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Sprung v Glenn Horowitz Bookseller, Inc. 2010 NY Slip Op 30510(U) March 1, 2010 Supreme Court, Nassau County Docket Number: 004500/09 Judge: Stephen A. Bucaria 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
Present:

HON. STEPHEN A. BUCARIA Justice
TRIAL/IAS , PART 2 NASSAU COUNTY

DENNIS SPRUNG as Executor of the ESTATE OF ROGER RECHLER

INEX No. 004500/09
MOTION DATE: Jan. , 2010
Motion Sequence # 001 ,

Plaintiff
002

-againstGLENN HOROWITZ BOOKSELLER, INC. and GLENN HOROWITZ

Defendants.
GLENN HOROWITZ BOOKSELLER, INC.

Counterclaim Plaintiff
-against-

DENNIS SPRUNG, as Executor of the ESTATE OF ROGER RECHLER
Counterclaim Defendant.

The following papers read on this motion:

Notice of Motion....................................................... X Cross- Motion............................................................. X Affidavit in Opposition and Further Support............. X

.............. .............. ....................

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Reply Affirmation...................................................... X XXX Memorandum of Law.. Reply Memorandum of Law........................................ X
This motion, for an order pursuant to inter alia CPLR 3212 , 3124 the defendantscounterclaim plaintiffs , Glenn Horowitz Bookseller , Inc. and Glenn Horowitz , for: (1) parial
summary judgment on its account stated counterclaim; and (2) a protective order with respect

to stated discovery demands served by the plaintiff Dennis Sprung, as Executor ofthe Estate of Roger Rechler; and a cross-motion , by the plaintiff Dennis Sprung, as Executor of the Estate of Roger Rechler , pursuant to inter alia CPLR 3025 (b), 3212 , 3124 , for an order: (1) granting him leave to amend his complaint; (2) compellng compliance with stated discovery demands; and (3) dismissing the defendants ' second and third counterclaims sounding in both determined as hereinafter set forth. quantum meruit and account stated
, are

In March of 2009 , the plaintiff Dennis Sprung, as executor of the Estate of Roger Rechler commenced the within action as against Glenn Horowitz Bookseller , Inc (" GHB" and its principal , Glenn Horowitz (collectively the " defendants ). In sum, the action demands
an accounting and/or the recovery of proceeds , if any, allegedly

generated upon the

defendants ' disposition of some 14 " lots " of rare books which had , among others , been entrsted to the defendants by Rechler prior to his death in 2008.
hundreds of rare books and related objects " to Rechler throughout an eight-year period in the 1990' , for which Rechler paid an aggregate sum of approximately $2. 7 milion.

According to Horowitz - whom Rechler first met in 1992 - he and GHB " sold

Thereafter , at some point in 2002 , Rechler approached Horowitz and asked him to sell his rare book collection. The record indicates that in response , Horowitz arranged for the books to be auctioned by Christies; that some 238 book lots were later sold at the October 2002 Christies auction - some of which were purchased by Horowitz himself with Rechler ' s knowledge; and that the Christies auction netted Rechler an overall profit of some $3. milion - although an additional , 137 auction book lots were left unsold after the auction was completed.
Notably, although Horowitz arranged the auction , Horowitz did not represent Rechler at the Christie s auction and charged no seller s commission in connection with the

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,"

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SPRUNG v GLENN HOROWITZ BOOKSELLER, INC. , et al
event.

Index no. 004500/09

The remaining 137 book lots were thereafter entrusted to the defendants with the understanding that they would be sold for an agreed-upon commission of 20%. At some point in August of2003, Horowitz himself apparently offered to purchase the remaining, 137 lots for the proposed sum of$l milion dollars, although Rechler rejected that offer.
During the ensuing three or four years (until the end of 2006), Horowitz and GHB disposed of most ofthe remaining books lots through third-part sales and later , by aranging a 50- lot donation (which was completed in December of 2006), to the University of Texas UT" ) - an institution with which Horowitz had maintained a longstanding business and/or
professional relationship.

