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FILED: KINGS COUNTY CLERK 04/12/2024 10:39 AM INDEX NO. 505356/2023
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2024
SCHWARTZ LAW PLLC
150 Broadway, Suite 701
New York, NY 10038
Tel: 347-460-5379
Cell: 773-808-8972
Email: allen@allenschwartzlaw.com
VIA NYSCEF April 12, 2024
Justice Reginald A. Boddie
Kings County Supreme Court
Commercial Division
360 Adams Street
Brooklyn, New York 11201
Re: Kliger v. Fairmont Insurance Brokers LLC, Index No. 505356/2023
We write on behalf of plaintiff Mordechai Kliger (“Kliger”) and co-counsel, in advance of
the compliance conference scheduled for April 16, 2024, and to request a pre-motion conference
in anticipation of our motion pursuant to CPLR 3103(a), or in the alterative pursuant to CPLR
2304, seeking to quash a series of non-party subpoenas issued by defendant Fairmont Insurance
Brokers, LLC (“Fairmont”). Specifically, on March 25, 2024, Fairmont served notices of
subpoenas directed to: (1) AJH Management Limited Liability Company (“AJH”); (2) Bayrock
Insurance Agency (“Bayrock”); (3) The Fidella Agency Limited Liability Company (“Fidella”);
(4) Relation Insurance Services, Inc.; (5) Ryan Specialty, LLC (“Ryan”); and (6) Rushmore
Management, LLC (“Rushmore”)(together the “Non-Party Subpoenas”). The Non-Party
Subpoenas are attached to this letter as Exhibit A.
CPLR 3103(a) provides that “any party or . . . any person from whom or about whom
discovery is sought, [may] make [a motion for] a protective order denying, limiting, conditioning
or regulating the use of any disclosure device.” Id. Such a protective order should “be designed
to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to
any person or the courts.” Id. A party such as Mr. Kliger has standing under CPLR 3103(a) to
move for a protective order to bar non-party subpoenas. Hyatt v. State of California Franchise
Tax Bd., 105 A.D.3d 186, 195 (2d Dep’t 2013) (“[A]s a party to the underlying tax proceeding,
Hyatt has standing to seek a protective order” barring the non-party subpoenas) (citing CPLR
3103(a)).
“A party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the
supervision of discovery is generally left to the trial court’s broad discretion.” Geffner v. Mercy
Med. Ctr., 83 A.D.3d 998, 998 (2d Dep’t 2011) (citations omitted). This “broad authority to
supervise discovery includes the discretion to direct the priority in which the parties may use
disclosure devices . . .” Id. (citations omitted). It also includes the discretion to issue a protective
order “based on defendant’s issuance of harassing and unnecessary subpoenas.” Schorr v.
Schorr, 113 A.D.3d 490, 491 (1st Dep’t 2014). The Court may also use CPLR 3103(a) to issue a
protective order quashing discovery that is otherwise “palpably improper,” such as where it is
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“overbroad, burdensome, fails to specify with reasonable particularity many of the documents
Lombardi v. Lombardi 190 A.D. 3d 964, 966 (2d Dep’t 2021) (citations omitted). And “[w]here
the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather
than to prune it.” Id.
The grounds for quashing the Non-Party Subpoenas fall into at least three (3) categories:
(a) The Subpoenas are Extremely Overbroad, Burdensome, and Harassing
The Non-Party Subpoenas are designed to unduly burden, harass, annoy, embarrass, and
disadvantage Mr. Kliger and clients. The facially apparent intent of these harassing subpoenas is
to poison Mr. Kliger’s relationship with clients under a pretense of legitimate discovery.
