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FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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Kathleen A. Ellis, Index No: 64659/2021
Plaintiff, (Patel, J.)
- against –
Elizabeth Byrne, Rachel Hennig, the Principal
Financial Group, Inc. a/k/a Principal, Wells Fargo
Institutional Retirement and Trust, A Business Unit of
Wells Fargo Bank, N.A., Subaru Distributors Corp.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S
MOTION TO COMPEL DISCOVERY AND RELATED RELIEF
McCARTHY FINGAR LLP
Frank W. Streng, Esq.
Irma K. Nimetz, Esq.
Attorneys for Plaintiff,
Kathleen A. Ellis
711 Westchester Avenue, Suite 405
White Plains, NY 10604
Tel. No.: (914) 946-3700
Email: fstreng@mccarthyfingar.com
inimetz@mccarthyfingar.com
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 3
POINT I ...................................................................................................................................... 4
PLAINTIFF’S MOTION TO COMPEL SHOULD BE GRANTED ..................................... 4
POINT II ..................................................................................................................................... 6
PLAINTIFF SHOULD BE AWARDED COSTS AND ATTORNEYS’ FEES IN
CONNECTION WITH BRINGING THIS MOTION TO COMPEL .................................... 6
CONCLUSION ............................................................................................................................... 8
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TABLE OF AUTHORITIES
Cases
Allen v. Crowell-Collier Publ. Co.,
21 N.Y.2d 403, 406 (1968) ......................................................................................................... 3
Carey v. Shakhnazarian,
68 Misc. 3d 1221(A), 130 N.Y.S.3d 641 (Sup. Ct., New York Co. 2020) ................................. 6
D2D Holdings LLC v. Bridgemarket Assoc.,
L.P., 2022 WL 1452459 at *3, 2022 N.Y. slip op. 31492(U) at **8 (Sup. Ct., N.Y. 2022) ..... 8
Dartnell Enters., Inc. v. Hewlett Packard Co.,
33 Misc 3d 1202 (A) at *2 , 938 N.Y.S.2d 226, 226 (Sup. Ct., Monroe Co. 2011) ................... 3
Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs. LLC,
2022 WL 900390 at *1 (Sup. Ct., New York Co. 2022) ............................................................ 3
Eyeking, LLC v. Singer,
174 A.D.3d 506, 506, 101 N.Y.S. 3d 858, 859 (2d Dep’t 2019) ................................................ 7
Kapon v. Koch,
23 NY3d 32, 38, 988 N.Y.S.2d 559, 564 (2014) ........................................................................ 3
Maxim Inc. v. Gross,
179 A.D. 3d 536, 537, 117 N.Y.S.3d 41, 42 (1st Dep’t 2020) .................................................... 8
Passarelli v. National Bank of Westchester,
81 A.D.2d 635, 636, 438 N.Y.S.2d 135, 135 (2d Dep’t 1981) ................................................... 7
Statutes
CPLR § 3101................................................................................................................................... 3
CPLR 3124 (McKinney 2022) ................................................................................................ 4, 7, 8
CPLR 3126 (McKinney 2022) ................................................................................................ 6, 7, 8
Professor Patrick M. Connors, Practice Commentaries 2018,
C3126:11, Exacting Costs and Attorney’s Fee as Sanction (McKinney 2022). ..................... 7, 8
Professor Patrick M. Connors, Practice Commentaries 2018,
C3126:5, Sanction for Disobedience of Order (McKinney 2022) .............................................. 7
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PRELIMINARY STATEMENT
In 2002, John D. Kelly, Jr., a former longtime employee of Subaru Distributors Corp.
(“Subaru”), named Kathleen Ellis (hereinafter “Plaintiff” or “Ellis”), his sister, as the contingent
100% beneficiary of his Subaru 401k Plan. Nimetz Aff., ¶ 4. 1 John D. Kelly, Jr. suffered a
debilitating stroke in December 2019 and was diagnosed with terminal cancer in February 2021.
He died on March 19, 2021. Nimetz Aff., ¶ 3.
In this action, Plaintiff, the sole distributee and administrator of the estate of her brother,
decedent John D. Kelly, Jr. (hereinafter “Kelly” or “Decedent”), alleges that defendants
Elizabeth Byrne (hereinafter “Byrne”) and Rachel Hennig (hereinafter “Hennig”) made
unauthorized online changes of beneficiary designations on Kelly’s Subaru Distributors Corp.
401k Plan without Kelly’s knowledge or consent when he was terminally ill and lacked physical
and mental capacity. Nimetz Aff., ¶ 6. The prosecution of this action requires, in part, the
discovery of electronic evidence, including, but not limited to, the computer and/or mobile
device(s) used to make the purported online beneficiary designation changes to Kelly’s Subaru
401k Plan.
Plaintiff served discovery demands (interrogatories and document demands) on February
7, 2022 requesting information concerning, inter alia, Byrne and Hennig’s mobile phones.
Nimetz Aff., ¶ 15. Since that time, Byrne and Hennig have refused to respond without offering
any reasons for their failure to comply. Indeed, Byrne and Hennig admittedly turned in their
Apple iPhones in the Fall of 2021 after they knew Plaintiff was claiming that she was the 100%
1
Citations to the Affirmation of Irma K. Nimetz, Esq., dated September 28, 2022 (hereinafter “Nimetz
Affirmation”), in support of Plaintiff’s motion to compel shall hereafter be designated as “Nimetz Aff., ¶ __.”
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beneficiary of the funds in her brother’s Subaru 401k Plan, and that they had made online
changes of beneficiary designations to Kelly’s plan; and, after they had already retained counsel,
who wrote letters to the administrators of Kelly’s Subaru 401k Plan advising them to “freeze”
the assets in the account. Since February 2022, Byrne and Hennig have engaged in a game of cat
and mouse, revealing, for example, the model names of their old iPhones, which they turned in,
yet refusing to provide any information about their current iPhones or the data stored on those
phones. Nimetz Aff., ¶¶ 13, 17-18, 23-25, 28.