An attached cover letter and formal appraisal performed by Horowitz dated December 2006: (1) values the UT book donation at $652 752. 00; and (2) also advises in par that ). There is no (t)he appraiser was paid a flat fee for services rendered" (Yaffe Exh. contemporaneous documentation suggesting that the defendants ever demanded compensation for the services they provided with respect to the UT donation.

to Rechler s wife , advising without explanatory comment, that " 1 owe Roger 190 grand to 30- 31; Defs ' Exh. finish up our business
" (Cmplt.,

In July of2006 , a few months before the UT donation was completed, Horowitz wrote

Apparently, by that point , Horowitz had developed a degreee of prominence in the Sunday literar archive world , as evidenced in par by a March Book Review " article entitled The Paper Chase. In substance , the article describes the then-current state ofthe literary archive market and depicts Horowitz as a major player in that arena. Although the aricle lauds Horowitz as an innovator in the archive field , it also touts him as a " savv dealer " and shrewd " book trader " with " sharp elbows " - a man who blends the " curiosity of an intellectual" with the " instincts of a business man " (Pltffs Exh.
2007, the New York Times,

The piece further suggests that Horowitz ' practices have been responsible , in part , for generating higher prices for his clients and also helped propel the archive " market through the roof' - albeit not without Horowitz himself also " getting a slice of the profits every step of the way
The Times

quotes Horowitz as stating that it was he who originally " prevailed upon

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Rechler to invest in " first editions of 20th century literature " and further comments that Horowitz' conduct in personally acquiring Rechler s books at the Christies auction was somewhat unusual" - although Horowitz later summed up his practices and philosophical reporter (t)hat' s what I do * * * I trade books " (Aricle at 5 (Internet Pagination) Pltffs Exh.
approach by informing the Times

lots

spreadsheet statements which contained columned information listing,

After the Christies auction was concluded in 2002 - and as the sale of the 137 book progressed (primarily in 2004 and 2005), the defendants sent Rechler so-called inter alia the book

lots which had been sold; the price Rechler originally paid for the books in question; and the commission amounts which had been deducted from the sale proceeds , which amounts were thereafter forwarded to Rechler (Defs ' Exhs. A" - "

Prior to sending the spreadsheets, Horowitz wrote a brief letter to Rechler - which included a spreadsheet exemplar - informing him that "this is the ( spreadsheet) version I'll use henceforth. I'll supply an update on the first of each month * * *" (Horowitz (July 29) Aff. , Exh.
Thereafter, Rechler received and retained the defendants ' periodic spreadsheet statements and the payments made pursuant thereto , without relevant comment or objection for a period of some two years (A. Cmplt. , ~~ 58- 59). By 2007 , the defendants had allegedly forwarded over $400, 000. 00 in sale proceeds to Rechler , although by their own admission they stil owed him an additional , $90 000. 00 at that juncture.
The plaintiff claims that after all the foregoing dispositions were completed in 2006, including the UT donation , there supposedly were stil 14 book lots unaccounted for and/or unsold - book lots which had been, or stil were , in the defendants ' possession , a claim the
defendants dispute.

Moreover , the plaintiff assert that many of the defendants ' post-auction book sales gain - sales which cumulatively netted Rechler only were made at a loss some $75, 065. 00 in total profit , but which at the same time generated commissions of approximately $195 000. 00.
, or for a de minimus

In light

of the foregoing, the plaintiffs complaint

demands injunctive relief
13 7 lots

compellng the return of the foregoing books lots and an accounting relating to " all
entrusted to the defendants after the 2002 auction was conducted.

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The defendants have since answered , denied the material allegations ofthe complaint set forth various affirmative defenses and interposed three counterclaims , sounding in breach

of implied contract , quantum meruit and account stated.
statements received , without objection by Rechler ,

The defendants '

account stated claim alleges

inter alia

that the spreadsheet

constituted a final and conclusive

reckoning as to the sums paid and commissions deducted , thereby barring the plaintiff from any additional recovery or relief arising out of the book dispositions. The quantum meruit counterclaim is predicated on the theory that Rechler agreed to compensate the defendants
for the services they

rendered in connection with the 2006 UT auction ,

but that the

defendants were never paid the 25% commission- based fee (some $163 000. 00), which had supposedly been agreed to.

account stated (third) counterclaim and for a protective order with respect to certain
discovery demands and interrogatories propounded by the plaintiff in notices dated June 2009.

