| Jet One Group, Inc. v Halcyon Jet Holdings, Inc. |
| 2013 NY Slip Op 07938 [111 AD3d 890] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Jet One Group, Inc., Respondent, v Halcyon JetHoldings, Inc., et al., Appellants, et al., Defendants. |
—[*1] Steven G. Legum, Mineola, N.Y. (Gina Biasi of counsel), for respondent.
In an action, inter alia, to recover damages for fraud, tortious interference withcontract, and a violation of General Business Law § 349, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County(Brandveen, J.), entered August 20, 2012, as denied those branches of their motionwhich were pursuant to CPLR 3103 (a) for a protective order limiting the scope ofdiscovery to 54 identified customers and 17 identified brokers and striking the plaintiff'snotice to admit.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1)by deleting the provision thereof denying that branch of the defendants' motion whichwas for a protective order striking document request number five from the plaintiff'sdemand for discovery and inspection dated February 10, 2012, and substituting therefor aprovision granting that branch of the motion, and (2) by deleting the provision thereofdenying that branch of the defendants' motion which was for a protective order strikingthe plaintiff's notice to admit, and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter materialand necessary in the prosecution or defense of an action, regardless of the burden ofproof." However, "unlimited disclosure is not mandated, and the rules provide that thecourt may issue a protective order 'denying, limiting, conditioning or regulating the useof any disclosure device' to 'prevent unreasonable annoyance, expense, embarrassment,disadvantage, or other prejudice to any person or the courts' " (County of Suffolk v Long Is.Power Auth., 100 AD3d 944, 946 [2012], quoting CPLR 3103 [a]; see Accent Collections, Inc. vCappelli Enters., Inc., 84 AD3d 1283 [2011]). "The supervision of disclosureand the setting of reasonable terms and conditions therefor rests within the sounddiscretion of the trial court and, absent an improvident exercise of that discretion, itsdetermination will not be disturbed" (Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843 [2013][internal quotation marks omitted]; see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]).
In the instant action, among other things, to recover damages for fraud, tortious [*2]interference with contract, and a violation of GeneralBusiness Law § 349, the plaintiff alleged that the defendants Halcyon JetHoldings, Inc., and Halcyon Jets, Inc. (hereinafter together the Halcyon defendants),improperly acquired all of the plaintiff's brokers and customers by fraudulent anddeceptive means during a failed merger of the plaintiff and the Halcyon defendants. Theplaintiff served a demand for discovery and inspection which sought several categoriesof items, including documents regarding all of the Halcyon defendants' customers,brokers, revenues, and negotiations with other businesses concerning mergers and/oracquisitions during a period encompassing 2007 through 2011. In a motion for aprotective order, the defendants sought, among other things, to limit the plaintiff'sdiscovery to documents concerning 54 specific customers and 17 specific brokers.
The Supreme Court providently exercised its discretion in rejecting the defendants'contention that discovery should be limited to the specified customers and brokers, sincethat would have improperly limited the plaintiff's discovery to only one of its severalcauses of action. Most of the plaintiff's demands were proper in that the documentsrequested were "material and necessary" in the prosecution of the action (CPLR 3101[a]). However, request number five in the plaintiff's demand for discovery andinspection, which sought "all books and records" of the Halcyon defendants for the years2007 through 2011, was overbroad, in that it included books and records not material orrelevant to the issues in this action (see Allen v Crowell-Collier Publ. Co., 21NY2d 403, 406 [1968]; Francisv Securitas Sec. Servs. USA, Inc./Burns Intl. Sec. Servs. Corp., 102 AD3d 739,740 [2013]; Elie v City of NewYork, 92 AD3d 716, 718 [2012]). Accordingly, the Supreme Court should havegranted that branch of the defendants' motion which was for a protective order strikingrequest number five in the plaintiff's demand.
CPLR 3123 provides, in relevant part, that "a party may serve upon any other party awritten request for admission by the latter . . . of the truth of any matters offact set forth in the request, as to which the party requesting the admission reasonablybelieves there can be no substantial dispute at the trial and which are within theknowledge of such other party or can be ascertained by him upon reasonable inquiry"(CPLR 3123 [a]). "The purpose of a notice to admit is only to eliminate from the issuesin litigation matters which will not be in dispute at trial. It is not intended to coverultimate conclusions, which can only be made after a full and complete trial" (Ramcharran v New York AirportServs., LLC, 108 AD3d 610, 610 [2013] [internal quotation marks omitted]). Anotice to admit is not to be used as a "substitute for existing discovery devices"(Singh v G & A Mounting & Die Cutting, 292 AD2d 516, 516 [2002] [internalquotation marks omitted]; see Ramcharran v New York Airport Servs., LLC, 108AD3d at 611).
Here, the admissions sought by the plaintiff in the notice to admit improperlyincluded matters in dispute which went to the heart of the controversy (see Priceless Custom Homes, Inc. vO'Neill, 104 AD3d 664, 664-665 [2013]; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770,772 [2011]; Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 [2000]).Moreover, the information sought by the plaintiff in the notice to admit may be obtainedthrough document discovery. As the plaintiff conceded, the notice to admit wasprompted by the defendants' refusal to respond to other discovery requests, and mighthave been withdrawn had the defendants complied with the plaintiff's demand fordiscovery and inspection. Accordingly, the Supreme Court should have granted thatbranch of the defendants' motion which was for a protective order striking the plaintiff'snotice to admit (see Ramcharran v New York Airport Servs., LLC, 108 AD3d at611). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.