Despite numerous attempts, Byrne and Hennig still refuse to comply with Plaintiff’s
document demands and this Court’s Discovery Orders. Instead, Byrne and Hennig produced
vague and improper responses to Plaintiff’s First Set of Interrogatories and Plaintiff’s First
Request for Production of Documents, dated February 7, 2022, then served deficient
supplemental responses in April 2022. Nimetz Aff., ¶ 15. Seven months after Plaintiff served her
first discovery demands, Byrne and Hennig have cavalierly failed to provide the most basic
information – a description/model number of their current iPhones - and continue to employ
dilatory discovery tactics. Byrne and Hennig have clearly signaled to the parties and to the Court
that, in the absence of an order of this Court, they will not comply with discovery in this action.
Pursuant to this Court’s Notice, dated September 14, 2022, Plaintiff brings the instant motion to
compel.
STATEMENT OF FACTS
The Court is respectfully referred to the accompanying Affirmation of Good Faith, dated
September 28, 2022, with exhibits, and the Nimetz Affirmation, dated September 28, 2022, with
exhibits, for a statement of the facts relevant to Plaintiff’s motion to compel.
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ARGUMENT
Under the CPLR, “[a] party is entitled to full disclosure of all evidence ‘material and
necessary in the prosecution or defense of an action’ (CPLR § 3101[a]). CPLR § 3101 is to be
liberally construed to require disclosure where the matter sought will assist in trial preparation by
sharpening the issues.” Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs. LLC, 2022 WL
900390 at *1 (Sup. Ct., New York Co. 2022). “’The words ‘material and necessary’ are to be
interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy
which will assist preparation for trial by sharpening the issues and reducing delay and
prolixity.’” Id. (citing Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). See Kapon
v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 564 (2014) (citing Allen v. Crowell-Collier Publ.
Co., 21 N.Y.2d 403, 406 (1968)). “The Court has ‘broad discretion to regulate the use of any
disclosure device’. In addition, the scope of disclosure in New York is extremely liberal.”
Dartnell Enters., Inc. v. Hewlett Packard Co., 33 Misc 3d 1202 (A) at *2 , 938 N.Y.S.2d 226,
226 (Sup. Ct., Monroe Co. 2011). “’In determining whether the material sought through
discovery is ‘material and necessary’, the court must determine if the demanded material has any
bearing on the issues raised in the case. . . The test is one of usefulness and reason.’” Id.
(citations omitted).
The discovery Plaintiff is seeking here is “material and necessary” to the prosecution of
this action and is “reasonably calculated to lead to the discovery of admissible evidence”.
Defendants Byrne and Hennig, without offering any reason whatsoever, have simply failed to
comply with discovery. Accordingly, Plaintiff’s motion to compel should be granted as
demonstrated below.
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POINT I
PLAINTIFF’S MOTION TO COMPEL SHOULD BE GRANTED
CPLR 3124 provides that “[i]f a person fails to respond to or comply with any request,
notice, interrogatory, demand, question or order under this article, . . . the party seeking
disclosure may move to compel compliance or a response.” CPLR 3124 (McKinney 2022).
Plaintiff brings the instant motion to compel pursuant to CPLR 3124 and this Court’s Notice,
dated September 14, 2022. See Nimetz Affirmation of Good Faith, ¶¶ 7-12; Nimetz Aff., ¶ 34.
In this action, Plaintiff alleges 2 that Defendants Byrne and Hennig made two
unauthorized, unlawful online beneficiary designation changes to Kelly’s Subaru 401k Plan, just
a few weeks before Kelly died. Nimetz Aff., ¶¶ 3-9. Plaintiff also alleges that those online
changes, on February 16, 2021 and February 20, 2021, were made, without Kelly’s knowledge
and consent when he had diminished capacity and was terminally ill, by Byrne and Hennig, who
had a confidential and fiduciary relationship with Kelly. Nimetz Aff., ¶¶ 5-6.
Plaintiff served discovery demands seeking information concerning Byrne’s and
Hennig’s Electronic Devices, including but not limited to their current mobile phones, however,
Byrne and Hennig (and their counsel) refuse to provide any information about their current
mobile phones. Remarkably, even though Byrne and Hennig knew that there were competing
claims to the assets in Kelly’s Subaru 401k Plan and that an allegation existed that one or both of
them had made the on line changes of beneficiary designations and had retained counsel by June
2
While Plaintiff asserts several causes of action in the Complaint seeking to invalidate the purported online
beneficiary designation changes to Kelly’s Subaru 201k Plan, for purposes of this motion to compel, the pertinent
causes of action allege that Byrne and Hennig, who were in a confidential, fiduciary relationship2 with Kelly, made
the purported online beneficiary designation changes to Kelly’s Subaru 201k Plan. Nimetz Aff., ¶ 6.
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or early July 2021, they each “turned in” their Apple iPhones to Apple in the Fall of 2021 and
refuse to respond to any disclosure (interrogatories and document demands) requesting
information concerning their current phones. Nimetz Aff., ¶ 28.
Plaintiff specifically requested, in interrogatories, that Byrne and Hennig provide
information about all of their Electronic Devices, which included mobile phones. First, in their
answers dated March [14], 2022 Byrne and Hennig responded by stating that they had an iPhone
from December 13, 2019 through Decedent’s date of death [March 19, 2021], but then
cryptically stated that the “device was turned in when [they each] got a new iPhone.” Nimetz
Aff., ¶ 17. When Plaintiff’s counsel objected to these non-responsive answers to interrogatories,
Byrne and Hennig responded with “supplemental interrogatory” answers which were equally
evasive. Nimetz Aff., ¶ 22. They “revealed” the model names of the iPhones they had from the
time of Kelly’s stroke until his date of death (Byrne had an iPhone 11 Pro Max 64 GB; Hennig
had an iPhone 12 Pro Max), but they refused to answer what type of phones they currently have.
Nimetz Aff., ¶ 22, Exhibits G and H. Similarly, Byrne and Hennig objected and refused to
answer four interrogatories requesting “all location data” for all of their Electronic Devices on
February 16, 2021 and February 20, 2021, the dates the online beneficiary designation changes
were made to Decedent’s Subaru 401k Plan. Nimetz Aff., ¶ 19.
Plaintiff’s forensic computer consultant advised that by “turning in” their iPhones, some
data may have been permanently lost, including, but not limited, to “Frequent Places” (also
called “Significant Locations”). When Plaintiff’s counsel advised Byrne and Hennig’s attorney
that this data may have been permanently lost, she confirmed this fact with her own computer
consultant. Nimetz Aff., ¶ 36. And yet, Byrne and Hennig continue to obstruct discovery by
refusing to comply absent a court order.
