Claimant's motion to compel discovery was denied as moot.
|Claimant(s):||RUDELETAT LLC, d/b/a 41 STATE, AND ALBANY MANAGEMENT, INC.|
|Claimant short name:||RUDELETAT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, LLP
By: Jason L. Shaw, Esquire
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||March 30, 2010|
|See also (multicaptioned case)|
Claimants move for an Order pursuant to CPLR 3124 compelling the defendant to disclose all documents requested in a Document Production Demand dated July 1, 2009, which the defendant initially asserted are privileged and exempt from disclosure.
Claimants seek damages for breach of a lease agreement for the premises located at 41 State Street, Albany, New York. In addition to the annual rent due under the lease, claimants allege the defendant was obligated to pay as additional rent "any annual increases in the 'Operating Expenses' attributable to the lease premises" (Exhibit A, claim, ¶ 10). The alleged term of the lease was from December 1, 1997 through November 30, 2007 and claimants seek sums allegedly owed as additional rent for the years 2001 through 2005 and 2007.
On July 1, 2009 claimants served defendant with a Document Production Demand (Exhibit C) for the following documents.
"[1. - 4.] All documents that refer, reflect, or relate to the State of New York's Final Determination of operating expense escalations due under Lease 9685 for the year[s] [2001 through 2004] as set forth in the Schedule A accompanying the June 26, 2007, letter of OGS employee Daniel Derenches to plaintiffs.
5. All documents concerning the State of New York's review of operating expense escalations under Lease 9685 for the years 2005 and 2006.
6. All documents concerning communications among or between employees of the State of New York concerning the calculation of operating expense escalations under Lease 9685.
7. Any manuals, memoranda, handbooks, or other documents used by employees of the State of New York from 1997 through 2007 which contain guidelines, standards, policies, or practices concerning the calculation of operating expense escalations under State of New York leases."
Following a preliminary conference with the Court on August 25, 2009 defense counsel represented that a response to the aforementioned document demand would be served by September 22, 2009. Defendant provided a response dated September 17, 2009 (Exhibit D) in which it objected to the production of various documents on the ground that they are protected from disclosure by the deliberative process privilege. A privilege log was thereafter provided on December 2, 2009 (Exhibit H) and the instant motion was filed and served on January 4, 2010.
As claimants' counsel points out, CPLR 3122 requires that a party who objects to disclosure state with "reasonable particularity" the reasons for each objection within twenty days of service of a notice of discovery. The defendant's objection to claimants' notice of discovery was raised for the first time in its discovery response, which was served more than 20 days after service of the demand. "The defendants' failure to challenge the [claimant's] notice of discovery within the time prescribed foreclosed inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper" (Fausto v City of New York, 17 AD3d 520, 522 ; see also, Coville v Ryder Truck Rental, Inc., 30 AD3d 744 ; McMahon v Aviette Agency, Inc., 301 AD2d 820 ). A document demand may be palpably improper where it seeks documents that are
either irrelevant or overly broad and burdensome (see Jefferson v State of New York, 60 AD3d 1215 ).
With regard to claimants' demands numbered "1" through "4" they are overly broad to the extent they seek "[a]ll documents that refer, reflect, or relate" to the defendant's determination of operating expense escalations for the years in issue (see Sands v News Am. Publ. 161 AD2d 30, 38 ). The Court likewise views claimants' demands numbered "5", "6" and "7"as palpably improper to the extent they seek documents relating to operating expenses for years not in issue. Demand numbered "6" is also improper to the extent it seeks "[a]ll documents concerning communications" among State employees concerning the operating expense escalations. Nevertheless, the Court's file in this matter reflects that shortly after the instant motion was filed, defendant supplemented its prior response to claimants' discovery demand on January 5, 2010 and January 22, 2010, abandoning its claim of privilege and providing the documents sought. Inasmuch as defendant has responded to the claimants' demands, claimants' motion is denied as moot.
March 30, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of Motion dated January 4, 2010
2. Affirmation of Jason L. Shaw dated January 4, 2010, with Exhibits "A" - "H";
3. Memorandum of law dated January 4, 2010.
4. Defendant's Supplemental Response To Claimant's Document Production Demand dated January 5, 2010 with Exhibit "A";
5. Defendant's Supplemental Response To Claimant's Document Production Demand dated January 22, 2010 with Exhibit "A"