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Blaine Larsen Farms, Inc. v Stanley Penn & Sons Feed Inc. 2007 NY Slip Op 33765(U) November 8, 2007 Supreme Court, Nassau County Docket Number: 6823-04/ Judge: Karen Veronica Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 25 NASSAU COUNTY
PRESENT:
Honorable Karen

MurDhv Justice of the Supreme Court
J-

BLAINE LARSEN FARMS, INC.,

Index No.
Plaintiff,

16823/04

-againstSTANLEY PENN & SONS FEED INC., and

Motion Dated:

WESTERN HAY NEW YORK LLC,
Defendants.

7/25/07 8/08/07 Motion Submitted: 8/20/07 Motion Sequence: 009, 010, 011

The following papers read on this motion:
Notice of MotioniOrder to Show Causeoo.oooo.oo.oooooooo..oo.

Answering Papers.......oo.oo.............oo..oo...................oo...oo.

Reply............................................................................. . Briefs: Plaintiff' s/Petitioner ' s.......oo..oo.........oo.oo.....oo....oo
Defendant' s/Respondent'

Soo....oo.......oo.................

Transcript of Video Taped Deposition ..oooo.oo.oo....oo.......

3103 , (1) prohibiting Defendants move this Court , for an Order ; and (2) an the Plaintiff Blaine Larsen Fars , Inc. , from deposing George Miler , Esq. served upon Miler.
, pursuant to CPLR Order quashing a subpoena duces tecum

By a separately noticed motion, Defendants move for an Order pursuant to CPLR 3103 prohibiting the Plaintiff from filing and presenting a video-taped deposition of defendants witness, G. James Petteys.
Plaintiff cross moves pursuant to 22 NYCRR

202. 15

(g), for

an Order authorizing

it to fie the deposition of G. James Petteys.

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In mid- 2004 , the Plaintiff Blaine Larsen Farms , Inc. (hereinafter " Blaine Larsen 00 worth of commenced the within action , alleging in sum , that it delivered some $25 000. ) for alfalfa hay to co- Defendant Stanley Penn & Sons Feed , Inc. (hereinafter " Stanley which it did not receive payment.
Significantly, and as noted in this Court' s previously issued, November 6, 2006 Western Hay Order , in 2004 , co- Defendant Western Hay New York , LLC, (hereinafter " s issued and outstanding shares a Utah limited liabilty corporation, acquired all Stanley
from non-

assume certain of Stanley ' s outstanding liabilties (Stock Purchase 3). Exh.
B"

par Robert V. Penn - Stanley s then sole shareholder - and also agreed to Agreement; Pltff's Opp.

The instant matter ultimately appeared on this Court' s Trial Calendar in Januar of , vacating the 2007, but the Court (Brandveen , J. ), issued an Order dated January 23 2007 Note of Issue and placing the matter to the Trial Recertification Par, upon finding that " , in fact material fact in the certificate of readiness " was incorrect and that the matter was not (Defs ' Exh. 1 " 202.
ready for trial (see, 22 NYCRR 21fe)J

" on the depose witnesses but instead, elected to proceed by " serving multiple trial subpoenas Defendants. The subpoena s were allegedly defective and made the subject of a motion to 4). In response to the Defendants ' motion to quash by the Defendants (Lynn Aff. - over the quash , the Plaintiff was allegedly unprepared to proceed to trial and requested , after which Justice Defendants ' objection - that the matter be marked off the calendar Brandveen issued the above-mentioned Order.

According to the Defendants , in preparing the case for trial , the Plaintiff did not

A Certification Conference was later held before Justice McCabe on Februar 27 2007 , and the paries executed a Stipulation pursuant to which the Plaintiff was permitted

Salt Lake City, to depose " a person with knowledge offacts for both corporate defendants in ). The Defendants argue that this Utah on or before April 20 2007" (Defs ' Exh. , and that witness was the only one mentioned by the Plaintiff at the time of the conference paries would proceed they entered into the Stipulation "based on the understanding that the - an assertion disputed to trial" after this single deposition was completed (Lynn Aff. , ,- 11) by the Plaintiff.

