Plaintiffs, INDEX NO. : Motion by plaintiffs pursuant to CPLR 3124 to compel defendants to produce

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice MURRAY P. GRUBER and HELEN GRUBER TRIAL/lAS, PART 48 NASSAU COUNTY -against- Plaintiffs, INDEX NO. : DARYL GRUBER KULOK and SCOTT KULOK, Defendants. MOTION SUBMISSION DATE: 5/15/06 MOTION SEQUENCE NO. 003, 004, 005 The following papers read on this motion: Notice of Motion, Exhibits & Affirmation Notice of Cross-Motion, Exhibits & Affirmation Notice of Motion, Exhibits & Affirmation Reply Affirmation of David G. Samuels Affirmation of Sean C. Sheely in Support of Defendant's Opposition Motion by plaintiffs pursuant to CPLR 3124 to compel defendants to produce certain documents and to appear for a further deposition and to impose sanctions on defendant Scott Kulok and defendants ' counsel is denied. Motion by plaintiffs to amend the complaint pursuant to CPLR 3025(b) in the form annexed to the moving papers is denied. Cross motion by defendants for a protective order pursuant to CPLR 3103 preventing plaintiffs from obtaining, inter alia, documents from The Limousine Service, Inc., and from conducting the out-of-state deposition of a representative thereof, is granted.

2 This case involves the Lila Gruber Research Foundation, a New York Charitable Trust, operating as a private Foundation which was formed pursuant to an indenture of Trust made as of January 1, 1962 by and between plaintiff Murray Gruber and his prior wife, Lila Gruber, now deceased. Originally known as the Dermik Research Foundation the Foundation s name was changed to honor the memory of Lila Gruber after her death in The sole and exclusive purpose of the Foundation is to encourage and support causes that serve charitable, educational, scientific and/or religious purposes and causes dedicated to the prevention of cruelty to children and animals. Presently the trustees of the Foundation are: plaintiffs Murray Gruber and his wife Helen Gruber, his daughter Daryl Kulok and Daryl' s husband, Scott Kulok. Plaintiff Murray P. Gruber, now eighty nine years of age, is fully responsible for having funded the Foundation which currently has total assets of approximately $ According to the complaint, the Kulok defenda nts, without proper authorization, have transferred approximately onehalf of the Trust's total assets to the State of Connecticut, thereby interfering with the proper administration of the Foundation s assets, and are unfit to serve as trustees. As a consequence of the hostilties and difference of opinion that have developed among the trustees, allegedly making future cooperation in the administration of the affairs and assets of the Foundation improbable, if not impossible plaintiffs seek the removal of the defendants as trustees of the Foundation and a return of any monies/assets of the Foundation currently under their custody and control. Alternatively, plaintiffs request the establishment of two separate charitable trusts: one in New York and one in Connecticut to be administered by plaintiffs and defendants respectively.

3 Three motions are presently before the court including two motions by plaintiffs seeking to compel certain discovery (CPLR 3124) and to amend the complaint (CPLR 3025) and a cross motion by defendants for a protective order (3103). With respect to plaintiffs' motion to compel defendants to comply with certain discovery requests, it is well settled that CPLR 3101 (a) provides for full disclosure of all evidence material and necessary to the prosecution or defense of an action. Under this rubric, however, unfettered disclosure is not required, and supervision of disclosure is generally left to the trial court' s broad discretion. Palermo Mason Const. Inc. v Aark Holding Corp. 300 AD2d 460, 461 (2 Dept. 2002). While the "material and necessary standard is to be liberally construed, it does not mean that litigants have carte blanche to demand production of whatever documents they speculate might contain something helpful. Vyas v Campbell 4 AD3d 417, 418 (2 Dept. 2004). While plaintiffs are unquestionably entitled to complete information and documents for 2004 and 2005 vis vis expenditures and/or charitable grants made by the defendants with Foundation funds, they are not entitled to information and documentation regarding personal charges by Mr. Kulok to his company, Acme Advertising, which were not legitimate business expenses (including) personal trips for Mr. and Mrs. Kulok and/or members of his family, automobiles, vacations, a child' s Bar Mitzvah celebration, limousine expenses and other personal expenses improperly charged to Acme Advertising. The relevance of such information is totally dubious and in the view of this court, the information sought is neither material nor necessary to the prosecution of this action nor is it reasonably calculated to lead to the discovery of admissible evidence. Similarly, the testimony of a representative of The Limousine Service, Inc., a non-party to the action