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A forensic image and examination of Byrne and Hennig’s current iPhones (whatever they
may be) is necessary to preserve and retrieve all material and relevant evidence in connection
with this action. See Carey v. Shakhnazarian, 68 Misc. 3d 1221(A), 130 N.Y.S.3d 641 (Sup. Ct.,
New York Co. 2020). Indeed, a forensic image and examination of Byrne and Hennig’s current
iPhones may enable Plaintiff to see whether Byrne and Hennig searched for or visited Wells
Fargo’s web site to make the purported online beneficiary designation changes to Kelly’s Subaru
401k Plan. Plaintiff is and was willing to discuss a forensic examination protocol, including a list
of search terms for the forensic examination, but Byrne and Hennig’s counsel stated that they
“were not authorized” to provide any information or engage in any conversations regarding their
clients’ current mobile phones. Nimetz Affirmation of Good Faith, ¶¶ 7-12; Nimetz Affirmation,
¶ 34.
Discovery concerning Byrne and Hennig’s mobile phones is material and relevant.
Byrne and Hennig cannot simply refuse to provide such disclosure because they do not want to.
Indeed, they have not offered a single reason for withholding this information. Accordingly,
Plaintiff’s motion to compel should be granted in its entirety.
POINT II
PLAINTIFF SHOULD BE AWARDED COSTS AND ATTORNEYS’ FEES
IN CONNECTION WITH BRINGING THIS MOTION TO COMPEL
CPLR 3126 states, in part, that “if any party . . . refuses to obey an order for disclosure or
willfully fails to disclose information which the court finds ought to have been disclosed
pursuant to this article, the court may make such orders with regard to the failure or refusal as are
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just. . .” CPLR 3126 3 (McKinney 2022). It is within the Court’s discretion to award sanctions
for a party’s willful failure to disclose information and refusal to obey a discovery order.
“’Resolution of discovery disputes and the nature and degree of penalty to be imposed pursuant
to CPLR 3126 are matters within the sound discretion of the motion court.’” Eyeking, LLC v.
Singer, 174 A.D.3d 506, 506, 101 N.Y.S.3d 858, 859 (2d Dep’t 2019)(citations omitted). In
Eyeking, the court found that the “Supreme Court did not improvidently exercise its discretion in
imposing a monetary sanction to compensate the defendant’s counsel’s for the time expended
and costs incurred in connection with the plaintiff’s failure to fully and timely comply with
discovery”. Id.
“A motion to impose a CPLR 3126 sanction is clearly available for the disobedience of
an order directing disclosure.” Professor Patrick M. Connors, Practice Commentaries 2018,
C3126:5, Sanction for Disobedience of Order (McKinney 2022). “The source of the power that
enabled the court to issue the prior disclosure order is not relevant. The order will often have
been made under CPLR 3124 upon an outright motion to compel disclosure . . . The direction
could also emanate from a scheduling order.” Id. Byrne and Hennig have brazenly refused to
respond to Plaintiff’s discovery demands and defied this Court’s orders directing them to comply
or attempt to resolve these issues. See Nimetz Aff., ¶¶ 25, 28, 30, NYSCEF Nos. 42, 57, 63-64.
Monetary sanctions, preclusion and attorney’s fees have been imposed to sanction
conduct such as that demonstrated by Defendants Byrne and Hennig here. See Passarelli v.
National Bank of Westchester, 81 A.D.2d 635, 636, 438 N.Y.S.2d 135, 136 (2d Dep’t 1981).
3
“In making such orders under CPLR 3126 ‘as are just,’ the court is not limited to the remedies listed in the
numbered paragraphs of the section. . . [I]t can take any other reasonable course consistent with the demands of the
case and the purpose of CPLR 3126.” Professor Patrick M. Connors, Practice Commentaries 2018, ¶ C3126:11,
Exacting Costs and Attorney’s Fee as Sanction (McKinney 2022).
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“The rule is ensconced in all departments today that costs and attorneys’ fees, as set by the court,
are a fair exaction from a party who has generated unnecessary effort by the other side in seeking
court assistance with disclosure when it should not have been necessary.” Professor Patrick M.
Connors, Practice Commentaries 2018, ¶ C3126:11, Exacting Costs and Attorney’s Fee as
Sanction (McKinney 2022).
Based upon the foregoing, Plaintiff should be awarded costs and attorney fees in
connection with the instant motion to compel. See D2D Holdings LLC v. Bridgemarket Assoc.,
L.P., 2022 WL 1452459 at *3, 2022 N.Y. slip op. 31492(U) at **8 (Sup. Ct., New York Co.
2022); Maxim Inc. v. Gross, 179 A.D. 3d 536, 537, 117 N.Y.S.3d 41, 42 (1st Dep’t 2020).
CONCLUSION
By reason of the foregoing, Plaintiff respectfully requests that this Court grant her motion
for an Order:
(a) pursuant to CPLR 3124 directing Defendants
Elizabeth Byrne and Rachel Hennig to
comply with Plaintiff’s discovery requests,
including but not limited to Plaintiff’s First
Set of Interrogatories, dated February 7,
2022, and Plaintiff’s First Request for
Production of Documents, dated February 7,
2022;
(b) pursuant to CPLR 3124 directing Byrne and
Hennig to produce each of their mobile
phones to a forensic litigation consulting
company retained by Plaintiff, for forensic
imaging and examination of their current
mobile phones, to be paid for by Byrne and
Hennig, for the period from December 2019
to the date they each turned in their prior
Apple iPhones to Apple in the Fall of 2021;
(c) pursuant to CPLR 3126, directing Byrne and
Hennig to pay all costs and attorneys’ fees to
Plaintiff related to the instant motion to
compel; and,
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(d) for such other and further relief as this Court
deems just and proper.
Dated: White Plains, New York
September 28, 2022
Respectfully submitted,
McCARTHY FINGAR LLP
By: ___________________________
Irma K. Nimetz, Esq.
Frank W. Streng, Esq.
