Justice. #005 Submitted January 10 and January 24, 2007, respectively. Present: -against- INDEX NO: 11934/05. Defendant.

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 19 Present: HON. WILLIAM R. LaMARCA Justice ASTORIA FEDERAL SAVINGS & LOAN ASSOC., Successor by merger with Long Island Savings Bank, FSB Plaintiff, Motion Sequence # 002, # 003, # 004 #005 Submitted January 10 and January 24, 2007, respectively. -against- INDEX NO: 11934/05 JAMES J. HARTRIDGE, Defendant. The following papers were read on this motion: ARO Non-Part Notice of Motion (# 002)... Aff rmation in Oppos ition... CUCCI and WILSHIRE Non-Part Amended Notice of Motion(# 003)... CUCCI and WILSHIRE Non-Part Memorandum of Law in Support... Aff rmation in Oppos ition... Castellano Reply Aff rmation... 6 Reply Memorandum of Law... Sur-Reply Affi rmation BEST NEST Non-Part Notice of Motion (# 004)... Affirmation in Opposition Reply Affrmation... I""""""""""""'" I"""'" I""""... KARANASOS and SACCO & FILLAS Non-Part Notice of Motion (# 005).. Affirmation in Opposition... Reply Affirmation

2 Requested Relief Without identifying itself, counsel for non-party ARO CAPITAL, LLC (hereinafter referred to as "ARO"), purported successor in interest to plaintiff, ASTORIA FEDERAL SAVINGS & LOAN ASSOC., successor by merger with LONG ISLAND SAVINGS BANK FSB (hereinafter referred to as "ASTORIA"), moves (# 002) for an order quashing the subpoenas served by defendant, JAMES J. HARTRIDGE (hereinafter referred to as HARTRIDGE"), and for an order disqualifying HARTRIDGE' s attorney, Samuel Glass Esq., as counsel for the defendant. In companion motions, non-party Matthew Cucci and Wilshire Investment Group, LLC (hereinafter referred to as "CUCCI" and "WILSHIRE" move (# 003) for an order quashing the judicial subpoena issued to CUCCI and prohibiting JPMorgan Chase Bank, N., (hereinafter referred to as "JPMORGAN"), from disclosing any information sought by HARTRIDGE and/or quashing the subpoena issued by HARTRIDGE to JPMORGAN; non-party, BEST NEST REAL TV GROUP, INC. (hereinafter referred to as " BEST NEST"), moves (# 004) for an order quashing the judicial subpoena duces tecum served by HARTRIDGE, disqualifying defendant' s attorney, Samuel Glass Esq., and for costs, disbursements and reasonable attorney s fees on the motion; and nonparty Chris Karanasos and his attorneys, Sacco & Filas, LLP (hereinafter referred to as KARANASOS" and "SACCO & FILLAS"), move (# 005) for an order quashing the judicial subpoenas duces tecum served by HARTRIDGE, disqualifying defendant's attorney, Samuel Glass, Esq. and for costs, disbursements and attorney s fees on the motion. Counsel for HARTRIDGE opposes all of the motions, which are determined as follows:

3 Background This litigation arises from a real property mortgage foreclosure action initiated by ASTORIA against HARTRIDGE, the then owner of certain property located at 3749 Mill Road, Seaford, New York. Counsel for HARTRIDGE relates that a Judgment of Foreclosure and Sale was signed by the Court, on December , in the principal amount of $33,465., and the foreclosure sale was held on June 27, Plaintiff ASTORIA, allegedly assigned the mortgage, note and this foreclosure action to ARO just a few days before the foreclosure sale. Counsel states that, although the Court was filled with potential bidders on the morning of the sale, ARO was the only bidder who submitted a bid on the premises, in the nominal sum of $ , and ARO was issued a Referee Deed to the premises the same day of the foreclosure sale. Counsel points out that the end result was that HARTRIDGE' s home, appraised by the Nassau County Assessors Office to be valued at $ in January 2006, was sold by ARO to itselffor $500. and that ARO now seeks a deficiency judgment against HARTRIDGE in the sum of $48, (see Referee s Report). Counsel for HARTRIDGE states that, subsequent to the foreclosure sale, it was learned from Joseph Johns, a bidder who attended the sale and who intended to bid on the foreclosed property, that he and other bidders were approached at the sale site by CUCCI, who recommended that they not bid on the premises because there was a high senior mortgage on the premises, and that the sale was being made subject to that mortgage. Counsel states that, in fact, there was no senior mortgage on the premises and that CUCCI was acting as an agent of ARO at the sale and made false representations to potential bidders in order to make the sale uninviting so the potential bidders would refrain

