| Gould v Decolator |
| 2015 NY Slip Op 06416 [131 AD3d 445] |
| August 5, 2015 |
| Appellate Division, Second Department |
[*1]
| David S. Gould et al., Appellants, v JosephDecolator et al., Respondents. |
David S. Gould, New York, N.Y., and David S. Gould, P.C., New York, N.Y.,appellants pro se (one brief filed).
Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman and Janice J. DiGennaro ofcounsel), for respondents.
In an action, inter alia, to recover legal fees, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), datedJuly 31, 2013, as granted that branch of the defendants' motion which was pursuant toCPLR 3124 to compel them to provide further responses to the defendants' notices fordiscovery and inspection and interrogatories to the extent of directing them to amplifyresponses to certain items, granted that branch of their cross motion which was pursuantto CPLR 3124 to compel the defendants to provide further responses to their notice fordiscovery and inspection only to the extent of directing that the defendants serveadditional responses to item 4 and otherwise denied that branch of their cross motion,and granted that branch of the defendants' cross motion which was pursuant to CPLR3103 to preclude them from permitting certain nonparties, including their disqualifiedattorney, from attending the depositions in the matter.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof denying that branch of the plaintiffs' cross motion whichwas to compel the defendants to serve a further response to item 5 of the plaintiffs' noticefor discovery and inspection, and substituting therefor a provision granting that branch ofthe cross motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
On December 8, 2011, the plaintiffs commenced this action against the defendantDecolator, Cohen & DiPrisco, LLP (hereinafter DCD), and its partners, JosephDecolator, Neil Cohen, and Dominic DiPrisco. The complaint alleged, inter alia, that theplaintiff David S. Gould (hereinafter Gould) represented DCD in litigation against thelaw firms of Lysaght, Lysaght and Kramer (hereinafter LLK) and Trager, Cronin andByczek (hereinafter TCB) from 1998 to 2007. The plaintiffs further alleged that Gouldwas not paid for any of the work he performed in connection with either the LLKlitigation or the TCB litigation between 2002 and 2007. In an order dated September 18,2012, the Supreme Court directed the dismissal of the complaint, save for the cause ofaction sounding in quantum meruit. Based on the applicable statute of limitations, thecourt limited the plaintiffs' recovery under that cause of action to services that theyrendered to the defendants after December 8, 2005, or six years prior to the date that theaction was commenced. In the course of discovery, the plaintiff demanded that thedefendants produce all documents in their [*2]possessionthat were relevant to the dispute, regardless of when those documents were dated orgenerated. The defendants objected to the demand, in part, asserting, among other things,that certain documents sought by the plaintiffs were dated or generated outside of theperiod of recovery articulated in the order. The defendants also served a demand uponthe plaintiffs to produce certain documents. In response, the plaintiffs objected, in part, tothat demand. The defendants moved, inter alia, to compel the plaintiffs to completelyrespond to the defendants' demands, and the plaintiffs cross-moved to compel thedefendants to completely respond to the plaintiffs' demands.
Generally, "[t]here shall be full disclosure of all matter material and necessary in theprosecution or defense of an action, regardless of the burden of proof" (CPLR 3101 [a])."The words 'material and necessary' as used in section 3101 must 'be interpreted liberallyto require disclosure, upon request, of any facts bearing on the controversy which willassist preparation for trial by sharpening the issues and reducing delay andprolixity' " (Matter ofKapon v Koch, 23 NY3d 32, 38 [2014], quoting Allen v Crowell-CollierPubl. Co., 21 NY2d 403, 406 [1968]). Discovery is not unlimited, however, and thesupervision of discovery is generally left to the broad discretion of the trial court (see Geffner v Mercy Med. Ctr.,83 AD3d 998 [2011]; Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2010])."The supervision of disclosure and the setting of reasonable terms and conditionstherefor rests within the sound discretion of the trial court and, absent an improvidentexercise of that discretion, its determination will not be disturbed" (Daniels v City of New York,117 AD3d 981, 981 [2014] [internal quotation marks and citation omitted]; see Montalvo v CVS Pharm.,Inc., 102 AD3d 842, 843 [2013]; Clark v Halmar Equities, Inc., 88 AD3d 940, 941 [2011];Gilman & Ciocia, Inc. vWalsh, 45 AD3d 531 [2007]).
The Supreme Court providently exercised its discretion in granting that branch of thedefendants' motion which was pursuant to CPLR 3124 to compel the plaintiffs to providefurther responses to the defendants' notices for discovery and inspection andinterrogatories to the extent of directing the plaintiffs to serve concise responses tocertain requested items (see Clark v Halmar Equities, Inc., 88 AD3d at 941). Thecourt also providently exercised its discretion in denying that branch of the plaintiffs'cross motion which was pursuant to CPLR 3124 to compel the defendants to providefurther responses to the plaintiffs' demand for discovery and inspection with respect toitems 6-9, 12, 23, and 24 (seeGilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]).
However, the Supreme Court improvidently exercised its discretion in denying thatbranch of the plaintiffs' cross motion which was referable to item 5, which demandedthat the defendants provide all material relating to the LLK and TCB litigations, as thatevidence was relevant to the plaintiffs' cause of action sounding in quantum meruit (see Staten v City of New York,90 AD3d 893 [2011]). Quantum meruit compensation is not limited to a calculationbased on the number of hours worked multiplied by a reasonable hourly rate. Rather, infixing an award of legal fees based on quantum meruit, the court may consider" 'evidence of the time and skill required in that case, the complexity of thematter, the attorney's experience, ability, and reputation, the client's benefit from theservices, and the fee usually charged by other attorneys for similar services' " (Padilla v Sansivieri, 31 AD3d64, 67 [2006], quoting Rosenzweig v Gomez, 250 AD2d 664, 664 [1998]).Documents relating to the LLK and TCB litigations predating December 2005 andpostdating December 2011 are material, and might lead to admissible evidence withregard to the plaintiffs' quantum meruit cause of action. Accordingly, even if therecovery sought in connection that cause of action were limited to legal services thatwere rendered by the plaintiffs within the applicable limitations period, the courtimprovidently denied that branch of the plaintiffs' cross motion which was to compel thedefendants to further respond to item 5, since the denial, in effect, improperly allowedthe defendants to limit their production of documents only to those generated or datedwithin that time period.
The Supreme Court providently exercised its discretion in granting that branch of thedefendants' cross motion which was pursuant to CPLR 3103 to preclude the plaintiffsfrom permitting certain nonparties, including their disqualified attorney, from attendingdepositions in the matter (see CPLR 3103 [a]; see also Scollo v GoodSamaritan Hosp., 175 AD2d 278 [1991]; Matter of Westchester RocklandNewspapers v Marbach, 66 AD2d 335 [1979]).
We decline the plaintiffs' request that the matter be assigned to another justice (see [*3]Fecteau v Fecteau, 97 AD3d 999, 1002 [2012]; see also Oxman v Mountain LakeCamp Resort Inc., 105 AD3d 653, 654 [2013]). Chambers, J.P., Hall, Cohen andMaltese, JJ., concur.