711 Westchester Avenue, Suite 405
White Plains, NY 10604
Tel. No.: (914) 946-3700
Email: fstreng@mccarthyfingar.com
inimetz@mccarthyfingar.com
Attorneys for Plaintiff, Kathleen A. Ellis
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CERTIFICATION
Pursuant to the Uniform Rules for the Supreme Court, Rule 202.8-b, 22 NYCRR Section
1200 (2022), the foregoing Memorandum of Law was prepared on a computer using Microsoft
Word.
TYPE: A proportionally spaced typeface was used as follows:
NAME OF TYPEFACE: Times New Roman
POINT SIZE: 14
LINE SPACING: Double
WORD COUNT: The total number of words in this annexed Memorandum of Law, inclusive of
point headings and footnotes and exclusive of pages containing the table of contents, table of
authorities, proof of service and certificate of compliance, or any authorized addendum
containing statutes, rules, regulations etc., is 2235, which complies with the word count limit (of
7,000 words) set forth in Uniform Rule 202.8-b(a).
McCARTHY FINGAR LLP
By: ___________________________
Irma K. Nimetz, Esq.
Frank W. Streng, Esq.
711 Westchester Avenue, Suite 405
White Plains, NY 10604
Tel. No.: (914) 946-3700
Email: fstreng@mccarthyfingar.com
inimetz@mccarthyfingar.com
Attorneys for Plaintiff, Kathleen A. Ellis
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CITATIONS
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235 N.E.2d 430, 288 N.Y.S.2d 449
require disclosure, upon request, of any facts bearing on
the controversy which will assistpreparation for trialby
sharpening the issues and reducing delay. *404
KeyCite Yellow Flag - Negative Treatment
(2) While the striking of the interrogatories rested in
discretion, an issue exists as to whether there was an abuse
Distinguished by Sashin v. Santelli Const. Co., N.Y.Sup., March 3, 1972
21 N.Y.2d 403, 235 N.E.2d 430, 288 N.Y.S.2d 449 of discretion and therefore a reviewable question of law is
presented.
Lillian Allen et al., Appellants,
v.
Crowell-Collier Publishing Allen v. Crowell-Collier Pub. Co., 26 A D 2d 516, reversed.
Company, Respondent.
SUMMARY
Court of Appeals of New York
Argued January 17, 1968; Appeal, by permission of the Appellate Division of the
Supreme Court in the First Judicial Department, from an order
decided February 21, 1968. of said court, entered June 9, 1966, which affirmed, by a
divided court, an order of the Supreme Court at Special Term
(Peter A. Quinn, J.),entered June 25, 1964 in New York
CITE TITLE AS: Allen v County, granting, in part,a motion by defendant to strike
Crowell-Collier Publ. Co. certain portions of plaintiffs' interrogatories. The following
question was certified: “Was the order of the Supreme Court,
HEADNOTES entered on June 25, 1964, which was affirmed by order of the
Appellate Division, entered in the office of the Clerk on June
Disclosure 9, 1966, properly made?”
Interrogatories
POINTS OF COUNSEL
Plaintiffs are entitled to answers to interrogatories in action by
discharged nonunion employees as to employer's severance
and retirement pay policy and practice--words “material Victor A. Kovner, Sydney D. Bierman, John C. Lankenau and
and necessary” in prosecution of action are to be liberally Allen G. Schwartz for appellants.
construed to require disclosure of any facts bearing on I.The stricken interrogatories seek information which can
controversy-- reviewable question of law arises as to abuse of logically establish that the policy of severance retirement
discretion. payments was in effect at plaintiffs'
place of employment.
(Morschauser v. American News Co., 6 A D 2d 1028; Matter
(1) In an action by nonunion employees of a publishing of Comstock, 21 A D 2d 843; Groben v. Travelers Ind. Co.,
company, employed in an Ohio plant, who were discharged 49 Misc 2d 14; West v. Aetna Cas. & Sur. Co., 49 Misc 2d 28;
upon suspension of publication of a magazine, to recover Linton v. Lehigh Val. R. R. Co., 25 A D 2d 334; Pittsburgh-Des
severance and retirement pay, based on their claim that Moines Steel Co. v. National Labor Relations Bd., 284 F. 2d
defendant had announced and carried out a policy and 74.) II. CPLR 3101 (subd. [a]) entitled each party to discovery
practice of making severance and retirement payments upon of all information sought in good faith for possible use as
termination of employment, plaintiffs are entitled to answers evidence-in-chief or in rebuttal or for cross-examination.
to interrogatories about defendant's practices with regard (Abby Finishing Corp. v. Electrospace Corp., 37 Misc 2d 195;
to severance and retirement pay at its Ohio and other Lapensky v. Gordon, 41 Misc 2d 958; Kaye v. Penguin Cab
plants, about its collective bargaining agreements, and about Corp., 40 Misc 2d 476; Roma v.Newspaper Cons. Corp.,
practices in the publishing business in general relating 40 Misc 2d 1085.) III. Where both parties stipulate to defer
thereto. Such evidence is “material and necessary” to the all discovery procedures pending disposition of a motion to
prosecution of the action within the meaning of CPLR
3101, subdivision (a), dealing with disclosure. The words
“material and necessary” are to be liberallyinterpreted to
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strike interrogatories, the rights of neither party are impaired current and past, with regard to severance and retirement
by a lengthy appeal. pay, both at its Springfield plant and at its other plants and
Terence F. Gilheany and Peter Megargee Brown for offices. The plaintiffs, who were nonunion employees, also
respondent. seek to inquire about collective bargaining agreements of the
I. Since the decision below lay within the discretionary power defendant and, in addition, request information concerning
of Special Term and the First Department, this appeal should practices in the publishing business in general. All this
be dismissed. (Paliotto v. Hartman, 2 A D 2d 866; Klebs v. information is necessary, they say, to show that the defendant,
Rockland Light & Power Co., 277 App. Div. 954; Hollywood although it contends otherwise, had an over-all, uniform
Shoe Polish v. Knomark Mfg. Co., 20 Misc 2d 367; Drake policy at its various *406 plants and offices--“consistent”
v. Herrman, 261 N. Y. 414; Middleton v. Boardman, 240 with procedures in the publishing business generally--in
N. Y. 552.) *405 II.In any event, the question certified regard to severance and retirement pay, whether or not it
by the First Department should be answered “yes” and that treated its nonunion employees differently from those who
court's order affirmed, since Special Term's order striking belonged to a union.
certain of appellants' interrogatories was properly made. III.
