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FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------------------------X Index No. 604673/2023
SIMMONS JANNACE DELUCA, LLP
Plaintiff, AFFIRMATION IN
-against- REPLY TO
PLAINTIFF'S OPPOSITION
TO QUASH SUBPOENA
INCORPORATED VILLAGE OF FREEPORT
(Mot. Seq. # 2)
Defendants.
---......._ _ _ _ _ __ _ _.._ __ _ __ _ _---.._ __________..x
1. Mitchell Goldklang, an attorney duly admitted to practice law before the Courts of the State
ofNew York, hereby affirms under the penalties of law.
2. I am admitted to practice before this Court, am associated with the Law Office of
("Defendant"
Steven Cohn, P.C., attorneys in this action for Defendant, The Village of Freeport or
"The Village"), and am fully familiar with the facts and circumstances set forth herein. This
affirmation is submitted in reply to the opposition of Plaintiff's counsel (hereinafter "plaintiff "or
"Sm") to Defendant's motion to Quash the Subpoena Duces Tecum served upon CCS Adjusters,
a third-party administrator/ insurance adjuster and agent for the Village of Freeport.
3. As previously argued, the motion [to Quash] should be granted as "Defendant ha a
proprietary interest in the disclosure sought by the Subpoena, which includes the financial records,
corporate documents, business records and attorney-client privileged information of the Village
agents."
Attorneys and its Upon receipt of the Subpoena your Affirmant wrote to Plaintiff's
counsel and stated that the subpoena was improper as it sought "information that is "... confidential
product."
attorney-client work (NYSECF Doc. # 27). Plaintiff's opposition papers fail to establish
that they are entitled to the information demanded in the Subpoena.
. 1
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"conferred"
4. While plaintiff's counsel states we never on the substance of the
Subpoena, the truth is conversations were conducted between counsel and myself concerning the
Subpoena that resulted in your Affirmants consent to two rather lengthy adjournments of this
motion at plaintiff's counsel's request (NYSECF Doc. #'s 28, 29 & 33). It belies common sense to
believe that we discussed adjourning the motion without discussing the substance of the Subpoena
and the motion itself.
5. Further, PlaintifPs counsel never addresses the fact the subpoena served on a non-
party is facially defective and unenforceable as it neither contains, nor is accompanied by a notice
stating the circumstances or reasons such disclosure is sought or required (see Needleman v .
Tornheim, 88 AD3d 773 [2011]; Kooper v Kooper, 74 AD3d 6, supra; Matter of American Express
Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Wolfv Wolf 300 AD2d 473 [2002]; Knitwork Prods.
Corp. v Helfat, 234 AD2d 345 [1996] ). Such is the case here.
6. Regardless of this defect, the Subpoena as argued, seeks information protected by
the Attorney-Client privilege. Specifically, the Subpoena seeks:
1. Copies of any and all emails between CCS Adjusters Inc. and Village Attorney Howard E.
Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to
present.
2. Copies of any and all emails between CCS Adjusters Inc. and the Incorporated Village of
Freeport officials, representatives, agents, employees and/or servants, including but not
limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's
invoices from October 26, 2015 to present.
3. Copies of any and all emails between CCS Adjusters Inc. and Law Office of Steven
Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015
to present.
4. Copies of any and all correspondence between CCS Adjusters Inc. and Village
Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from
October 26, 2015 to present.
2
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5. Copies of any and all correspondence between CCS Adjusters Inc. and the
Incorporated Village of Freeport officials, representatives, agents, employees and/or
servants, including but not limited to Village Mayor Robert Kennedy, pertaining to
Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present.
6. Copies of any and all correspondence between CCS Adjusters Inc. and Law Office
of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from
October 26, 2015 to present.
7. Copies of any and all recordings of telephone conferences, virtual conferences (e.g. Skype,
Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and Village
Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from
October 26, 2015 to present.
8. Copies of any and all telephone conferences, virtual conferences (e.g. Skype,
Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and the
Incorporated Village of Freeport officials, representatives, agents, employees and/or
servants, including but not limited to Village Mayor Robert Kennedy, pertaining to
Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present.
