Hersko v Hersko

2024 NY Slip Op 30846(U)

March 14, 2024

Supreme Court, Kings County

Docket Number: Index No. 519449/2021

Judge: Leon Ruchelsman

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.
FILED: KINGS COUNTY CLERK 03/14/2024 03:17 PM INDEX NO. 519449/2021

NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 03/14/2024

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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 plaintiff ha~ 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 submitted by 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 in a 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 2 012. _In March 

2012 th~ tilain•t'iff alleges· he lqaned the defendaJJ.ts an additional 

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$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 pay off the mortgage connected to the condominium. 

Thos·e funds were also paid directly to TD Bank by plaintiff's 

attorney from the same 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 Bank by 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 such guaranty was never reduced . . . 

to a writing. No funds were ever returned arid title to the 

condominium was never transferred to the plaintiff. This lawsuit 

was commenced and alleges two causes of action, namely breach 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 

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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 in the 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 they have provided all relevant discovery and 

these requests are not relevant. 

Conclusions Of La~ 

It is well settled that a pax:ty may be required to produce 

documents held by a third party 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 .. 200 6]) . 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 

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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 sect1re relevant 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; £rom himself, 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 satisfy the 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 •.. or a 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 . , 2019 l) . Any discovery 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" 

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( id) .. 

In th.is. cas_e the _plaintiff a.11eges :he loaned funds to th.e 

defendants. The defendants do no·t dispute they received :the 

funds· from the 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, -2 0.18 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 

TD Mortgage, 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 

is dif•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.uff er the same infirmities. They do not help support any of the 

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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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