T
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FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------------X Kathleen A. Ellis, Index No: 64659/2021 Plaintiff, (Patel, J.) - against – Elizabeth Byrne, Rachel Hennig, the Principal Financial Group, Inc. a/k/a Principal, Wells Fargo Institutional Retirement and Trust, A Business Unit of Wells Fargo Bank, N.A., Subaru Distributors Corp., Defendants. ----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DISCOVERY AND RELATED RELIEF McCARTHY FINGAR LLP Frank W. Streng, Esq. Irma K. Nimetz, Esq. Attorneys for Plaintiff, Kathleen A. Ellis 711 Westchester Avenue, Suite 405 White Plains, NY 10604 Tel. No.: (914) 946-3700 Email: fstreng@mccarthyfingar.com inimetz@mccarthyfingar.com {01267540.docx.} 1 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/28/2022 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 ARGUMENT .................................................................................................................................. 3 POINT I ...................................................................................................................................... 4 PLAINTIFF’S MOTION TO COMPEL SHOULD BE GRANTED ..................................... 4 POINT II ..................................................................................................................................... 6 PLAINTIFF SHOULD BE AWARDED COSTS AND ATTORNEYS’ FEES IN CONNECTION WITH BRINGING THIS MOTION TO COMPEL .................................... 6 CONCLUSION ............................................................................................................................... 8 {01267540.docx.} i 2 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF:Previous View 09/28/2022 TABLE OF AUTHORITIES Cases Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968) ......................................................................................................... 3 Carey v. Shakhnazarian, 68 Misc. 3d 1221(A), 130 N.Y.S.3d 641 (Sup. Ct., New York Co. 2020) ................................. 6 D2D Holdings LLC v. Bridgemarket Assoc., L.P., 2022 WL 1452459 at *3, 2022 N.Y. slip op. 31492(U) at **8 (Sup. Ct., N.Y. 2022) ..... 8 Dartnell Enters., Inc. v. Hewlett Packard Co., 33 Misc 3d 1202 (A) at *2 , 938 N.Y.S.2d 226, 226 (Sup. Ct., Monroe Co. 2011) ................... 3 Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs. LLC, 2022 WL 900390 at *1 (Sup. Ct., New York Co. 2022) ............................................................ 3 Eyeking, LLC v. Singer, 174 A.D.3d 506, 506, 101 N.Y.S. 3d 858, 859 (2d Dep’t 2019) ................................................ 7 Kapon v. Koch, 23 NY3d 32, 38, 988 N.Y.S.2d 559, 564 (2014) ........................................................................ 3 Maxim Inc. v. Gross, 179 A.D. 3d 536, 537, 117 N.Y.S.3d 41, 42 (1st Dep’t 2020) .................................................... 8 Passarelli v. National Bank of Westchester, 81 A.D.2d 635, 636, 438 N.Y.S.2d 135, 135 (2d Dep’t 1981) ................................................... 7 Statutes CPLR § 3101................................................................................................................................... 3 CPLR 3124 (McKinney 2022) ................................................................................................ 4, 7, 8 CPLR 3126 (McKinney 2022) ................................................................................................ 6, 7, 8 Professor Patrick M. Connors, Practice Commentaries 2018, C3126:11, Exacting Costs and Attorney’s Fee as Sanction (McKinney 2022). ..................... 7, 8 Professor Patrick M. Connors, Practice Commentaries 2018, C3126:5, Sanction for Disobedience of Order (McKinney 2022) .............................................. 7 {01267540.docx.} ii 3 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 PRELIMINARY STATEMENT In 2002, John D. Kelly, Jr., a former longtime employee of Subaru Distributors Corp. (“Subaru”), named Kathleen Ellis (hereinafter “Plaintiff” or “Ellis”), his sister, as the contingent 100% beneficiary of his Subaru 401k Plan. Nimetz Aff., ¶ 4. 1 John D. Kelly, Jr. suffered a debilitating stroke in December 2019 and was diagnosed with terminal cancer in February 2021. He died on March 19, 2021. Nimetz Aff., ¶ 3. In this action, Plaintiff, the sole distributee and administrator of the estate of her brother, decedent John D. Kelly, Jr. (hereinafter “Kelly” or “Decedent”), alleges that defendants Elizabeth Byrne (hereinafter “Byrne”) and Rachel Hennig (hereinafter “Hennig”) made unauthorized online changes of beneficiary designations on Kelly’s Subaru Distributors Corp. 401k Plan without Kelly’s knowledge or consent when he was terminally ill and lacked physical and mental capacity. Nimetz Aff., ¶ 6. The prosecution of this action requires, in part, the discovery of electronic evidence, including, but not limited to, the computer and/or mobile device(s) used to make the purported online beneficiary designation changes to Kelly’s Subaru 401k Plan. Plaintiff served discovery demands (interrogatories and document demands) on February 7, 2022 requesting information concerning, inter alia, Byrne and Hennig’s mobile phones. Nimetz Aff., ¶ 15. Since that time, Byrne and Hennig have refused to respond without offering any reasons for their failure to comply. Indeed, Byrne and Hennig admittedly turned in their Apple iPhones in the Fall of 2021 after they knew Plaintiff was claiming that she was the 100% 1 Citations to the Affirmation of Irma K. Nimetz, Esq., dated September 28, 2022 (hereinafter “Nimetz Affirmation”), in support of Plaintiff’s motion to compel shall hereafter be designated as “Nimetz Aff., ¶ __.” {01267540.docx.