9. Copies of any and all telephone conferences, virtual conferences (e.g. Skype,
Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and Law
Office of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from
October 26, 2015 to present.
10. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype,
Microsoft Teams, etc.) between CCS Adjusters Inc. and Village Attorney Howard E.
Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to
present.
11. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype,
Microsoft Teams, etc.) between CCS Adjusters Inc. and the Incorporated Village of
Freeport officials, representatives, agents, employees and/or servants, including but not
limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's
invoices from October 26, 2015 to present.
12. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype,
Microsoft Teams, etc.) between CCS Adjusters Inc. and Law Office of Steven Cohn, P.C.,
pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present.
7. With respect to Subpoena demands 1, 4, 7 & 10 it seeks information directly
involving confidential communications had between the Village Attorney and its Agent CCS which
now directly involve the subject matter of this litigation and are protected by the Attorney Client
privilege. The Subpoena seeks communications between the Village Attorney, his employees, etc.,
and the Villages Agent, CCS "including but not limited to...", all emails, correspondence,
3
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recordings of telephone conferences, telephone logs etc., between the Village Attorney and CCS.
"in-house"
CCS is the Village's agent and/or employee as it works with the Village as its billing
administrator including the.gathering and possession of all communication/consultations, between
the Village Attorney and its vendor attorneys (outside legal counsel to the Village) and CCS.
8. The same would be true of any communications that involve the Law Office of
Steven Cohn, PC, which firm was retained to represent the Village of Freeport in this action, and
the Village's agent and Third-Party Administrator, CCS. The information and the communications
sought between this firm and the Village's agent, necessarily involve the Cohn Firms defense of
the subject action and should be quashed (see, Subpoena Demands 1, 3, 9 & 12).
9. It is well settled that the attorney-client privilege can be extended to the clients
employees or legal representatives under the agency doctrine (Hudson Ins. Co. v M J. Oppenheim,
72 AD3d 489, 489-490 [1st Dept 2001] [applying privilege to documents generated by forensic
accountant retained by defense counsel]; Carone v Venator Group, Inc., 289 AD2d 185, 186 [1st
Dept 2001] [attorney-client privilege covered defendants in-house counsel]). Any
communications between CCS and the Village Attorney or the Cohn Firm is protected from
discovery by attorney-client privilege (see, e.g., Sevenson Envtl. Servs., Inc. v Sirius Am. Ins. Co.,
64 AD3d 1234, 1236 [4th Dept 2009] ["the attorney-client privilege extends to communications
to 'one serving as an agent of either attorney or client'"] ; Delta Fin. Corp. v Morrison, 15 Misc 3d
308, 316-17 [Sup Ct, Nassau County 2007).
10. A Subpoena may be challenged if it encompasses materials that are privileged. See
Haron v Azoulay, 132 AD3d 475 (1st Dept. 2015); Bombardier Capital Inc. v Schoengold Sporn
Laitman & Lometti, P.C, 46 AD3d 323 (1st Dept. 2007); Soho Generation of New York, Inc. v Tri-
City Ins. Brokers, Inc., 236 AD276 (1st Dept. 1997). This includes material or information that
.
4
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falls under the attorney-client privilege. See generally CPLR 4503 ; Spectrum Sys. Intern. Corp. v
Chemical Bank, 78 NY2d 371 (1991). This rule applies even where some items may be relevant
and not subject to a privilege, as it is not the role of the defendants, the nonparties or the court to
bad."
"cull the good from the Grotallio v Soft Drink Leasing Corp., 97 AD 2d 383, 468 NYS2d 4
(1"
Dept. 1983).
11. Apart from seeking confidential and/or privileged information, the Subpoena is
overbroad and constitutes an improper fishing expedition, and must be quashed on this basis as
well, see, Reuters Ltd. v Dow Jones Telerate, Inc., 231 AD2d 337, 342 (1st Dept. 1997).