Specifically, the Non-Party Subpoenas call for the production – through Mr. Kliger’s colleagues
and competitors in the insurance business – of literally every conceivable document and
communication – which is palpably improper and far beyond discovery relevant and material to
facts at issue in a pending judicial proceeding-- regarding certain insurance clients of Fairmont:
All insurance policies, insurance related agreements, and insurance related
correspondence, including, but not limited to, correspondence was between
carriers, agencies, or consultants, since February 14, 2023 concerning or relating to
any of the following entities: …
A more overbroad formulation of a document request is hard to imagine. Moreover, the Subpoenas
identify dozens and dozens of insureds for each target of the Subpoenas: AJH – 58 clients;
Bayrock - 127 clients; Fidella – 57 clients; Relation – 25 clients; Ryan – 16 clients; and Rushmore
– 13 clients. Imposing such overbroad discovery on non-parties, especially before Kliger’s
document production is complete, is palpably improper. Subpoenas duces tecum “may not be used
for purposes of general discovery or to ascertain the existence of evidence. Rather the purpose of
a subpoena duces tecum is to compel the production of specific documents that are relevant and
material to facts at issue in a pending judicial proceeding.” Fugazy v. Fugazy, 210 A.D.3d 653,
657 (2d Dep’t 2022) (internal citations and quotations omitted).
(b) Third-Party Discovery Should Follow Kliger’s Document Production
The Non-Party Subpoenas should also be quashed because document production from non-
party discovery should abide Kliger’s document production – which is not yet due – and which
may moot the need to burden the non-parties.
(c) The Non-Party Subpoenas to AJH, Fidella, and Rushmore Are Defective
Because They Contain Conflicting Dates, and Omit Dates, For Production
The AJH, Fidella, and Rushmore Non-Party Subpoenas each call for: (i) production of
documents within twenty (20) days of service of the Non-Party Subpoena; but (ii) contradict
that time frame by advising that “the Subpoenaed evidence shall not be produced or released
until the date specified herein for the taking of the deposition”; and (iii) further confuse the
issue by failing to specify any deposition date. Accordingly, AJH, Fidella, and Rushmore,
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cannot comply with these Non-Party Subpoenas in their current form and they are facially
defective.
Kliger attempted to meet and confer with Fairmont in the hope that it might withdraw or
defer the Non-Party Subpoenas, but no agreement could be reached. Accordingly, Kliger seeks
permission to file a motion for a protective order to quash or otherwise limit the Non-Party
Subpoenas, and for the costs incurred in being forced to file this motion.
Sincerely,
____/s/______________________
Allen Schwartz, Esq.
cc: counsel of record via NYSCEF
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FILED: KINGS COUNTY CLERK 04/12/2024 10:39 AM INDEX NO. 505356/2023 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2024 SCHWARTZ LAW PLLC 150 Broadway, Suite 701 New York, NY 10038 Tel: 347-460-5379 Cell: 773-808-8972 Email: allen@allenschwartzlaw.com VIA NYSCEF April 12, 2024 Justice Reginald A. Boddie Kings County Supreme Court Commercial Division 360 Adams Street Brooklyn, New York 11201 Re: Kliger v. Fairmont Insurance Brokers LLC, Index No. 505356/2023 We write on behalf of plaintiff Mordechai Kliger (“Kliger”) and co-counsel, in advance of the compliance conference scheduled for April 16, 2024, and to request a pre-motion conference in anticipation of our motion pursuant to CPLR 3103(a), or in the alterative pursuant to CPLR 2304, seeking to quash a series of non-party subpoenas issued by defendant Fairmont Insurance Brokers, LLC (“Fairmont”). Specifically, on March 25, 2024, Fairmont served notices of subpoenas directed to: (1) AJH Management Limited Liability Company (“AJH”); (2) Bayrock Insurance Agency (“Bayrock”); (3) The Fidella Agency Limited Liability Company (“Fidella”); (4) Relation Insurance Services, Inc.; (5) Ryan Specialty, LLC (“Ryan”); and (6) Rushmore Management, LLC (“Rushmore”)(together the “Non-Party Subpoenas”). The Non-Party Subpoenas are attached to this letter as Exhibit A. CPLR 3103(a) provides that “any party or . . . any person from whom or about whom discovery is sought, [may] make [a motion for] a protective order denying, limiting, conditioning or regulating the use of any disclosure device.” Id. Such a protective order should “be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Id. A party such as Mr. Kliger has standing under CPLR 3103(a) to move for a protective