4 from bidding, allowing ARO to purchase the property for a nominal price, which is exactly what occurred. It appears that a month later, ARO conveyed the premises to KARANASOS brother-in-law of an ARO member, Evangelos Pollatos, for the sum of $ order to complete the sale, KARANASOS put down $ and gave a mortgage to BEST NEST in the amount of $ Counsel for HARTRIDGE contends that this conveyance to KARANSOS and mortgage to BEST NEST were shams to establish the appearance that bonafide purchasers have rights in the subject premises. By Order to Show Cause, dated August , HARTRIDGE moved inter alia to set aside the recent foreclosure sale of the premises, and to vacate the Referee s deed to ARO, as well as the deed from ARO to KARANASOS and the mortgage to BEST NEST. He alleged that substantial irregularities at the foreclosure sale prevented competitive bidding on his home which deprived him of any surplus on the residence. By Short Form Order, dated October (Palmieri, J.), the Court determined the motion and found that "(b)ecause there are sharp issues offact upon which the decision rests, a hearing shall be held.... The Court framed the issues, as follows: At issue here is whether the sale was properly conducted and if not, whether such failure was a mere irregularity, which should not cause the sale to be vacated or of such magnitude that the sale should be set aside. Specifically at issue is what were the terms of the sale as announced by the referee to the public, whether there was any misconduct on the part of plaintiff, Aro, the real party in interest, or any persons acting on their behalf, whether there was any other misconduct by persons present which might have affected the integrity of the sale, whether the bid price was so inadequate as to shock the conscience of the Court even in the absence of misconduct or error, the status of Karanasos and Best Nest in relation to the above described transaction and what remedies should apply.

5 Counsel for HARTRIDGE states that in preparation for the hearing, all of the subpoenas issued herein seek information that is material and relevant to the issues before the Court. The subpoena served on ARO and its principal, Evangelos Pollatos, seeks documents pertaining to the formation of ARO, which would reflect whether CUCCI has a financial interest in ARO, documents pertaining to ARO' s purchase of the mortgage documents pertaining to the sale of the property and the issuance of the Referee s Deed and documents pertaining to the sale of the premises to KARANASOS. The subpoenas served on JPMORGAN, seeks bank records pertaining to CUCCI and a company he owns WILSHIRE, which are limited in scope and specifically identify the records requested. The records being subpoenaed from CUCCI seek agreements and documents concerning the premises, the financial transactions (check bank records, etc) pertaining to the alleged purchase of the assignment of the note, mortgage and this action, the financial transactions (checks, bank records, etc. ) pertaining to the sale of the premises to KARANASOS, and the notes generated at the foreclosure sale and phone records, which are limited in time from January 1, 2006, through October 1, The subpoena served on BEST NEST seeks documents pertaining to the formation of BEST NEST to determine if any of the other parties (CUCCI, POLLATOS, KARANOSOS, etc. ) have any financial interest in BEST NEST, and documents pertaining to the mortgage on the premises and the loan BEST NEST allegedly made to the alleged good faith purchaser, KARANASOS. The subpoena served on KARANASOS and the attorneys who represented him in the purchase of the residence, SACCO & FILLAS, seek documents concerning KARANASOS' purchase of the premises, what persons or entities received the proceeds of sale from the sale to KARANASOS, and what information KARANASOS had in his possession prior to

6 his receiving the deed. Counsel for HARTRIDGE states that these documents are relevant to show the inter-relationship of these parties and whether KARANASOS had knowledge of the events detailed above, which would deprive him of the good faith purchaser defense. Generally, all of the non-party movants seek to quash the subpoenas on the ground that they are a "fishing expedition, a tool to harass the movants, over broad, irrelevant oppressive, frivolous, and not likely to lead to relevant information. In particular, ARO and Pollatos state that the documents sought are proprietary and confidential and have nothing to do with the allegation that CUCCI interfered with the foreclosure sale. CUCCI claims that the bank records sought from JPMORGAN demonstrates a patently improper use of subpoena power as Mr. CUCCI's personal financial statements and banking records, and those of his company, WILSHIRE, are protected bank records, particularly in light of the fast rise of identity theft and the need to protect an individual' s private information. Also counsel for CUCCI claims that the subpoenas are facially defective in that they fail to comply with CPLR which requires that "(a) trial subpoena duces tecum shall state on its face that all papers or other items delivered to the court pursuant to such subpoena shall be accompanied by a copy of such subpoena. BEST NEST contends that the subpoena is facially defective pursuant to CPLR 92301, that service of the subpoena was improper and that a subpoena cannot be directed to a corporation and must identify who at the corporation must attend, that BEST NEST was not present at the sale and that the documents requested can be obtained from the County Clerk. KARANASOS and SACCO & FILLAS assert that the subpoenas are facially defective pursuant to CPLR 92301, that SACCO & FILLAS were not properly served as no managing or general agent of the business partnership was served and no subpoenas were mailed to either of the two (2)