Upon the instant notice , the defendants now move for summary judgment on their

The plaintiff opposes the application and cross moves for leave

to

amend his

complaint so as to add claims sounding in fraud , breach of fiduciary duty and accounting.
The plaintiff also demands additional relief: (1) compellng the defendants to comply with his discovery demands; and (2) dismissing the defendants ' second (quantum meruit) and third (account stated) counterclaims.

The defendants have now withdrawn portions of the foregoing account stated claim at least to the extent calculated on a straight , percentage (25%) basis - although they currently assert entitlement to a " reasonable " compensation for the UT services provided.

I:ranted . The Upon the papers submitted , the plaintiffs motion to denied. Lastly, that branch of the parties defendants I:ranted . The plaintiff s related motion denied
amend is ' respective applications for summary judgment are ' motion which is for a protective order is to compel is

With respect to the plaintiff s motion to amend , it is settled that leave to amend " to be freely granted , provided that the proposed amendment does not prejudice or surprise Tvson v. the defendant , is not patently devoid of merit
, and is not palpably insufficient

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Tower Ins. Co..

Index no. 004500/09

68 AD3d 977 , 2 Dept. , 2009).

Further (m)ere lateness is not a barrier to the amendment " since " (i)t must be lateness coupled with significant prejudice to the other side , the very elements of the laches doctrine Edenwald Contr. Co. v. City of New York 60 NY2d 957 959, 1983).
In order " (t)o establish prejudice , which must be significant * * * there must be some indication that the opposing part wil have been hindered in the preparation of its case or prevented from taking some measure to support its position (Spitzer v. Schussel supra ; see, Edenwald Contr. Co. v. City of New York. supra: #urrav v. City of New York 43 NY2d

400,

405, 1977).

The decision whether to grant leave to amend a pleading rests within the Supreme Court' s broad discretion , and "the exercise of that discretion wil not be lightly distubed" Gitlin v Chirinkin 60 AD3d 901 , 902 , 2 Dept. , 2009).

Preliminarily, while fraud and fiduciary duty claims must be pleaded
30 16(b ) (Eurycleia Partners. LPv. Seward

with

Kissel. LLP paricularity in accord with CPLR 12 NY3d 553 559 2009) " unassailable proof of fraud" is not required; nor is CPLR 3016 to be " so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud" Pludeman v. Northern Leasing Svs.. Inc. 10 NY3d 486 491 2008).

Rather , and in such a case a plaintiff need only provide detail to inform defendants ofthe substance of the claims; " namely, pleaded facts which adequately apprise them ofthe
misconduct complained of.
(e.

The plaintiffs proposed claims are sufficient to
Keefe v. Citibank. N.A.

satisfy these requirements

15 AD3d 277 , pt Dept. , 2005).

whom the (fraud) is being asserted'"

Although the amended complaint does not detail precisely how each and every disposition was tainted by fraud and/or self- dealing, the record suggests that at this prediscovery juncture , key facts may "' peculiarly within the knowledge of the part against Inc. 231 AD2d 314 , 320Bernstein v. Kelso Co.

321 quoting from Jered Contr. Corp. v New York City Tr. Auth.. 22 NY2d 187 , 194).

More paricularly, the plaintiffs proposed claims derive primarily from transactions

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which were conducted solely by the defendants, who - as alleged fiduciaries - not only maintained custody ofthe book materials entrusted to them, but also had singular knowledge of the relevant details surrounding each of the subject dispositions. Nor does it appear that Rechler would have , at his disposal , the means to independently or determinatively confirm the veracity ofthe spreadsheet sales data which he received from the defendants. Upon these facts , the plaintiff-executor cannot be expected to possess detailed factual information (Yuko relative to the specific acts and occurrences underlying the proposed claims advanced st Dept. , 2005). Ito v. Suzuki 57 AD3d 205 , 208- 209, 1

Nor have the defendants not meaningfully addressed the plaintiff s assertion that a fiduciary-type relationship existed between the parties by virtue of Rechler s conduct in

entrsting his

rare book cokllection to the defendants for disposition

(see,

Boulev v. Boulev.

