Decision and order

- aga'i-n-st - 

### rndex No-. 519A149/2.U20i 

### MORRI-S HERS.KO & 

### SARA G. HERSKO,

### Defendants., 

### ··March_ .14, 2·0.2=4



### ------·------..---.- ---.--.---.- .--.-----------x 

### PRESENT: HON. LEON RUCHELSMAN 

### -Motion Seq. #} The 

### plaintiffha~ m_oved 

### pursuant to CPLR_:_§3124- seeking 

### to compel responses 

### to various di~covery requests. The. 

### defendants have -opposed

### the 

### motion.- Papers 

### Wf:::.:i:'e 

### submittedby 

### the parties 

### and arguments

### he_ld. ·

### Aft.er review:i..ng '3.11 :the 

### arguments t_his 

### cour_t 

### hbw makes 

### the

### following determination~ As 

### re-corded ina prior order, 

### th~ 

### plaintiff qileges 

### he loane.d the 

### defendant and his. wif·e signi_ficc1.nt sums of mon.ey. Specifically,. 

### according to the ve.:rffied- _second 

### amend.ed complairit, ·the def'endants 

### owned a .condominium 

### located at,. 20;3$} 57th 

### S:treet :i..n Kings Coμnty and in 20],.0 .syc:ur~d a $300,_000 mortgage from TD Bank. In "2"0ll the pla;intiff. alleges.he ioaned.·the 9-efencta:nts _$190,

# o·oo to help_them 

### purchase a 

### .!l_ouse located at 

### 1._9:63 63rd" Street 

### in Kin9s 

### County. The 

### loan was wired at plaintiff's direct.ion 

### from plaintiff;s 

### attorney'·s escr_ow.- 

### account in the arnqμ-pt o_f 

### -$19-.b·,000 

### and was 

### rec_~i-yed by the·

### defe:n,dants. Iridee.d; 

### the defendants purchased. the hotise in February 2012. _In 

### March 2012 th~ tilain•t'iff 

### alleges·he 

### lqaned the defendaJJ.ts

# an additional



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### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

2 of 6 $169,834.45. Those funds were paid directly to TD Bank by plaintiff's attorney from the same esc:::row account. The verified second amended complaint alleges these funds were used to pay off the m·ortgage related

## to the condominium which would then enable the defendants to sell the condominium and repay the plaintiff. The following week verified second amended complaint alleges the plaintiff loaned the defendants another $90,163.55 which was also intended to payoff the mortgage connected to the condominium. Thos·e funds were also paid directly to TD Bank by plaintiff's attorney from thesame escrow account. In March 2014 the verified second amended complaint alleges the plaintiff loaned the ctefendants another $250,000 which was also used to payoff the mortgage connected to the condominium. Again, those funds
were also paid directly to TD Bankby plaintiff's attorney from the same escrow account. The verified second amended complaint asserts the defendants promised to secure, the loan payments with the condominium but concede thci.t suchguaranty was never reduced

. . . to a writing. No funds were ever returned aridtitle to the condominium was never transferred to the plaintiff. This lawsuit
was commenced and alleges two causes of action, namelybreach of contract and·the imposition of 

### a: constructive trust. The plaintiff now seeks the defendant's bank records related to these four loans. The plaintiff argues that the money "loaned 2


### [* 2]

### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

3 of 6 to the Defendants were used to pay down the mortgage on the Condo and to facilitate the purchase of the House...These allegations

. . go directly to Plaintiff's claim that a loan agreement exists between the parties and that Plaintiff is entitled,to a constructive trust inthe condo. However, Defendants have refused, to produce documents reflecting the source of funds used to purchase the Properties" (Memorandum in Support, page 6 [NYSCEF Doc. No. 