} 1 4 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 beneficiary of the funds in her brother’s Subaru 401k Plan, and that they had made online changes of beneficiary designations to Kelly’s plan; and, after they had already retained counsel, who wrote letters to the administrators of Kelly’s Subaru 401k Plan advising them to “freeze” the assets in the account. Since February 2022, Byrne and Hennig have engaged in a game of cat and mouse, revealing, for example, the model names of their old iPhones, which they turned in, yet refusing to provide any information about their current iPhones or the data stored on those phones. Nimetz Aff., ¶¶ 13, 17-18, 23-25, 28. Despite numerous attempts, Byrne and Hennig still refuse to comply with Plaintiff’s document demands and this Court’s Discovery Orders. Instead, Byrne and Hennig produced vague and improper responses to Plaintiff’s First Set of Interrogatories and Plaintiff’s First Request for Production of Documents, dated February 7, 2022, then served deficient supplemental responses in April 2022. Nimetz Aff., ¶ 15. Seven months after Plaintiff served her first discovery demands, Byrne and Hennig have cavalierly failed to provide the most basic information – a description/model number of their current iPhones - and continue to employ dilatory discovery tactics. Byrne and Hennig have clearly signaled to the parties and to the Court that, in the absence of an order of this Court, they will not comply with discovery in this action. Pursuant to this Court’s Notice, dated September 14, 2022, Plaintiff brings the instant motion to compel. STATEMENT OF FACTS The Court is respectfully referred to the accompanying Affirmation of Good Faith, dated September 28, 2022, with exhibits, and the Nimetz Affirmation, dated September 28, 2022, with exhibits, for a statement of the facts relevant to Plaintiff’s motion to compel. {01267540.docx.} 2 5 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 ARGUMENT Under the CPLR, “[a] party is entitled to full disclosure of all evidence ‘material and necessary in the prosecution or defense of an action’ (CPLR § 3101[a]). CPLR § 3101 is to be liberally construed to require disclosure where the matter sought will assist in trial preparation by sharpening the issues.” Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs. LLC, 2022 WL 900390 at *1 (Sup. Ct., New York Co. 2022). “’The words ‘material and necessary’ are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.’” Id. (citing Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). See Kapon v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 564 (2014) (citing Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968)). “The Court has ‘broad discretion to regulate the use of any disclosure device’. In addition, the scope of disclosure in New York is extremely liberal.” Dartnell Enters., Inc. v. Hewlett Packard Co., 33 Misc 3d 1202 (A) at *2 , 938 N.Y.S.2d 226, 226 (Sup. Ct., Monroe Co. 2011). “’In determining whether the material sought through discovery is ‘material and necessary’, the court must determine if the demanded material has any bearing on the issues raised in the case. . . The test is one of usefulness and reason.’” Id. (citations omitted). The discovery Plaintiff is seeking here is “material and necessary” to the prosecution of this action and is “reasonably calculated to lead to the discovery of admissible evidence”. Defendants Byrne and Hennig, without offering any reason whatsoever, have simply failed to comply with discovery. Accordingly, Plaintiff’s motion to compel should be granted as demonstrated below. {01267540.docx.} 3 6 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 POINT I PLAINTIFF’S MOTION TO COMPEL SHOULD BE GRANTED CPLR 3124 provides that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, . . . the party seeking disclosure may move to compel compliance or a response.” CPLR 3124 (McKinney 2022). Plaintiff brings the instant motion to compel pursuant to CPLR 3124 and this Court’s Notice, dated September 14, 2022. See Nimetz Affirmation of Good Faith, ¶¶ 7-12; Nimetz Aff., ¶ 34. In this action, Plaintiff alleges 2 that Defendants Byrne and Hennig made two unauthorized, unlawful online beneficiary designation changes to Kelly’s Subaru 401k Plan, just a few weeks before Kelly died. Nimetz Aff., ¶¶ 3-9. Plaintiff also alleges that those online changes, on February 16, 2021 and February 20, 2021, were made, without Kelly’s knowledge and consent when he had diminished capacity and was terminally ill, by Byrne and Hennig, who had a confidential and fiduciary relationship with Kelly. Nimetz Aff., ¶¶ 5-6. Plaintiff served discovery demands seeking information concerning Byrne’s and Hennig’s Electronic Devices, including but not limited to their current mobile phones, however, Byrne and Hennig (and their counsel) refuse to provide any information about their current mobile phones. Remarkably, even though Byrne and Hennig knew that there were competing claims to the assets in Kelly’s Subaru 401k Plan and that an allegation existed that one or both of them had made the on line changes of beneficiary designations and had retained counsel by June 2 While Plaintiff asserts several causes of action in the Complaint seeking to invalidate the purported online beneficiary designation changes to Kelly’s Subaru 201k Plan, for purposes of this motion to compel, the pertinent causes of action allege that Byrne and Hennig, who were in a confidential, fiduciary relationship2 with Kelly, made the purported online beneficiary designation changes to Kelly’s Subaru 201k Plan. Nimetz Aff., ¶ 6. {01267540.docx.} 4 7 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 or early July 2021, they each “turned in” their Apple iPhones to Apple in the Fall of 2021 and refuse to respond to any disclosure (interrogatories and document demands) requesting information concerning their current phones. Nimetz Aff., ¶ 28. Plaintiff specifically requested, in interrogatories, that Byrne and Hennig provide information about all of their Electronic Devices, which included mobile phones. First, in their answers dated March [14], 2022 Byrne and Hennig responded by stating that they had an iPhone from December 13, 2019 through Decedent’s date of death [March 19, 2021], but then cryptically stated that the “device was turned in when [they each] got a new iPhone.” Nimetz Aff., ¶ 17. When Plaintiff’s counsel objected to these non-responsive answers to interrogatories, Byrne and Hennig responded with “supplemental interrogatory” answers which were equally evasive. Nimetz Aff., ¶ 22. They “revealed” the model names of the iPhones they had from the time of Kelly’s stroke until his date of death (Byrne had an iPhone 11 Pro Max 64 GB; Hennig had an iPhone 12 Pro Max), but they refused to answer what type of phones they currently have. Nimetz Aff., ¶ 22, Exhibits G and H. Similarly, Byrne and Hennig objected and refused to answer four interrogatories requesting “all location data” for all of their Electronic Devices on February 16, 2021 and February 20, 2021, the dates the online beneficiary designation changes were made to Decedent’s Subaru 401k Plan. Nimetz Aff., ¶ 19. Plaintiff’s forensic computer consultant advised that by “turning in” their iPhones, some data may have been permanently lost, including, but not limited, to “Frequent Places” (also called “Significant Locations”). When Plaintiff’s counsel advised Byrne and Hennig’s attorney that this data may have been permanently lost, she confirmed this fact with her own computer consultant. Nimetz Aff., ¶ 36. And yet, Byrne and Hennig continue to obstruct discovery by refusing to comply absent a court order. {01267540.docx.