7 partners at their respective homes pursuant to CPLR 9310 (b)(c) or (d), thatthe documents are protected by the attorney client privilege under CPLR and that there is no evidence to show that either KARANOSOS or his attorneys misled prospective buyers at the foreclosure sale or that KARANOSOS is anything other that a bonafide purchaser for value. With respect to those movants who seek to have defendant's attorney, Samuel Glass, Esq. disqualified, they claim that they plan to call him as a witness at the scheduled hearing and that he cannot "as a matter of law" continue to represent the defendant. In the alternative, they claim that, because Mr. Glass is also the attorney for Joseph Johns, a prospective bidder at the public foreclosure sale, there is a conflict of interest in his continued representation of defendant and Johns in the event that the foreclosure sale is set aside in that both parties wil most likely be bidding at a newly scheduled sale. In opposition to the motions, counsel for HARTRIDGE asserts that all of the subpoenas seek documents and testimony relevant to the issues framed by Justice Palmieri in the order directing a hearing. Counsel states that the standard to be applied on a motion to quash a subpoena duces tecum is whether the requested information is utterly irrelevant to any proper inquiry (Ayubo v Eastman Kodak Co. Inc 158 AD2d NYS2d 944 (2 Dept. 1990)) and contends that none of the movants have met their burden of showing that the requested records are irrelevant and the motion must be denied. (Velez v Hunts Point Mult-Service Center Inc. 29 AD3d NYS2d 5 Dept. 2006)). Moreover, counsel for HARTIRIDGE argues that CUCCI does not have standing to challenge a subpoena issued to a bank seeking the depositors records. U. S. v Miler, 425

8 US435, 96 S. Ct (1976). The New York Court of Appeals and the various Appellate Division Departments follow the precedent of U. S. v Miler and have routinely held that the depositor has no standing to contest the subpoena issued to the bank. See, Cappetta v Santucci 42 NY2d NYS2d NE2d 1172 (C. A. 1977); Norkin v Hoey 181 AD2d 248, 586 NYS2d 92 (1 Dept. 1992); People v Doe 96 AD2d 1018,467 NYS2d 45 Dept. 1983). Bank records of a customer account are the business records of the banks in which the customer can assert neither ownership nor possession, and the customer has no legitimate expectation of privacy in the content of original checks, deposit slips or other documents voluntarily conveyed to banks and exposed to their employees. Norkin v Hoey, supra. The overwhelming weight of authority holds that a bank customer has no legitimate cognizable interest nor propriety (sic) or possessory interests in the records of a third-part bank, and therefore cannot preclude their production GLGllnc. v Burgher 4 Misc 3d 1028A, 798 NYS2d 344 (Sup. Nassau Co., 2004). Counsel for HARTRIDGE maintains that the subpoenas are not defective as the absence ofthe language requiring delivery of a copy of the subpoena with the subpoenaed records is a mere irregularity which should be disregarded by the Court. CPLR 92001; Rule 2101 & CPLR Rule 2101 proves as follows: A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregard by the Court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days, after receipt thereof, he returns the paper to the party serving it with a statement of particular objections. Counsel for HARTRI DGE claims that the purpose of providing a copy of the subpoena with the records, is to aid the Court Clerk, and no prejudice has been shown.

9 Counsel for HARTRIDGE also claims that the record reflects that BEST NEST was properly served with the subpoena and that it's claim that a corporation cannot be served with a subpoena is unfounded and contrary to the law. See, Standard Fruit Steamship Co. v Waterfront Commission of New York Harbor, 43 NY2d NYS2d 732, 371 NE2d 453 (C. A. 1977). The Standard Court held that a corporation is required to produce offcers and employees who have knowledge of the transaction at issue, pursuant to a subpoena served upon the corporation. However, the Court notes that it appears that SACCO and FILLAS, a limited partnership, was not served in accordance with CPLR 931 a, which requires service upon any "managing or general agent or general partner of the firm. When and if proper service of the subpoena is effectuated, it is the Court' s view that the records requested of the law firm were not prepared for litigation, but were prepared for business purposes and are not privileged. Counsel for HARTRIDGE points out that the attorney client privilege does not apply to 1) documents disclosed to third parties; 2) documents generated by third parties; and 3) documents which are of a business rather than legal nature. Netherby Ltd. v G. V. Trademark Investments Ltd. 261 AD2d NYS2d 488 (1 Dept. 1999). Counsel for HARTRIDGE states that no grounds exist to disqualify him as defendant's attorney. He argues that he was not involved in the assignment of the mortgage, the foreclosure sale, issuance of the Referee s Deed, nor the transfer to KARANOSOS; that he is simply the attorney for the defendant, who appeared in this action subsequent to the transactions and events which are relevant to this proceeding and that there is no testimony that he can give that is necessary or relevant at the hearing. Counsel