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On June 18 ,

2007, after delays in arranging the examination ensued - for which each
James Petteys , President and/or managing

side blames the other - the deposition of G.

member of Western Hay, was conducted and videotaped in Salt Lake City, Utah. The
Defendants were represented at the deposition by local Utah counsel (Lynn Aff. , ~ 7).
It is

undisputed that the written Notice of Deposition served pursuant to the

Stipulation did not contain a formal notice apprising the Defendants that the deposition would be videotaped , as required by 22 NYCRR ~ 202. 15(c) (Ezra Aff. , ~ 2; Defs ' Exh. ). According to Plaintiff's counsel , the decision to video tape the deposition was made at the last minute - or at least within a few days prior to the examination when the reporting service mentioned that videotaping was an option (Ezra Aff. , ~,- 21- 23). Counsel notes further that defense counsel did not register any objection to the taping - either before the deposition commenced or while it was being conducted (Ezra Aff. , ~ 25).
In late June of2007 , shortly after the Petteys deposition was completed, the Plaintiff upon non-par served a Notice of Deposition and - Stanley s then George Miler , Esq. , an attorney who apparently represented Robert V. Penn
accompanying subpoena duces tecum

connection with the 2004 sale of his stock to Western Hay (Lynn every ). The subpoena demands the production of inter alia, Aff. ~~ 8- 9; Defs ' Exh. writing " entered into between Stanley and Western Hay relating to the 2004 asset sale and
sole shareholder - in

to the alleged obligation of Western Hay to pay for the products delivered by the Plaintiff - as well as documents relating to the sale ofthe shares " from or by any shareholder with the surame Penn to Western Hay * * *" (Defs ' Exh., "
and applications for an Order: (1) prohibiting the Plaintiff from deposing, non-par Miler quashing the subpoena; and (2) for furter relief precluding the Plaintiff from utilizing
Petteys ' video- taped deposition.

The Defendant Stanley and Western Hay now move

by

separately noticed

The Court agrees that the Defendants have established their entitlement to a protective order with respect to the Notice of Deposition and subpoena served upon nonpar George Miler, Esq. (see CPLR 3101).

It is well settled that where, as here, discovery has been sought from a non-part, special circumstances " must be demonstrated before the requested disclosure wil
authorized

(see e. g., Doe v. Karpf,

36 A. DJd 652 , 826 N.

2d 584 (2d Dept. , 2007);

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see 287 A. 2d 601 , 731 N. S.2d 763 (2d Dept., 2001); Dept. , 2005); Lanzello v. Lakritz, 2d538 Carbone, c., 31 A. DJd 725 726, 819N. also, Moran v. McCarthy, Safrath 2d 882 (lst Dept., 1998)). (2dDept. , 2006); Newman v. Lotwin 247 A. 2d 318, 668 N. The Plaintiff has not established the existence of special circumstances.

, 829 Companion Life Ins. Co. of N.Y. v. All State Abstract Corp. 35 A. DJd 519, 521 Tannenbaumv. City of New York 30A. 3d357, 358, 819 2d536 (2dDept. 2d 773 (2d st Dept. , 2006); Attinello v. DeFilppis 22 A. DJd 514 801 N. 2d 4 (1
, 2006);

Indeed, the Plaintiff's claims with respect to the need for Miler s testimony are
i. e. attenuated claims to the effect predicated upon vague , speculatively framed assertions, Miler inter alia that the Defendants ' principals may have made undescribed statements to

at the purchase agreement closing - or at some other unspecified time - relating to the (e. g., White Bay Defendants ' purported contract liability to the Plaintiff(Ezra Aff. ,-~ 162d 865 (2d Dept., 2001)). Furter Enters. v. Newsday, Inc. 288 A. 2d 211 , 732 N. the testimony s mere relevance - assuming that the projected testimony can be viewed as (Moran v. McCarthy, Safrath relevant - wil not suffice 8 A. DJd 360 , 777 N. & Carbone, P. c., supra 769 (2d Dept., 2004)).
17) to establish special circumstances at 726; Tannenbaum v. Tenenbaum,

Nor has the Plaintiff shown that the information now sought from Miler was
Moran v. McCarthy, Safrath

unobtainable from alternative sources during the course of regular, preCarbone, P. c., supra; Degliuomini v. Degliuomini, 308
at 358)

trial discovery

(see,

to pay for materials delivered to Stanley

is overbroad and (see Lyn Aff. , ,- 20). Moreover " which lacking in specificity since it demands every writing " and/or " all * * * evidences Western Hay in any sense relate to the asset sale and the alleged obligation of co- Defendant (Matter of Fernald v. Vinci 5 A. DJd 596 , 772
, the subpoena duces tecum

2d 501 , 764 N.

2d 846 (2d Dept. , 2003);

Tannenbaum v. City of New York, supra,

2d 860 (2d Dept. , 2004);

White Bay Enters. v. Newsday, supra).