19 AD3d 1049 , 1051 , 4 Dept., 2005).

v.

Skrodelis (e. Lastly, the defendants have not established laches as a matter Norbergs supra 272 AD2d 316 , 317), or otherwise demonstrated the manner in which they would be significantly prejudiced ifthe Court were to exercise its discretion in favor of
oflaw

granting the plaintiffs

motion for leave to amend

(Rosicki. Rosicki andAssociates. P. c.

v.

Cochems 59 AD3d 512 514 , 2 Dept. , 2009).

In light of the foregoing, and since " discovery, including depositions, has not been
completed" Rosicki. Rosicki and Associates. P. C.

v. Cochems

supra Yuko Ito v. Suzuki

supra the Court cannot conclude that the plaintiffs proposed claims are "patently devoid
of merit" or otherwise lacking so as to warrant denial of his motion to amend

(see Tvson v.

Tower .(ns. Co. of New York supra. 68 AD3d 977).
respective summary judgment applications relating to the defendants ' account stated (third) counterclaim , however , is denied
Those branches of the paries '

between paries to an account based upon prior transactions between them with respect to the correctness of the account items and balance due Jim-Mar Corp. v. Aquatic Const.. Ltd. 195 AD2d 868
In sum, an account stated is an agreement , express or implied

870 , 3d Dept. , 1923).

The parties themselves may expressly agree to treat certain statements or writings Bourne. Inc. v. Benderson as an " account stated" Son Development Co.. Inc.
documents Gurnev. Becker 47 NY2d at 996; M. Paladino. Inc. v. J. Lucchese

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Contracting Corp.

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247 AD2d 515 , 516).

rise to an enforceable account stated

The failure to seasonably object to a properly constituted bils or statements wil give v. Adlerstein. 63 AD3d 784).
Gassman Keidel. P. C.

Notably, " (t)he doctrine of account stated may be raised by * * * an account obligor
(In re

F2d _ aff' Rockefeller Center Properties. 241 B. R. 804 , 819, S. Lockwoodv. Thorne. 11 NY 170 , 1854 WL 5991 , 1854). Fed. Appx. 40, 2
Y. 1999, d, Cir. 2002; see,

or by a defendant seeking to prevent the reopening of a paid account * * *"

Preliminarily, the Court disagrees with the plaintiffs theory that the defendants are , assert exclusively debtors and/or fiduciary- trustees and therefore cannot , as a matter oflaw In re an " account stated" theory/defense with respect to the Rockefeller Center Properties supra: Gross v. Empire Healthchoice Assur.. Inc. 2007 WL 2066390 , at 6 (Supreme Court , New York County 2006)). Misc3d
transactions at bar (ef,

motion

Here , and viewed favorably to the defendants as the opponents of the plaintiffs Fundamental J'ortfolioAdvisors. Inc. v. Tocqueville, 7 NY3d 96, 106, 2006), the that the record can be viewed as supporting an inference that the parties agreed
inter alia,

defendants would retain possession of the book lots; that the defendants would then sell and/or dispose ofthe items in exchange for a stated , 20% commission; that the commission
debts owed would be effectively biled and then paid through deductions made from the sales proceeds; and that the transactions - and commission debts owed and then paid - would be periodically memorialized in the written statements of the sort referenced in Horowitz' January 2004 letter (Defs ' Exh.

The fact that the sums owed by the plaintiff for the services provided were not
Associates. Inc. v. separately demanded in discrete Barkstrom , supra 298 AD2d 981), is not determinative in this context , since the parties themselves allegedly agreed from the outset that the commission debts due would be paid from the sales proceeds and then recorded as such in statements conforming to Horowitz (Kensin(lton Pub. Corp. v. Kable News Co.. Inc. 100 AD2d 802 2004 " exemplar Sisters of Charity l.osp. of Bu(falo v. Rilev, 231 AD2d 272 282- 283).
billng statements (Erdman Anthonv " sheet 803; ef,

While the plaintiff contends that the sheets provided lacked sufficient itemization
and/or back-up data , a lack of itemization does not alone preclude the existence of an account
stated

(Zanani v. Schvimmer 50 AD3d 445

446;