order to bar non-party subpoenas. Hyatt v. State of California Franchise Tax Bd., 105 A.D.3d 186, 195 (2d Dep’t 2013) (“[A]s a party to the underlying tax proceeding, Hyatt has standing to seek a protective order” barring the non-party subpoenas) (citing CPLR 3103(a)). “A party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the supervision of discovery is generally left to the trial court’s broad discretion.” Geffner v. Mercy Med. Ctr., 83 A.D.3d 998, 998 (2d Dep’t 2011) (citations omitted). This “broad authority to supervise discovery includes the discretion to direct the priority in which the parties may use disclosure devices . . .” Id. (citations omitted). It also includes the discretion to issue a protective order “based on defendant’s issuance of harassing and unnecessary subpoenas.” Schorr v. Schorr, 113 A.D.3d 490, 491 (1st Dep’t 2014). The Court may also use CPLR 3103(a) to issue a protective order quashing discovery that is otherwise “palpably improper,” such as where it is 1 1 of 3 FILED: KINGS COUNTY CLERK 04/12/2024 10:39 AM INDEX NO. 505356/2023 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2024 “overbroad, burdensome, fails to specify with reasonable particularity many of the documents Lombardi v. Lombardi 190 A.D. 3d 964, 966 (2d Dep’t 2021) (citations omitted). And “[w]here the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it.” Id. The grounds for quashing the Non-Party Subpoenas fall into at least three (3) categories: (a) The Subpoenas are Extremely Overbroad, Burdensome, and Harassing The Non-Party Subpoenas are designed to unduly burden, harass, annoy, embarrass, and disadvantage Mr. Kliger and clients. The facially apparent intent of these harassing subpoenas is to poison Mr. Kliger’s relationship with clients under a pretense of legitimate discovery. Specifically, the Non-Party Subpoenas call for the production – through Mr. Kliger’s colleagues and competitors in the insurance business – of literally every conceivable document and communication – which is palpably improper and far beyond discovery relevant and material to facts at issue in a pending judicial proceeding-- regarding certain insurance clients of Fairmont: All insurance policies, insurance related agreements, and insurance related correspondence, including, but not limited to, correspondence was between carriers, agencies, or consultants, since February 14, 2023 concerning or relating to any of the following entities: … A more overbroad formulation of a document request is hard to imagine. Moreover, the Subpoenas identify dozens and dozens of insureds for each target of the Subpoenas: AJH – 58 clients; Bayrock - 127 clients; Fidella – 57 clients; Relation – 25 clients; Ryan – 16 clients; and Rushmore – 13 clients. Imposing such overbroad discovery on non-parties, especially before Kliger’s document production is complete, is palpably improper. Subpoenas duces tecum “may not be used for purposes of general discovery or to ascertain the existence of evidence. Rather the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” Fugazy v. Fugazy, 210 A.D.3d 653, 657 (2d Dep’t 2022) (internal citations and quotations omitted). (b) Third-Party Discovery Should Follow Kliger’s Document Production The Non-Party Subpoenas should also be quashed because document production from non- party discovery should abide Kliger’s document production – which is not yet due – and which may moot the need to burden the non-parties. (c) The Non-Party Subpoenas to AJH, Fidella, and Rushmore Are Defective Because They Contain Conflicting Dates, and Omit Dates, For Production The AJH, Fidella, and Rushmore Non-Party Subpoenas each call for: (i) production of documents within twenty (20) days of service of the Non-Party Subpoena; but (ii) contradict that time frame by advising that “the Subpoenaed evidence shall not be produced or released until the date specified herein for the taking of the deposition”; and (iii) further confuse the issue by failing to specify any deposition date. Accordingly, AJH, Fidella, and Rushmore, 2 2 of 3 FILED: KINGS COUNTY CLERK 04/12/2024 10:39 AM INDEX NO. 505356/2023 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2024 cannot comply with these Non-Party Subpoenas in their current form and they are facially defective. Kliger attempted to meet and confer with Fairmont in the hope that it might withdraw or defer the Non-Party Subpoenas, but no agreement could be reached. Accordingly, Kliger seeks permission to file a motion for a protective order to quash or otherwise limit the Non-Party Subpoenas, and for the costs incurred in being forced to file this motion. Sincerely, ____/s/______________________ Allen Schwartz, Esq. cc: counsel of record via NYSCEF 3 3 of 3