The Subpoena is overbroad
12. With respect to all the Subpoena Demands including but not limited to demands 2,
5, 8 & 11, contrary to Plaintiff's contentions, said demands are overbroad. These demands are far
from being "limited in nature, scope duration of time and relevant to the claims at issue". The
Subpoena seeks "copies of all e-mails and communication including any and all telephone
conferences, telephone logs virtual conferences (e.g. Skype, Microsoft Teams, etc.), in-person
conferences( how one gives a copy of an in-person conference is unknown), etc., between CCS
Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents,
employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining
to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present". This demand
necessarily encompasses all cases in which SJD acted as counsel for the Village of Freeport, which
present"
they have done for "28 years", and which fit within the "2015to time frame. The fact the
"only"
demand seeks records, etc., from 2015 to the present does not equate to the demand being
"limited in scope and time".
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13. The Subpoena fails to limit its fishing expedition to any one fish, or any one fishing
hole. Instead, the Subpoena seeks, without limitation, copies of all communications and /or
documentation of any kind between CCS Adjusters Inc. and the Incorporated Village of Freeport
officials, representatives, agents, employees and/or servants, including but not limited to Village
Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26,
present."
2015 to To be clear, that involves numerous actions not related to the subject of the
litigation but any case Sm did work for on behalf of the Village since 2015. As stated by the
(1"
Court in Law Office of Ravi Batra, PC v. Rabinwich 77 AD3d 532, 909 NYS2d 706 Dept.
2010):
In any event, the subpoena was over-broad as it sought all documents related to defendant
and did not differentiate between materials maintained by plaintiff in its representation of
defendant with those maintained and prepared in anticipation of and during this action.
Moreover, a subpoena duces tecum "may not be used for the purpose of discovery or to
evidence"
ascertain the existence of (People v Gissendanner, 48 NY2d 543, 551 [1979])
and a subpoena should be quashed when the subpoena is being used for a fishing expedition
to ascertain the existence of evidence (Matter of Office of Attorney Gen. of State of N.Y.,
269 AD2d 1, 13 [2000].
. .
14. To support the wide scale of the Subpoena, Plaintiff argue the information sought
matter"
does not only pertain to the "AVZ (the case where the majority of fees are claimed) but for
any other actions SJD has handled for the Village. To support the extensive nature of the Subpoena,
Plaintiff identifies two additional cases it did work on for the Village, Ana Medina v. Inc. Village
of Freeport, et. al. (604161/2016), a matter that was discontinued against the Village of Freeport
on August 25, 2016 (see Exhibit "A") and Marti Homes LLC. v. Inc. Village of Freeport
(601272/2021) which the Courts ECF system discloses was disposed of on 7/30/21, see EXHIBIT
"B"). These cases, the only other matters set forth in the Complaint, only confirm the irrelevance
and/or expansiveness of the Subpoena.
6
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15. A subpoena may not be used as a tool of harassment or for a proverbial "fishing
evidence."
expedition to ascertain the existence of Reuters Ltd. v Dow Jones Telerate, Inc., 231
AD2d 337, 342 (1st Dept. 1997); see Law Firm of Ravi Batra, P.C. v Rabinowich, Id. Moreover,
"[w]here disclosure is sought against a nonparty, more stringent requirements are imposed on the
disclosure."
party seeking Velez v Hunts Point Multi-Serv. Ctr, Inc. 29 AD 3d 104, 811 NYS2d 5
(1"
Dept. 2006)
16. The Subpoena at issue is clearly a fishing expedition, and seeks, without
explanation over eight years of alleged communications between the Village and its agent, CCS,
including matters unrelated to this litigation. With respect to information directly related to this
action, Plaintiff is already in possession of its legal bills which it claims are due and owing (this is
a "collection case") as well as any correspondence Sm may have submitted to the Village in
support of its claim.
A Protective Order should be issued
17. In the alternative, this Court should grant a protective order. New York Courts have
broad authority to limit discovery devices, including subpoenas, by issuing a protective order
denying, limiting, conditioning or regulating the use of any disclosure device to prevent
unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person
or the courts. See County of Suffolk v. Long Island Power Authority, 100 A.D.3d 944 (citing CPLR
§ 3103(a); Accent Collections, Inc. v. Cappelli Enters., Inc., 84 A.D.3d 1283 (2d Dept. 2011).