Shea

Gouldv. Burr 194 AD2d 369

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SPRUNG v GLENN HOROWITZ BOOKSELLER, INC. , et al
371), if,
an account"

Index no. 004500/09

in fact , the parties entered into " an express agreement * * * to treat the statement as Bourne. Inc. v. Benderson Development Co.. Inc. supra.
Gurnev. Becker

at 997).
In general , parties - including even those in fiduciary-type relationships - " are free to make their contracts (Kavgreen Realty Co. v. Goldman 231 AD2d 682 684), and may

determine for themselves "the manner in which such an accounting should be had" Corr v. IJman (Kensington Pub. Corp. v. Kable News Co.. Inc. supra
; see generally,

256 NY 254 , 266, 1931).
Gross case supra The plaintiffs reliance upon the Supreme Court' Gross - which is not binding on this Court - involved a factually and legally distinguishable attempt by a plaintiff- physician to apply an " account stated" theory to medical reimbursement claims he had previously submitted - claims which the defendantmedical carier had initially authorized and paid , but which it later rejected and then sought to affirmatively recoup.
s holding in the is misplaced.

Gross however - where the Court was influenced by the highly unusual (see medical reimbursement" context in which the plaintiff-physician Gross v. Empire Healthchoice Assur.. Inc. supra. at 6) - at bar , the defendants ' account stated claim - which has been documented in an agreed-upon format: (1) arises out of a simple agreement obligating the plaintiff to pay commissions on book sales; and (2) has been interposed as a defense to the plaintiff s own , prior-commenced claim for an affirmative Gross
Unlike s claim was asserted recovery - the latter being a potential exception referenced by the Court in

In short , assuming sufficient proof of all other relevant requirements , the Cour sees no technical reason why, as the record currently stands, the involved transactions could not

give rise to an account stated defense establishing the accuracy of the amounts Rechler
allegedly received and retained without objection

(Rosner v. Globe Valve Corporation 196

Misc 408, 409).

However , triable issues of fact exist with respect to the alleged account which cannot be summarily resolved as a matter of law. More paricularly, while a failure to timely object to a properly framed account wil generally be conclusive , nevertheless a par wil not be bound by an account stated absent knowledge of the circumstances relating to the actual National Surety Co. v. President. etc.. of Manhattan Co. 252 NY 247), (Sea or where fraud
amount due (see, , mistake or other equitable considerations have been properly established

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SPRUNG v GLENN HOROWITZ BOOKSELLER, INC. , et al
Modes. Inc. v. Cohen 309 NY I , 3- 4
1955).

Index no. 004500/09

Here , the Court has only just authorized the addition of claims sounding in inter alia

fraud and breach of fiduciary duty, none of which have been subjected to the scrutiny of discovery. Additionally, and despite the January, 2004 spreadsheet " exemplar" letter , the plaintiffhas raised questions as to the accuracy, consistency and origin of certain spreadsheet statements and the notations contained therein - including the defendants ' December 19 2005 sheet , and the now admittedly errant application of a 25% commission rate to certain sale dispositions.
Further , an independent duty to account may also arise by virte of the paries alleged fiduciary relationship, which may - or may not - be governed by the purported
agreement with respect to the documentation provided by the defendants

Kensington Pub

Corp. v. Kable News Co.. Inc supra

Lastly, it is settled that parties " should be afforded a reasonable opportunity to
Venables conduct discovery prior to the determination of a motion for summary v. Sagona. 46 AD3d 672). It is clear that the paries ' respective motions have been made before any significant or meaningful discovery has been conducted and that there may be key erushalmi & facts " Associates. LLP v. Westland Overseas Corp. 21 AD3d 1098, 1099).
judgment" within the knowledge of individuals who had not yet been deposed"

Upon the conflicting allegations and claims advanced by the parties , the Court cannot reach any determinative conclusion with respect to the the defendants ' account stated theory Arrow oard of Fire Com rs of Bellmore Fire Dist. Emplovment Agencv. Inc. v. David Rosen Bakerv Supplies 2 AD3d 762).
(see generally, 23 AD3d 507;