4 and a non-resident of the state, and the request for All documents from January 1, 2002, to the present concerning the services of The Limousine Service, Inc. requested by Scott Kulok and/or Daryl Gruber Kulok individually or on behalf of Acme Idea Company, including, but not limited to, correspondence, facsimiles, memos, e- mails, notes, service reservations, calendars, biling records or invoices, cancelled checks, and telephone message pads, telephone records, or journal entries, showing the names of the persons picked up, pick-up locations and dropoff destinations, and the persons or entities who paid for the services is irrelevant to the dispute herein in addition to being overly broad. With respect to such a witness the court notes that, unless there is voluntary compliance with a notice of deposition, a plaintiff who seeks discovery must comply with the mechanisms set forth in CPLR There is no basis in the record to compel the further deposition of defendant Scott Kulok to answer questions regarding a hypothetical defamation claim against plaintiffs counsel, David G. Samuels, Esq. which is not the subject of the instant lawsuit and, therefore, as defendants point out, not the proper subject of discovery in this action. Defendant Scott Kulok has apparently neither filed a lawsuit against Mr. Samuels nor asserted any defamation claims against him in this action. Further the record is devoid of any basis to impose sanctions against defendant Scott Kulok and the law firm of Holland & Knight, LLP pursuant to 22 NYCRR and DR7-02(a)(1) in connection with the January 20, 2006 cease and desist letter sent to plaintiffs' counsel, David G. Samuels, Esq. It bears noting, however, that, generally, statements made by parties, attorneys and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with

5 which they are made, to the extent they are material and pertinent to the issue to be resolved in the proceeding. Sinrod v Stone, 20 AD3d 560, 561 (2 Dept. 2005). A determination whether to grant leave to amend a pleading is left to the sound discretion of the court. Although ordinarily leave wil be freely granted in the absence of prejudice or surprise resulting from the delay, leave wil be denied if the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit. Sewkarran v DeBells, 11 AD3d 445 (2 Dept. 2004); Quinto v New York City Transit Authority, 7 AD3d 689 (2 Dept. 2004). The allegations which plaintiffs seek to add to eir original complaint regarding defendant Daryl Kulok' s purported mental stability, based on their characterization of her deposition testimony as "incoherent " and her purported admission that she cursed and used foul language in the presence of her father and two children, are so subjective, conclusory and attenuated as to be devoid of merit, as are the proposed allegations that defendant Scott Kulok used monies of a private business in which he has an interest to pay personal expenses. Although pursuant to the Preliminary Conference Stipulation and Order dated February 17, 2006, this case is on an expedited track, with all discovery to be completed by June 19, 2006, the plaintiffs recently served a demand for defendant Daryl Kulok's confidential psychiatric records from January 1, 2003 to May 16, 2006, as well as records regarding defendants' personal use, via Acme Idea Company, of the services of The Limousine Service, Inc. from January 1, 2003 to the present, and all correspondence between defendants or defendants' counsel and the Limousine Service, Inc. from August 2, 2005 to present. Such information is beyond the scope of defendants' trusteeship duties and, in the case of defendant Daryl Kulok' s psychiatric d '

6 &.. records, beyond the scope of the complaint, and, as such, irrelevant-neither material nor necessary to the prosecution of this action. The defendants, therefore, are entitled to a protective order vis vis such information, In any circumstance where disclosure would, in the court' s opinion, cause unreasonable annoyance, expenses embarrassment, disadvantage or other prejudice to any person, the court has broad discretion to limit demand and inquiry, G/achman v Perlen 159 AD2d 552, 553 (2 Dept. 1990), The foregoing constitutes the Decision and Order of the Court. Dated: August 3, 2006 ENTERED AUG NASSAU COUNTY COUNTY CLERK' S OFFICE