| Nimkoff v Central Park Plaza Assoc., LLC |
| 2014 NY Slip Op 08410 [123 AD3d 679] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| Barbara R. Nimkoff, as Executrix of Martin B.Nimkoff, Deceased, Appellant, v Central Park Plaza Associates, LLC, et al.,Respondents, et al., Defendants. |
The Nimkoff Firm, Syosset, N.Y. (Ronald A. Nimkoff of counsel), forappellant.
Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Anthony W.Cummings and Donna-Marie Korth of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals from so much of an order of the Supreme Court, Nassau County (Bucaria, J.),dated January 30, 2013, as granted the motion of the defendants Central Park PlazaAssociates, LLC, Donald Monti, Anna Assante, Mario Fracassa, Frederick Kaplan,William Caccese, Jeffrey Goodman, Chanchal Saha, Ronald C. Richman, and ConcordeManagement Services, Inc., for a protective order pursuant to CPLR 3103 (a) to theextent of directing the plaintiff to serve interrogatories on the named individualdefendants instead of conducting their depositions.
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, with costs, and that branch of the respondents' motion which wasfor a protective order pursuant to CPLR 3103 (a) is denied.
In April 2004, Martin B. Nimkoff (hereinafter the decedent), a former member of thedefendant Central Park Plaza Associates, LLC (hereinafter Central Park), died.Thereafter, Central Park was dissolved pursuant to the terms of its operating agreement,and in April 2008, its sole asset, certain real property in Plainview, was sold. In March2009, Barbara R. Nimkoff, as executrix of the decedent's estate (hereinafter the plaintiff),commenced this action, inter alia, to recover damages for breach of contract. Thecomplaint alleged that the decedent's estate did not receive its proportional share of thesale proceeds in accordance with the terms of the operating agreement.
The defendants Central Park, Donald Monti, Anna Assante, Mario Fracassa,Frederick Kaplan, William Caccese, Jeffrey Goodman, Chanchal Saha, Ronald C.Richman, and Concorde Management Services, Inc. (hereinafter collectively thedefendants), subsequently moved for a protective order pursuant to CPLR 3103 (a). Thedefendants argued that it was unnecessary to conduct depositions of the named individualdefendants, who were minority shareholders and former members of Central Park, inview of a deposition which had already been conducted of the defendant Donald Monti,the managing member of Central Park. The Supreme Court, inter alia, granted thedefendants' motion to the extent of directing the plaintiff to serve interrogatories on theseother individual defendants instead of conducting depositions.
[*2] CPLR 3101 (a) provides that "[t]here shall be fulldisclosure of all matter material and necessary in the prosecution or defense of an action,regardless of the burden of proof." A party is entitled to "choose both the discoverydevices it wishes to use and the order in which to use them" (Edwards-Pitt v Doe,294 AD2d 395, 396 [2002]; seeSamide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2005]; Falkv Inzinna, 299 AD2d 120, 125 [2002]). However, a court may issue a protectiveorder " 'denying, limiting, conditioning or regulating the use of any disclosuredevice' to 'prevent unreasonable annoyance, expense, embarrassment, disadvantage, orother 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 Vaccaro v Weinstein, 117 AD3d 1033, 1034[2014]).
Here, the defendants failed to demonstrate that taking depositions of individualdefendants would result in "unreasonable annoyance, expense, embarrassment,disadvantage, or other prejudice to any person or the courts" (CPLR 3103 [a]).Accordingly, the Supreme Court's determination that the plaintiff was limited to servinginterrogatories on those individual defendants, instead of conducting depositions, was animprovident exercise of its discretion (see generally Carberry v Bonilla, 65 AD2d613 [1978]; Cooper v Met Merchandising, 54 AD2d 859 [1976]).
The parties' remaining contentions are either without merit or not properly before thisCourt. Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.