Similarly, that branch of the plaintiffs motion which is for dismissal
- is also

of the

defendants ' quantum meruit (second) counterclaim - which is based upon services provided denied with respect to the UT donation

As to the plaintiff s " unclean hands " dismissal theory, on which it primarily relies , the Court cannot render any conclusive holding at this point concerning that fact- dependent Buller v. Giorno 28 AD3d 258). Frank v. Sobel.
defense (see generally, 38 AD3d 229, 230;

Further , although a claim grounded on a quantum meruit theory wil generally fail where a valid and binding contract exists arising out of the same subject matter

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Morgan Stanlev Dean Witter

see IDT Corp. v. 70 NY2d 382 388- 389 Co.. 12 NY3d 132 , 142 , 2009), it is equally settled that when ''' there is a bona fide dispute as to the existence of a contract * * * a * * * (part) may proceed upon a theory of quasi-contract as well as breach of contract and wil not be required to elect his or her remedies (AHA Sales. Inc. v. Creative Bath Products. Inc. 58 AD3d Hochman v. LaRea 14 AD3d 653 654- 655).

Clark-Fitzpatrick. Inc.. v. Long Is. R.

, 1987;

quoting from,

Viewing ' the evidence most favorably to the defendants , the plaintiff has plainly

denied " the very existence " of the alleged agreement to pay for services relating to the UT Hallwell East 54th Street Restaurant Corp. 67 AD3d 957, v. Gordon 61 AD3d 932 , 934).
donation (see, Elbroii v. 22 958;

Moreover , while the underlying appraisal agreement states that the defendants received a " flat fee " for the appraisal- a claim which the defendants now deny, the Court reads the defendants ' quantum meruit allegations as demanding compensation for services
rendered over and above the subsequent preparation of the UT appraisal (see,

Snitovsky v.

Forest Hills Orthopedic Group.
Summary judgment is a drastic remedy

P.

c., 44 AD3d 845).
(see,

Andre v. Pomerov 35 NY2d 361 , 1974;

#oshevev v. Pilevsky, 283 AD2d 469), and " ( e )ven the color of a triable issue forecloses the Rudnitsky v. Robbins 191 AD2d 488 remedy (In re Cuttitto Familv Trust 10 AD3d 656;

489).

Turning to the parties ' respective discovery applications , the parties ' submissions indicate that by notices dated June , 2009 , the plaintiff served detailed interrogatories and a notice of discovery and inspection - in response to which the defendants have made the instant application for inter alia a protective order.

The record establishes that the plaintiffs

interrogatories

and discovery/inspection
exclusive of extensive

notice collectively encompass over 75 separate parts and items ,

to the instructional provisions , and include a interrogatories - demands which have been partially duplicated in the plaintiff s notice of discovery and inspection.
In support of their application , the defendants contend
inter alia
that certain

separate document demands attached

document demands are over broad , oppressive , and request information with respect to
collateral issues as to which specific claims have not been advanced. The Court agrees to the

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extent indicated below.

Index no. 004500/09

far-reaching (Kavanagh v. Ogden Allied Maintenance Corp. 92 NY2d 952 , 954 , 1998), and that immunity therefrom must be Spectrum Svstems Intern. Corp. v. Chemical Bank established by the resisting Smith v. Moore NY2d 371 377, 1991), nevertheless " (European American 31 AD3d 628), nor Bank v. Competition Motors. Ltd. 186 AD2d 784 , 785), paricularly where the demands at 138 (plittner v. ./erg issue would attach "undue attention AD2d 439, 440- 441), or where they are overly broad , unduly burdensome, or lacking in Sons. Ine. v. New York City Health and Hospitals Corp.. 62 NY2d 75 , 79 , 1984).

Although disclosure
part

is " open

and

unlimited disclosure is not required" demands * * * be honored"

wil

earte blanehe

" to collateral matters

andJl

specificity

(see,

M. Farbman

disfavored

Sons. Inc. v. New Moreover unparticularized document demands YorkCity Health and Hospitals Corp. supra and those employing categorical or unefined any and all" or " each and every " are generally introductory, terminology, such " all (e. Watson v. Esposito 231 AD2d 512 , 516).
M. Farbman

Even where , as here , obj ections have not been timely interposed , as required by CPLR

3122(a), the Court may always strike demands which are "palpably improper " including McMahon v. A viette Agencv 301 AD2d those which are over broad and unduly oppressive 820 821; Zambelis v. Nicholas 92 AD2d 936 937).

