| Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc. |
| 2008 NY Slip Op 07112 [54 AD3d 930] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Seattle Pacific Industries, Inc., Respondent, v GoldenValley Realty Associates et al., Appellants. |
—[*1] Schnaufer & Metis, LLP, Hartsdale, N.Y. (John C. Schnaufer of counsel), forrespondent.
In an action to recover the proceeds of certain loans, with interest, the defendants appeal (1),as limited by their brief, from so much of an order of the Supreme Court, Nassau County(LaMarca, J.), dated August 14, 2006, as denied their cross motion to compel discovery, (2), aslimited by their brief, from so much of an order of the same court dated December 22, 2006, asdenied their motion, denominated as one for leave to renew and reargue, but which was, inactuality, one for leave to reargue, and (3) from an order of the same court dated June 8, 2007,which granted the plaintiff's motion for summary judgment on the issue of liability and deniedtheir cross motion for partial summary judgment.
Ordered that the appeal from the order dated December 22, 2006 is dismissed, as no appeallies from an order denying reargument; and it is further,
Ordered that the order dated August 14, 2006 is reversed insofar as appealed from, on thelaw and as a matter of discretion, and the defendants' cross motion to compel discovery isgranted; and it is further,[*2]
Ordered that the order dated June 8, 2007 is modified, onthe law, by deleting the provision thereof granting the plaintiff's motion for summary judgmenton the issue of liability, and substituting therefor a provision denying the motion; as so modified,the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court erred in granting the plaintiff's motion for summary judgment on theissue of liability on the basis of its factual finding "that the parties intended that the [subject]loans be repaid at the first opportunity," where "the triggering event was the sale of the remainingparcel of the New Jersey property." Instead, since the advances at issue were made without anyspecified time of repayment, they were payable on demand (see UCC 3-108; Lynford v Williams, 34 AD3d761, 762 [2006]; Cognetta vValencia Devs., Inc., 8 AD3d 318, 319 [2004]; Farhadi, Inc. v Anavian, 58AD2d 546 [1977]). Accordingly, pursuant to CPLR 213 (2), the plaintiff had six years withinwhich to commence an action to recover on each of its and its predecessor-in-interest's datelessadvances to the defendant Golden Valley Realty Associates (hereinafter Golden Valley), whichaccrued on the dates of their respective executions (see Lynford v Williams, 34 AD3d 761, 762 [2006]).
Although the claims regarding four of the advances, totaling $37,877.70, were nottime-barred, since they were made within six years of the commencement of the action, issues offact exist as to the extent of the defendants' liability for those advances. Additionally, whileGeneral Obligations Law § 17-101 effectively revives a time-barred claim when the debtorhas signed a writing validly acknowledging the debt (see Erdheim v Gelfman, 303 AD2d714, 715 [2003]), "[w]hether a purported acknowledgment is sufficient to restart the running of aperiod of limitations depends on the circumstances of the individual case" (Cognetta v Valencia Devs., Inc., 8AD3d 318, 319-320 [2004]; seeFade v Pugliani/Fade, 8 AD3d 612, 613 [2004]). Here, the 1998 Golden Valley taxreturn and the 1999 Golden Valley financial statement were insufficient, since it cannot bedetermined from the record whether they "constituted an acknowledgment of the debt sufficientto revive or toll the statute of limitations" (Cognetta v Valencia Devs., Inc., 8 AD3d 318, 320 [2004]; seeEstate of Vengroski v Garden Inn, 114 AD2d 927, 928-929 [1985]). Therefore, there is anissue of fact as to whether the action, in part, is time-barred.
Moreover, the Supreme Court improvidently exercised its discretion in denying thosebranches of the defendants' cross motion which were to compel the plaintiff to produce additionalwitnesses for depositions and to compel the plaintiff to produce certain documentary evidence.
"A corporate entity has the right to designate, in the first instance, the employee who shall beexamined" (Sladowski-Casolaro vWorld Championship Wrestling, Inc., 47 AD3d 803, 803 [2008]; see Barone v GreatAtl. & Pac. Tea Co., 260 AD2d 417 [1999]; Mercado v Alexander, 227 AD2d 391[1996]; Defina v Brooklyn Union Gas Co., 217 AD2d 681, 682 [1995]; Tower vChemical Bank, 140 AD2d 514, 515 [1988]). In order to show that an additional depositionis warranted, the movant must demonstrate that (1) the representatives already deposed hadinsufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihoodthat the persons sought for depositions possess information which is material and necessary tothe prosecution of the case (seeSladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803, 804 [2008];Barone v Great Atl. & Pac. Tea Co., 260 AD2d 417, 418 [1999]; Saxe v City of NewYork, 250 AD2d 751 [1998]; Carter v New York City Bd. of Educ., 225 AD2d 512[1996]; Zollner v City of New York, 204 AD2d 626, 627 [1994]). The burden is upon theexamining party to make the requisite showing that the representative of the corporation alreadydeposed did not possess [*3]sufficient knowledge of the relevantfacts or was otherwise inadequate (seeSladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803 [2008]).Since the defendants here met their burden in this regard, the court should have granted thatbranch of their cross motion which was to compel depositions of the principal owners of theplaintiff.
Pursuant to CPLR 3120 (2), a party seeking discovery from another party, inter alia, "shallset forth the items to be inspected, copied, tested or photographed by individual item or bycategory, and shall describe each item and category with reasonable particularity." Here, thedefendants' use of the word "all" in their deposition notice to describe the documents they soughtfrom the plaintiff has generally been found to be an improper request because of its lack ofspecificity (see Benzenberg v Telecom Plus of Upstate N.Y., 119 AD2d 717 [1986]).However, the plaintiff did not object to the request (see Fausto v City of New York, 17 AD3d 520, 522 [2005]), andvarious documents were produced at the deposition of the plaintiff's representative. Moreover,finding that a discovery request is lacking in specificity merely because it starts with the word"any" results in an exaltation of form over substance and results in "frustrat[ing] the liberaldiscovery provisions which CPLR article 31 was designed to accomplish" (Mestman v AriensCo., 135 AD2d 516, 517 [1987] [internal quotation marks omitted]). Such an apparent lackof specificity should be overlooked "where the notice is directed at limited and specific subjectmatter" (Breslauer v Dan, 150 AD2d 324, 325 [1989]). Here, the documents which thedefendants seek are relevant to the case and were clearly identified in their cross motion. Underthe circumstances, the Supreme Court erred in denying that branch of the defendants' motionwhich was to compel this disclosure (cf. Breslauer v Dan, 150 AD2d 324, 325 [1989]).Rivera, J.P., Covello, Angiolillo and McCarthy, JJ., concur.