Wherefore, it is respectfully requested the Court grant Defendant's motion to quash in its
entirety, and for such other relief as this Court deems just and proper.
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Dated: Carle Place, New York
November 12, 2023 Law Office of STEV COHN, P.C.
By: Mitchell R. o dkh g, Esq.
Attorneys for D fe t, Village
One Old Coun oad - Suite 420
Carle Place, N w ork 11514
(516) 294-6410
TO: ALL PARTIES BY ECF
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FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------X Index No. 604673/2023 SIMMONS JANNACE DELUCA, LLP Plaintiff, AFFIRMATION IN -against- REPLY TO PLAINTIFF'S OPPOSITION TO QUASH SUBPOENA INCORPORATED VILLAGE OF FREEPORT (Mot. Seq. # 2) Defendants. ---......._ _ _ _ _ __ _ _.._ __ _ __ _ _---.._ __________..x 1. Mitchell Goldklang, an attorney duly admitted to practice law before the Courts of the State ofNew York, hereby affirms under the penalties of law. 2. I am admitted to practice before this Court, am associated with the Law Office of ("Defendant" Steven Cohn, P.C., attorneys in this action for Defendant, The Village of Freeport or "The Village"), and am fully familiar with the facts and circumstances set forth herein. This affirmation is submitted in reply to the opposition of Plaintiff's counsel (hereinafter "plaintiff "or "Sm") to Defendant's motion to Quash the Subpoena Duces Tecum served upon CCS Adjusters, a third-party administrator/ insurance adjuster and agent for the Village of Freeport. 3. As previously argued, the motion [to Quash] should be granted as "Defendant ha a proprietary interest in the disclosure sought by the Subpoena, which includes the financial records, corporate documents, business records and attorney-client privileged information of the Village agents." Attorneys and its Upon receipt of the Subpoena your Affirmant wrote to Plaintiff's counsel and stated that the subpoena was improper as it sought "information that is "... confidential product." attorney-client work (NYSECF Doc. # 27). Plaintiff's opposition papers fail to establish that they are entitled to the information demanded in the Subpoena. . 1 1 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 "conferred" 4. While plaintiff's counsel states we never on the substance of the Subpoena, the truth is conversations were conducted between counsel and myself concerning the Subpoena that resulted in your Affirmants consent to two rather lengthy adjournments of this motion at plaintiff's counsel's request (NYSECF Doc. #'s 28, 29 & 33). It belies common sense to believe that we discussed adjourning the motion without discussing the substance of the Subpoena and the motion itself. 5. Further, PlaintifPs counsel never addresses the fact the subpoena served on a non- party is facially defective and unenforceable as it neither contains, nor is accompanied by a notice stating the circumstances or reasons such disclosure is sought or required (see Needleman v . Tornheim, 88 AD3d 773 [2011]; Kooper v Kooper, 74 AD3d 6, supra; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Wolfv Wolf 300 AD2d 473 [2002]; Knitwork Prods. Corp. v Helfat, 234 AD2d 345 [1996] ). Such is the case here. 6. Regardless of this defect, the Subpoena as argued, seeks information protected by the Attorney-Client privilege. Specifically, the Subpoena seeks: 1. Copies of any and all emails between CCS Adjusters Inc. and Village Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 2. Copies of any and all emails between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 3. Copies of any and all emails between CCS Adjusters Inc. and Law Office of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 4. Copies of any and all correspondence between CCS Adjusters Inc. and Village Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 2 2 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 5. Copies of any and all correspondence between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 6. Copies of any and all correspondence between CCS Adjusters Inc. and Law Office of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 7. Copies of any and all recordings of telephone conferences, virtual conferences (e.g. Skype, Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and Village Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 8. Copies of any and all telephone conferences, virtual conferences (e.g. Skype, Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 9. Copies of any and all telephone conferences, virtual conferences (e.g. Skype, Microsoft Teams, etc.), or in-person conferences, between CCS Adjusters Inc. and Law Office of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 10. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype, Microsoft Teams, etc.) between CCS Adjusters Inc. and Village Attorney Howard E. Colton, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 11. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype, Microsoft Teams, etc.) between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 12. Copies of any and all call logs for telephone and/or virtual calls (e.g. Skype, Microsoft Teams, etc.) between CCS Adjusters Inc. and Law Office of Steven Cohn, P.C., pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present. 7. With respect to Subpoena demands 1, 4, 7 & 10 it seeks information directly involving confidential communications had between the Village Attorney and its Agent CCS which now directly involve the subject matter of this litigation and are protected by the Attorney Client privilege. The Subpoena seeks communications between the Village Attorney, his employees, etc., and the Villages Agent, CCS "including but not limited to...", all emails, correspondence, 3 3 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 recordings of telephone conferences, telephone logs etc., between the Village Attorney and CCS. "in-house" CCS is the Village's agent and/or employee as it works with the Village as its billing administrator including the.gathering and possession of all communication/consultations, between the Village Attorney and its vendor attorneys (outside legal counsel to the Village) and CCS. 8. The same would be true of any communications that involve the Law Office of Steven Cohn, PC, which firm was retained to represent the Village of Freeport in this action, and the Village's agent and Third-Party Administrator, CCS. The information and the communications sought between this firm and the Village's agent, necessarily involve the Cohn Firms defense of the subject action and should be quashed (see, Subpoena Demands 1, 3, 9 & 12). 9. It is well settled that the attorney-client privilege can be extended to the clients employees or legal representatives under the agency doctrine (Hudson Ins. Co. v M J. Oppenheim, 72 AD3d 489, 489-490 [1st Dept 2001] [applying privilege to documents generated by forensic accountant retained by defense counsel]; Carone v Venator Group, Inc., 289 AD2d 185, 186 [1st Dept 2001] [attorney-client privilege covered defendants in-house counsel]). Any communications between CCS and the Village Attorney or the Cohn Firm is protected from discovery by attorney-client privilege (see, e.g., Sevenson Envtl. Servs., Inc. v Sirius Am. Ins. Co., 64 AD3d 1234, 1236 [4th Dept 2009] ["the attorney-client privilege extends to communications to 'one serving as an agent of either attorney or client'"] ; Delta Fin. Corp. v Morrison, 15 Misc 3d 308, 316-17 [Sup Ct, Nassau County 2007). 10. A Subpoena may be challenged if it encompasses materials that are privileged. See Haron v Azoulay, 132 AD3d 475 (1st Dept. 2015); Bombardier Capital Inc. v Schoengold Sporn Laitman & Lometti, P.C, 46 AD3d 323 (1st Dept. 2007); Soho Generation of New York, Inc. v Tri- City Ins. Brokers, Inc., 236 AD276 (1st Dept. 1997). This includes material or information that . 4 4 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 falls under the attorney-client privilege. See generally CPLR 4503 ; Spectrum Sys. Intern. Corp. v Chemical Bank, 78 NY2d 371 (1991). This rule applies even where some items may be relevant and not subject to a privilege, as it is not the role of the defendants, the nonparties or the court to bad." "cull the good from the Grotallio v Soft Drink Leasing Corp., 97 AD 2d 383, 468 NYS2d 4 (1" Dept. 1983). 11. Apart from seeking confidential and/or privileged information, the Subpoena is overbroad and constitutes an improper fishing expedition, and must be quashed on this basis as well, see, Reuters Ltd. v Dow Jones Telerate, Inc., 231 AD2d 337, 342 (1st Dept. 1997). The Subpoena is overbroad 12. With respect to all the Subpoena Demands including but not limited to demands 2, 5, 8 & 11, contrary to Plaintiff's contentions, said demands are overbroad. These demands are far from being "limited in nature, scope duration of time and relevant to the claims at issue". The Subpoena seeks "copies of all e-mails and communication including any and all telephone conferences, telephone logs virtual conferences (e.g. Skype, Microsoft Teams, etc.), in-person conferences( how one gives a copy of an in-person conference is unknown), etc., between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, 2015 to present". This demand necessarily encompasses all cases in which SJD acted as counsel for the Village of Freeport, which present" they have done for "28 years", and which fit within the "2015to time frame. The fact the "only" demand seeks records, etc., from 2015 to the present does not equate to the demand being "limited in scope and time". 