With these principles in mind , and upon balancing the " competing interests " at issue (Kavanagh v. Ogden Alled Maint. Corp. supra. at 95), the Court finds that the majority of the document demands propounded are palpably improper and over broad. Apar from the fact that the foregoing demands/items have been uniformly prefaced by the disfavored generality, " all" , the demands are open-ended and request materials lacking in ostensible materiality and relevance.
Among other things, the demands request - often without stated temporal limit - the of, inter alia of " all" documents "reflecting " or relating to " correspondence or

production

communications " between the defendants and Rechler concerning the original acquisition of Rechler ' s collection in the 1990' s; " all" documents, in substance , which relate to each book lot purchased by the defendant at the Christies auction , together with the lots ' ultimate and subsequent disposition; and " all" documents which reflect any agreements or

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arrangements with - or compensation obtained from - any third par " in connection with" all rare book or manuscript appraisal performed by the defendants from 2000 onward. The foregoing demands , if literally enforced , would encompass virtually every document which in any way relates to , or even mentions , the original book material or not acquisition process and/or the defendants ' acquisition or disposition of books at the Christies Watson v. Esposito 231 AD2d 512 516). Indeed , a majority of the ensuing document requests are similarly framed in over broad fashion and/or sweepingly inclusive language , which demand " all" documents " reflecting, inter alia the transactions Watson v. Esposito supra occurences or agreements
auction to which they may refer

It bears noting that the plaintiff has not interposed claims of wrongdoing based upon Rechler s acquisition of his book collection; nor has he alleged that the defendants undertook

any special duty of care in assisting Rechler acquire those books ,

or set forth specific

allegations identifying acts of wrongdoing committed by the defendants with respect to the Chrsties book sales. Rather , the plaintiffs claims, including those in his amended complaint , focus principally on the 137 lots which were entrusted to the defendant after the 2002 Christies auction was completed.

It is settled that the Court possesses broad discretion to limit discovery in order to prevent unreasonable annoyance , expense , embarrassment , disadvantage or other prejudice and also "to determine what is ' material and necessary ' as that phrase is used in CPLR (Auerbach v. Klein supra: Bellv. Cobble Hill Health Center. Inc 22AD3d 620 622; see Pacheco v. New York City Housing Authority 48 AD3d 534).
3101(a)"

Upon the exercise of that broad discretion , the Court agrees that a significant number of the demands and interrogatory requests attach "undue attention " to collateral matters
and/or are overly broad ,

burdensome ,

and lack adequate specificity in identifying the

materials , documents and items requested. To the extent that certain demands may be more reasonable in scope , or alternatively, that more narrowly framed requests might elicit properly discoverable matter , it is settled that Courts are not obligated to prune defective (see Latture v. Smith. 304 AD2d 534 , 536).
demands or requests

The Court has considered the parties ' remaining contentions and concludes that they

do not support an award of relief beyond that expressly granted above.

Accordingly, that branch of the motion by the defendants-counterclaim plaintiffs

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Glenn Horowitz Bookseller, Inc. , which is for a protective order with respect to stated denied I:ranted in accordance herewith and the cross motion by the plaintiff Dennis Sprung, as Executor of the Estate of Roger I:ranted to the extent that the amended complaint in the form attached to the plaintiffs cross motion shall be deemed served , and the plaintiff s cross motion is otherwise denied ; and the defendants ' time to serve an amended answer shall be enlarged until 20 days after service upon them of a copy of this decision and order.
discovery demands is , and the motion is otherwise Rechler is

purpose of setting

A Preliminary Conference has been scheduled for May 18 , 2010 at 9:30 a. m. in Chambers of the undersigned. Please be advised that counsel appearing for the Preliminar shall be fully versed in the factual background and their client' s schedule for the firm deposition dates.
Conference

;;J.
Dated .lb'

TERED
. MAR 082010

NAi$ O COUNTY COUNTY CLERK'

OFF



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