The Cour is persuaded by the Defendants ' alternative assertion that the scope of
discovery at this currently late stage of the proceedings was effectively defined by the Februar 27, 2007 Stipulation , which provides only for the deposition of a single witness not the reopening of disclosure to the extent of authorizing the issuance of subpoenas and the noticing of a non- part depositions.

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determination , it is unnecessary to reach the Defendants remaining contentions with respect to inter alia the application of the attorney-client and work-product privileges. However , the Plaintiff's cross-motion for an Order authorizing the
In light of the Court' s
NYCRR 15Ig)).

use and fiing of the video taped deposition ofG. James Petteys , should be granted (see , 22 The Defendants ' related motion for a Protective Order pursuant to 202. CPLR ~ 3103, is denied.
taking a deposition to record it on videotape (and) (t)here is no requirement to show special need and videotaping may be employed over the objections of a bashful or reluctant witness . . . . However , CPLR 3103(a) gives the courts wide discretion to preclude or appropriately limit the use of any paricular disclosure device where it determines that the
Generally, ' CPLR3113 (b) and 22 NYCRR202. 12 and202. 15 freely permit a part

Maples

use of that device would cause unreasonable anoyance st Dept.
257 A. D.2d 53 ,

or embarrassment." , 1999);

(Jones v.

55-

, 691 N.

2d 429 (1

see, Campaign for
st

2d 411 (1 Dept., 2000); 2d 312 , 706 N. Co. 193 A. 2d 645 646 , 597 N. EDP Med. Computer Sys. rests 461 (2d Dept. , 1993)). The burden of proving entitlement to an Order of Protection 2d 689 (2d 282 A. 2d 672, 723 N. with the
Fiscal Equity v. State of New York,

271 A.

v. Sears, Roebuck

par

seeking it

(Vigilante v. Ghetto Kids,

Dept., 2001)).
Although the Plaintiff concededly did not adhere to the literal mandate of ~ 202. 15 by supplying prior notice that the deposition was to be video taped, the Defendants
the taping process (see, 22

(c)

neither interposed contemporaneous objections when the deposition was conducted, nor NYCRR currently identify any paricular technical infirmity in Nor have they argued that the video taping caused , or was likely to cause (Jones v. Maples, supra; see unreasonable anoyance or
202. 15(d), Ig)). embarassment II to the witness

also, Campaign for

Fiscal Equity, Inc.

v. State of New York, supra).

regarded. However , upon the constellation of relevant factors presented here , the Court

To be sure, the notice requirement imposed by the applicable rule is not to be lightly

agrees that an exercise of its discretion in favor of granting the Plaintiff's application is

waranted

(see, 22

NYCRR

202. 15Ig)).

It is settled that ( t )he supervision of discovery, and the setting of reasonable terms and conditions for disclosure , are within the sound discretion of the Supreme Court"

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(Provident Life

Cas. Ins. Co.

v. Brittenham,

284 A.

2d 518 , 727 N.

2d 142 (2d

Dept. , 2001)

see, Olexa v. Jacobs 36 A. DJd 776, 829 N.

2d 564 (2d Dept. , 2007)).

deposition was taped at a time when only local , Utah counsel was present , the Plaintiff therefore , engaged in shar practice and should be estopped from using the tape (Lynn
Reply Aff. ,- 11).

Lastly, the Court is unpersuaded by the Defendants ' alternative claim that because the

remaining contentions and concludes that none supports an award of relief beyond that granted above.

The Court has considered the paries '

Accordingly it is

that the motion pursuant to CPLR ~ 3103 by the Defendants Stanley Penn & Sons Feed, Inc. , and Western Hay New York , LLC, for: (1) a Protective Order prohibiting the Plaintiff Blaine Larsen Fars , Inc., from deposing George Miler , Esq. ; and served upon Miler , is granted, and it
ORDERED (2) a further Order quashing a subpoena duces tecum

is fuher
ORDERED

that the cross-motion by the Plaintiff Blaine Larsen Fars, Inc , pursuant

to 22 NYCRR ~ 202. 15(g), for an Order authorizing it to fie the deposition ofG. James Petteys , is granted; and the Defendants ' motion for an Order prohibiting the filing of same is denied.
The foregoing constitutes the Order of this Court.

Dated: November

8 , 2007

Mineola, N.

EN"E
2 0 1001

NJSSi,,J

(;Nn' offCE
K'5

COUNTY CL8



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