10 states that in order to obtain disqualification, movant must demonstrate that 1) counsel' testimony is necessary to their case; and 2) that counsel' s testimony will be prejudicial to his client. Goldberger v Eisner 21 AD3d NYS2d 778 (2 Dept. 2005); Daniel Gale Associates, Inc. v George 8 AD3d 608, 779 NYS2d 573 (2 Dept. 2004). Indeed 22 NYCRR provides that a lawyer may act as an advocate and also testify if a) the testimony will relate solely to an uncontested issue; b) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; c) the testimony wil relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer s firm to the client; and d) disqualification as an advocate will work a substantial hardship on the client. Counsel argues that a party s entitlement to be represented in ongoing litigation by counsel of his choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. Zutler v Drivershield Corp. 15 AD3d 397, 790 NYS2d 485 Dept. 2005). Counsel points out that HARTRIDGE' s Order to Show Cause was filed in August 2006, and the hearing, originally scheduled for December , has already been adjourned. It is counsel' s position that movants' motion to disqualify counsel, coming close to six (6) months after the initiating Order to Show Cause, is barred by laches and should be rejected by the Court, as it is clearly an attempt to discomfort HARTRIDGE, who would be required to retain counsel at this late stage ofthe proceedings, unfamiliar with the case, at a significant financial hardship. See, Talvy v American Red Cross in Greater New York 205 AD2d 143, 618 NYS2d 25 Dept. 1994). It is the Court' s judgment that movants have failed to demonstrate that counsel for defendant's testimony is necessary

11 to their case orthat said testimony will be prejudicial to his client. Rodriguez v Ogden Avenue Realty Corp. 304 AD2d 400, 758 NYS2d 43 (1 sl Dept. 2003); see also Talvy v American Red Cross in Greater New York, supra. Movants have provided only speculation in support of their position, which is insufficient to disqualify counsel. Goldberger v Eisner, supra. Conclusion After a careful reading of the submissions herein, the Court credits the analysis of the defendant HARTRIDGE, except as above noted with respect to service of the subpoena on SACCO and FILLAS, and finds that the scope of the subpoenas are valid and reasonably calculated to lead to the discovery of relevant evidence. It is therefore ORDERED that the motions by ARO, Pollatos, CUCCI, WILSHIRE, BEST NEST and KARANASOS to quash the subpoenas served upon them are denied; and it is further ORDERED that the motion by SACCO & FILLAS to quash the subpoena is granted based upon improper service on the limited partnership; and it is further ORDERED that ARO, Pollatos, CUCCI, WILSHIRE, BEST NEST and KARANASOS are directed to comply with the subpoenas and produce the documents demanded and forward same to the Record Room, Supreme Court- Nassau County, 100 Supreme Court Drive, Mineola, New York, The hearing is presently scheduled for April 12, 2007 in CCP and should proceed without delay; and it is further ORDERED that the motions to disqualify defendant's counsel, Samuel Glass, Esq. are denied.

12 The Court has considered the remaining contentions of movants herein and finds them to be without merit. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: March 30, 2007 WILLIAM R. LaMARCA, J. ENTfiED APR OOU fwq et.ee

13 TO: Adam E. Milkolay, Esq. Attorney for Plaintiff 900 Merchants Concourse, Suite 208 Westbury, NY Howard B. Arber, Esq. Attorney for non-party movant Aro Capital, LLC 64 Hilton Avenue Hempstead, NY Samuel!. Glass, Esq. Attorney for Defendant James J. Hartridge 62 Nichols Court, Suite 302 Hempstead, NY Bainton McCarthy LLC Attorney for non-party movant Matthew Cucci and Wilshire Investment Group LLC 26 Broadway New York, NY Lisa Firshing, Esq. Attorney for non-party movant Best Nest Realty Inc Avenue, Suite 601 Whitestone, NY Sacco & Filas, LLP Attorneys for non-party movant Chris Karanasos Avenue, Suite 506 Whitestone, NY Michael C. Wolkow, Esq. Referee 3167 Merrick Avenue Oceanside, NY astoriafederal-hartidge,#02,#03,#04 #05/subpoenas