} 5 8 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 A forensic image and examination of Byrne and Hennig’s current iPhones (whatever they may be) is necessary to preserve and retrieve all material and relevant evidence in connection with this action. See Carey v. Shakhnazarian, 68 Misc. 3d 1221(A), 130 N.Y.S.3d 641 (Sup. Ct., New York Co. 2020). Indeed, a forensic image and examination of Byrne and Hennig’s current iPhones may enable Plaintiff to see whether Byrne and Hennig searched for or visited Wells Fargo’s web site to make the purported online beneficiary designation changes to Kelly’s Subaru 401k Plan. Plaintiff is and was willing to discuss a forensic examination protocol, including a list of search terms for the forensic examination, but Byrne and Hennig’s counsel stated that they “were not authorized” to provide any information or engage in any conversations regarding their clients’ current mobile phones. Nimetz Affirmation of Good Faith, ¶¶ 7-12; Nimetz Affirmation, ¶ 34. Discovery concerning Byrne and Hennig’s mobile phones is material and relevant. Byrne and Hennig cannot simply refuse to provide such disclosure because they do not want to. Indeed, they have not offered a single reason for withholding this information. Accordingly, Plaintiff’s motion to compel should be granted in its entirety. POINT II PLAINTIFF SHOULD BE AWARDED COSTS AND ATTORNEYS’ FEES IN CONNECTION WITH BRINGING THIS MOTION TO COMPEL CPLR 3126 states, in part, that “if any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are {01267540.docx.} 6 9 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 just. . .” CPLR 3126 3 (McKinney 2022). It is within the Court’s discretion to award sanctions for a party’s willful failure to disclose information and refusal to obey a discovery order. “’Resolution of discovery disputes and the nature and degree of penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court.’” Eyeking, LLC v. Singer, 174 A.D.3d 506, 506, 101 N.Y.S.3d 858, 859 (2d Dep’t 2019)(citations omitted). In Eyeking, the court found that the “Supreme Court did not improvidently exercise its discretion in imposing a monetary sanction to compensate the defendant’s counsel’s for the time expended and costs incurred in connection with the plaintiff’s failure to fully and timely comply with discovery”. Id. “A motion to impose a CPLR 3126 sanction is clearly available for the disobedience of an order directing disclosure.” Professor Patrick M. Connors, Practice Commentaries 2018, C3126:5, Sanction for Disobedience of Order (McKinney 2022). “The source of the power that enabled the court to issue the prior disclosure order is not relevant. The order will often have been made under CPLR 3124 upon an outright motion to compel disclosure . . . The direction could also emanate from a scheduling order.” Id. Byrne and Hennig have brazenly refused to respond to Plaintiff’s discovery demands and defied this Court’s orders directing them to comply or attempt to resolve these issues. See Nimetz Aff., ¶¶ 25, 28, 30, NYSCEF Nos. 42, 57, 63-64. Monetary sanctions, preclusion and attorney’s fees have been imposed to sanction conduct such as that demonstrated by Defendants Byrne and Hennig here. See Passarelli v. National Bank of Westchester, 81 A.D.2d 635, 636, 438 N.Y.S.2d 135, 136 (2d Dep’t 1981). 3 “In making such orders under CPLR 3126 ‘as are just,’ the court is not limited to the remedies listed in the numbered paragraphs of the section. . . [I]t can take any other reasonable course consistent with the demands of the case and the purpose of CPLR 3126.” Professor Patrick M. Connors, Practice Commentaries 2018, ¶ C3126:11, Exacting Costs and Attorney’s Fee as Sanction (McKinney 2022). {01267540.docx.} 7 10 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 “The rule is ensconced in all departments today that costs and attorneys’ fees, as set by the court, are a fair exaction from a party who has generated unnecessary effort by the other side in seeking court assistance with disclosure when it should not have been necessary.” Professor Patrick M. Connors, Practice Commentaries 2018, ¶ C3126:11, Exacting Costs and Attorney’s Fee as Sanction (McKinney 2022). Based upon the foregoing, Plaintiff should be awarded costs and attorney fees in connection with the instant motion to compel. See D2D Holdings LLC v. Bridgemarket Assoc., L.P., 2022 WL 1452459 at *3, 2022 N.Y. slip op. 31492(U) at **8 (Sup. Ct., New York Co. 2022); Maxim Inc. v. Gross, 179 A.D. 3d 536, 537, 117 N.Y.S.3d 41, 42 (1st Dep’t 2020). CONCLUSION By reason of the foregoing, Plaintiff respectfully requests that this Court grant her motion for an Order: (a) pursuant to CPLR 3124 directing Defendants Elizabeth Byrne and Rachel Hennig to comply with Plaintiff’s discovery requests, including but not limited to Plaintiff’s First Set of Interrogatories, dated February 7, 2022, and Plaintiff’s First Request for Production of Documents, dated February 7, 2022; (b) pursuant to CPLR 3124 directing Byrne and Hennig to produce each of their mobile phones to a forensic litigation consulting company retained by Plaintiff, for forensic imaging and examination of their current mobile phones, to be paid for by Byrne and Hennig, for the period from December 2019 to the date they each turned in their prior Apple iPhones to Apple in the Fall of 2021; (c) pursuant to CPLR 3126, directing Byrne and Hennig to pay all costs and attorneys’ fees to Plaintiff related to the instant motion to compel; and, {01267540.docx.} 8 11 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 (d) for such other and further relief as this Court deems just and proper. Dated: White Plains, New York September 28, 2022 Respectfully submitted, McCARTHY FINGAR LLP By: ___________________________ Irma K. Nimetz, Esq. Frank W. Streng, Esq. 711 Westchester Avenue, Suite 405 White Plains, NY 10604 Tel. No.: (914) 946-3700 Email: fstreng@mccarthyfingar.com inimetz@mccarthyfingar.com Attorneys for Plaintiff, Kathleen A. Ellis {01267540.docx.