5 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 13. The Subpoena fails to limit its fishing expedition to any one fish, or any one fishing hole. Instead, the Subpoena seeks, without limitation, copies of all communications and /or documentation of any kind between CCS Adjusters Inc. and the Incorporated Village of Freeport officials, representatives, agents, employees and/or servants, including but not limited to Village Mayor Robert Kennedy, pertaining to Simmons Jannace DeLuca, LLP's invoices from October 26, present." 2015 to To be clear, that involves numerous actions not related to the subject of the litigation but any case Sm did work for on behalf of the Village since 2015. As stated by the (1" Court in Law Office of Ravi Batra, PC v. Rabinwich 77 AD3d 532, 909 NYS2d 706 Dept. 2010): In any event, the subpoena was over-broad as it sought all documents related to defendant and did not differentiate between materials maintained by plaintiff in its representation of defendant with those maintained and prepared in anticipation of and during this action. Moreover, a subpoena duces tecum "may not be used for the purpose of discovery or to evidence" ascertain the existence of (People v Gissendanner, 48 NY2d 543, 551 [1979]) and a subpoena should be quashed when the subpoena is being used for a fishing expedition to ascertain the existence of evidence (Matter of Office of Attorney Gen. of State of N.Y., 269 AD2d 1, 13 [2000]. . . 14. To support the wide scale of the Subpoena, Plaintiff argue the information sought matter" does not only pertain to the "AVZ (the case where the majority of fees are claimed) but for any other actions SJD has handled for the Village. To support the extensive nature of the Subpoena, Plaintiff identifies two additional cases it did work on for the Village, Ana Medina v. Inc. Village of Freeport, et. al. (604161/2016), a matter that was discontinued against the Village of Freeport on August 25, 2016 (see Exhibit "A") and Marti Homes LLC. v. Inc. Village of Freeport (601272/2021) which the Courts ECF system discloses was disposed of on 7/30/21, see EXHIBIT "B"). These cases, the only other matters set forth in the Complaint, only confirm the irrelevance and/or expansiveness of the Subpoena. 6 6 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 15. A subpoena may not be used as a tool of harassment or for a proverbial "fishing evidence." expedition to ascertain the existence of Reuters Ltd. v Dow Jones Telerate, Inc., 231 AD2d 337, 342 (1st Dept. 1997); see Law Firm of Ravi Batra, P.C. v Rabinowich, Id. Moreover, "[w]here disclosure is sought against a nonparty, more stringent requirements are imposed on the disclosure." party seeking Velez v Hunts Point Multi-Serv. Ctr, Inc. 29 AD 3d 104, 811 NYS2d 5 (1" Dept. 2006) 16. The Subpoena at issue is clearly a fishing expedition, and seeks, without explanation over eight years of alleged communications between the Village and its agent, CCS, including matters unrelated to this litigation. With respect to information directly related to this action, Plaintiff is already in possession of its legal bills which it claims are due and owing (this is a "collection case") as well as any correspondence Sm may have submitted to the Village in support of its claim. A Protective Order should be issued 17. In the alternative, this Court should grant a protective order. New York Courts have broad authority to limit discovery devices, including subpoenas, by issuing a protective order denying, limiting, conditioning or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts. See County of Suffolk v. Long Island Power Authority, 100 A.D.3d 944 (citing CPLR § 3103(a); Accent Collections, Inc. v. Cappelli Enters., Inc., 84 A.D.3d 1283 (2d Dept. 2011). Wherefore, it is respectfully requested the Court grant Defendant's motion to quash in its entirety, and for such other relief as this Court deems just and proper. 7 of 8 FILED: NASSAU COUNTY CLERK 11/14/2023 05:09 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/14/2023 Dated: Carle Place, New York November 12, 2023 Law Office of STEV COHN, P.C. By: Mitchell R. o dkh g, Esq. Attorneys for D fe t, Village One Old Coun oad - Suite 420 Carle Place, N w ork 11514 (516) 294-6410 TO: ALL PARTIES BY ECF 8 of 8