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Hersko v. Hersko

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

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$} 57 th 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 63 rd"

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

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

Footnotes

[1] of 6 [* 1] $169,834.4 5. 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 condominiu m which would then enable the defendant s to sell the condominiu m and repay the plaintiff . The following week verified second amended complaint alleges the plaintiff loaned the defendant s another $90,163.55 which was also intended to pay off the mortgage connected to the condominiu m. 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 ctefendant s another $250,000 which was also used to payoff the mortgage connected to the condominiu m. 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 defendant s promised to secure, the loan payments with the condominiu m but concede . thci.t such guaranty . . was never reduced to a writing. No funds were ever returned arid title to the condominiu m was never transferre d to the plaintiff . This lawsuit was commenced and alleges two causes of action, namely breach of contract and ·the imposition of a: construct ive trust. The plaintiff now seeks the defendant 's bank records related to these four loans. The plaintiff argues that the money "loaned 2

[2] of 6 [* 2] to the Defendant s were used to pay down the mortgage on the Condo and to facilitate the purchase . of the House ... These allegation . s go directly to Plaintiff 's claim that a loan agreement exists between the parties and that Plaintiff is entitled ,to a constructi ve trust in the condo. However, Defendant s have refused, to produce documents reflecting the source of funds used to purchase the Propertie s" (Memorandu m in Support, page 6 [NYSCEF Doc. No. 122]). The defendant s have riot produced the requested informatio n arguing they have provided all relevant discovery and these requests are not relevant. Conclusio ns 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 individua l who is in possessio n of the documents (New York ex rel. Boardman v: National Railroad Passenger Corporatio n, 233 F. R. D .. 200 6]) . This rule applies where documents of a party are in the possessio n .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

[3] of 6 [* 3] 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 informatio n from his own agent. The failure to sect1re relevant documents from the ,plaintiff 's own agent militates against seeking them from the defendant s. 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 defendant s, Notwithst anding, the court must consider the question of relevancy . ''A party seeking discovery must satisfy the threshold requireme nt that the request is reasonably calculate d to yield informatio n that is "material and necessary "-L e. , relevant-r egardless 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 [ 1 st Dept . , 2019 l) . Any discovery disputes must ultimately be brought pefore the trial court. Further, the trial court maintains "wide discretion tb decide whether informatio n sought is 'material and necessary ' to the prosecuti on or ciefense of an action" (Vargas v. Lee, 170 AD3d 1073, 96 NYS3d 587 [2d Dept., 2019]). "According ly~ absent an error of law or an improvide nt exercise of discretion " the Appellate Court "will not disturb a trial court's discretion ary discovery determina tion" 4

[4] of 6 [* 4] ( 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:note d. 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:ab ly 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 5

[5] of 6 [* 5] plaintiff's allegations the money transferred were loans. Therefore, based on the foregoing, the motion seeking discovery is denied. So ordered. ENTER: DATED: March 14 1 2024 Brooklyn N.Y. Hon. Leon R u c h ~ JSC 6

[6] of 6 [* 6]