} 9 12 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 CERTIFICATION Pursuant to the Uniform Rules for the Supreme Court, Rule 202.8-b, 22 NYCRR Section 1200 (2022), the foregoing Memorandum of Law was prepared on a computer using Microsoft Word. TYPE: A proportionally spaced typeface was used as follows: NAME OF TYPEFACE: Times New Roman POINT SIZE: 14 LINE SPACING: Double WORD COUNT: The total number of words in this annexed Memorandum of Law, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service and certificate of compliance, or any authorized addendum containing statutes, rules, regulations etc., is 2235, which complies with the word count limit (of 7,000 words) set forth in Uniform Rule 202.8-b(a). McCARTHY FINGAR LLP By: ___________________________ Irma K. Nimetz, Esq. Frank W. Streng, Esq. 711 Westchester Avenue, Suite 405 White Plains, NY 10604 Tel. No.: (914) 946-3700 Email: fstreng@mccarthyfingar.com inimetz@mccarthyfingar.com Attorneys for Plaintiff, Kathleen A. Ellis {01267540.docx.} 10 13 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: PreviousView 09/28/2022 CITATIONS 14 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF Allen v NO. DOC. Crowell-Collier 85 Publ. Co., 21 N.Y.2d 403 (1968) RECEIVED NYSCEF: PreviousView 09/28/2022 235 N.E.2d 430, 288 N.Y.S.2d 449 require disclosure, upon request, of any facts bearing on the controversy which will assistpreparation for trialby sharpening the issues and reducing delay. *404 KeyCite Yellow Flag - Negative Treatment (2) While the striking of the interrogatories rested in discretion, an issue exists as to whether there was an abuse Distinguished by Sashin v. Santelli Const. Co., N.Y.Sup., March 3, 1972 21 N.Y.2d 403, 235 N.E.2d 430, 288 N.Y.S.2d 449 of discretion and therefore a reviewable question of law is presented. Lillian Allen et al., Appellants, v. Crowell-Collier Publishing Allen v. Crowell-Collier Pub. Co., 26 A D 2d 516, reversed. Company, Respondent. SUMMARY Court of Appeals of New York Argued January 17, 1968; Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order decided February 21, 1968. of said court, entered June 9, 1966, which affirmed, by a divided court, an order of the Supreme Court at Special Term (Peter A. Quinn, J.),entered June 25, 1964 in New York CITE TITLE AS: Allen v County, granting, in part,a motion by defendant to strike Crowell-Collier Publ. Co. certain portions of plaintiffs' interrogatories. The following question was certified: “Was the order of the Supreme Court, HEADNOTES entered on June 25, 1964, which was affirmed by order of the Appellate Division, entered in the office of the Clerk on June Disclosure 9, 1966, properly made?” Interrogatories POINTS OF COUNSEL Plaintiffs are entitled to answers to interrogatories in action by discharged nonunion employees as to employer's severance and retirement pay policy and practice--words “material Victor A. Kovner, Sydney D. Bierman, John C. Lankenau and and necessary” in prosecution of action are to be liberally Allen G. Schwartz for appellants. construed to require disclosure of any facts bearing on I.The stricken interrogatories seek information which can controversy-- reviewable question of law arises as to abuse of logically establish that the policy of severance retirement discretion. payments was in effect at plaintiffs' place of employment. (Morschauser v. American News Co., 6 A D 2d 1028; Matter (1) In an action by nonunion employees of a publishing of Comstock, 21 A D 2d 843; Groben v. Travelers Ind. Co., company, employed in an Ohio plant, who were discharged 49 Misc 2d 14; West v. Aetna Cas. & Sur. Co., 49 Misc 2d 28; upon suspension of publication of a magazine, to recover Linton v. Lehigh Val. R. R. Co., 25 A D 2d 334; Pittsburgh-Des severance and retirement pay, based on their claim that Moines Steel Co. v. National Labor Relations Bd., 284 F. 2d defendant had announced and carried out a policy and 74.) II. CPLR 3101 (subd. [a]) entitled each party to discovery practice of making severance and retirement payments upon of all information sought in good faith for possible use as termination of employment, plaintiffs are entitled to answers evidence-in-chief or in rebuttal or for cross-examination. to interrogatories about defendant's practices with regard (Abby Finishing Corp. v. Electrospace Corp., 37 Misc 2d 195; to severance and retirement pay at its Ohio and other Lapensky v. Gordon, 41 Misc 2d 958; Kaye v. Penguin Cab plants, about its collective bargaining agreements, and about Corp., 40 Misc 2d 476; Roma v.Newspaper Cons. Corp., practices in the publishing business in general relating 40 Misc 2d 1085.) III. Where both parties stipulate to defer thereto. Such evidence is “material and necessary” to the all discovery procedures pending disposition of a motion to prosecution of the action within the meaning of CPLR 3101, subdivision (a), dealing with disclosure. The words “material and necessary” are to be liberallyinterpreted to © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 15 of 232 FILED: WESTCHESTER COUNTY CLERK 09/28/2022 06:58 PM INDEX NO. 64659/2021 NYSCEF Allen v NO. DOC. Crowell-Collier 85 Publ. Co., 21 N.Y.2d 403 (1968) RECEIVED NYSCEF: PreviousView 09/28/2022 235 N.E.2d 430, 288 N.Y.S.2d 449 strike interrogatories, the rights of neither party are impaired current and past, with regard to severance and retirement by a lengthy appeal. pay, both at its Springfield plant and at its other plants and Terence F. Gilheany and Peter Megargee Brown for offices. The plaintiffs, who were nonunion employees, also respondent. seek to inquire about collective bargaining agreements of the I. Since the decision below lay within the discretionary power defendant and, in addition, request information concerning of Special Term and the First Department, this appeal should practices in the publishing business in general. All this be dismissed. (Paliotto v. Hartman, 2 A D 2d 866; Klebs v. information is necessary, they say, to show that the defendant, Rockland Light & Power Co., 277 App. Div. 954; Hollywood although it contends otherwise, had an over-all, uniform Shoe Polish v. Knomark Mfg. Co., 20 Misc 2d 367; Drake policy at its various *406 plants and offices--“consistent” v. Herrman, 261 N. Y. 414; Middleton v. Boardman, 240 with procedures in the publishing business generally--in N. Y. 552.) *405 II.In any event, the question certified regard to severance and retirement pay, whether or not it by the First Department should be answered “yes” and that treated its nonunion employees differently from those who court's order affirmed, since Special Term's order striking belonged to a union. certain of appellants' interrogatories was properly made. III. T