### 122]). The defendants have riot produced the requested information arguing theyhave providedall relevant discovery and these requests are not relevant.
Conclusions Of La~ It is well settled that a pax:ty may berequired to produce documents held bya thirdparty where the party has a legal right to the documents or has control over the entity or individual who is in possession of the documents (New York ex rel. Boardman v: National Railroad Passenger Corporation, 233 F.R.D..2006]). This rule applies where documents of a party are in the possession.of tne agent of that party (American Rock Salt Company LLC v. Norfolk Southern Corg__.; 228 F.R.D. 426 [W.D,N.Y. 2004]). Thus, the plaintiff's attorney and escrow agent who actually wrote checks and wired funds on the plaintiff's behalf 

## is surely an

.. . agent of the plaintiff. The peculiar posture of this case where 

### 3


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### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

4 of 6 the plai)J.tiff seeks discovery of his own agent's records from the defendant does not change the analysis. The plaintiff has not presented any reason why he cannot obtain the information from his own agent. The failure to sect1rerelevant documents from the ,plaintiff's own agent militates against seeking them from the defendants. The plaintiff's inability to secure documents from his own agent, in essence; £romhimself, is not grounds to serve discovery requests for those same documents upon the defendants, Notwithstanding, the court must consider the question of relevancy. ''A party seeking discovery must satisfythe threshold requirement that the request is reasonably calculated to yield information that is "material and necessary"-L

### e., relevant-regardless of whether discovery is -sought from another party•..

### ora non party" (see, Forman

## v. Henkin:, 30 NY3d 656, 70 NYS3d 1:57 [2018], ~, also, Evans

### v. Roman, 172 AD3d 501, 100 NYS3d 

### 26 [1st Dept. , 2019l). Anydiscovery disputes must ultimately be brought pefore the trial court. Further, the trial court maintains "wide discretion tb decide whether information sought is 'material and necessary' to the prosecution or ciefense of an action" (Vargas v. Lee, 170 AD3d 1073, 

### 96 NYS3d 587 

### [2d Dept., 2019]). "Accordingly~ absent 

### an error of law or an improvident exercise of discretion" the Appellate Court "will not disturb a trial court's discretionary discovery determination" 4


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### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

5 of 6 (id)..

### In 

### th.is.cas_e the_plaintiff 

### a.11eges :he loaned 

### funds to th.e defendants. The defendants do no·t dispute theyreceived :the 

### funds·fromthe 

### esc-.row account:noted. Ratner, they simply 

### dispute the character arid nature of t}:le transfer _qf funds. Thus,. the 

### dispute in 

### this case is 

### narrow and discreet and concerns only one

. question, whether the ·fu;nds :that were unquesti-ori:ably tra:ri.:sferred comitituted a lo.an. Of_col.i-rse; th.ere is no documentary evidence such as a promiss.ory 

### note e::upportirtg the 

### existence of a loan .(-Ramzan 

### v. O.nited-States Depa.rtinent of 

### Education, -20.18 WL 37Z7339 [-E.D .•

### t-J.Y. 2018])._ Thus., 

### superflu.otis documents.

### that merely confirm undisputed.facts 

### are not 

### relevant. The plaintiff argues that 

### "it c-a;nnot re·ason~bly

## _pe dis_.puted

## t.hat Pl-aihtiff'

## s al1eg.at:ions put at 

### issue th~ s.our.ce 

### of fu;nds used 1:o pay down the TDMortgage, irtc.luding,. in particular, whether ari.y 

### such payments were 

### from 

### f.μ-nds B'.arry 

### loaned.to 

### D.e:fend~nts:' (M.emorartdum ih Supp9rt., page~ _(NiSCEF Doc. No. 122]}. Fir$t, three 0£ the fou~ alleges 

### loans were:

### paid directiy 

### to· TD Bank; thus, 

### this a'rgument 

### isdif•ficult. 

### to comprehend, More 

### importantly,. it 

### i.s. simply not rel'qvant 

### how the d~fendants spent the funds 

### given to them.. The nature 

### of that spending cannot establi-sh the 

### transfers made· were 

### loans a:t 

### c1ll. ·Furthe-.r, al"l the documents 

### sought by the plp:intiff s.uffer the same infirmities. They do not help support any of the 

### 5


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### FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

6 of 6 plaintiff's allegations the money transferred were loans. Therefore, based on the foregoing, the motion seeking discovery is denied. So ordered. 

### ENTER:
DATED: March 141 2024 Brooklyn N.Y. Hon. JSC

6 Leon 

### Ruch~

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