Preview
FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 09/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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NEIL B. RICE,
Plaintiff,
NOTICE OF ENTRY
-against-
Index No.: 61665/2021
LEE R. EINSIDLER, as Administrator of the Estate of
Aaron M. Einsidler,
Defendants.
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PLEASE TAKE NOTICE that the annexed is a true copy of the Decision & Order on
Motion Sequences 6 & 7 issued by the Honorable Hal B. Greenwald, J.S.C. on September 6,
2023, and entered in the office of the Clerk of the within named Court on September 7, 2023.
Dated: White Plains, New York
September 7, 2023
YANKWITT LLP
By:
Jonathan Ohring
140 Grand Street, Suite 705
White Plains, New York 10601
Tel: (914) 686-1500
Fax: (914) 487-5000
Attorneys for Defendant Lee R.
Einsidler
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
______________________________________________x
NEIL B. RICE, Index No.: 61665/2021
Plaintiff,
-against- DECISION & ORDER
(Motion Sequences 6 & 7)
LEE R. EINSIDLER,
As Administrator of the Estate of
Aaron Michael Einsidler
Defendant.
________________________________________________x
Greenwald, J.
The Court has read and or reviewed the following NYSCEF documents in reaching the
within Decision and Order:
NYSCEF documents numbers: 1 75-77 81-83 101-103 110-112 120-124 129-132 135-
140 143 145-147 158
This is an action for money damages for intentional and negligent infliction of emotional
distress, prima facie tort, assault, and battery.
PLAINTIFF SEEKS TO QUASH A NON-PARTY SUBPOENA (Motion Sequence #6)
Plaintiff on this motion (Motion Sequence #6) seeks an order (1) quashing, fixing
conditions, or modifying Defendant’s Subpoena Duces Tecum dated March 14, 2023, served
upon non-party Silvestro Spagnuolo c/o Spagnuolo Tax Serves LLC pursuant to CPLR §2304,
or, alternatively having a protective order issued pursuant to CPLR 3103. In support of this
Motion the Attorney Affirmation of Steven M. Brunnlehrman, Esq., is offered in which it is
stated that Mr. Spagnuolo is the accountant who prepared plaintiff’s tax returns. Plaintiff also
filed its Memorandum of Law in Support wherein it is stated plaintiff provided defendant with
five years of federal and state tax returns.
As the subject Subpoena concerns a non-party the relevant statute is CPLR 3102(a)(3)
which states:
§ 3101. Scope of disclosure
Currentness
(a) Generally. There shall be full disclosure of all matter material and necessary in the
prosecution or defense of an action, regardless of the burden of proof, by:
(4) any other person, upon notice stating the circumstances or reasons such disclosure
is sought or required.
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A review of the subject Subpoena Duces Tecum dated March 14, 2023, sets forth at
paragraph 17 the incorrect time period applicable as being January 1, 2007. As set forth in the
prior decision and Order of this Court (Motion Sequence #5) (Greenwald, J.) dated April 26,
2023, the correct time period applicable herein is from January 1, 2017. (Emphasis added).
Plaintiff’s MOL starts off with an argument that plaintiff has standing to quash a
subpoena on a non-party and continues with an argument that the subject Subpoena is “facially
defective” and cites several cases. Note that the non-party herein, Mr. Spagnuolo, who has not
objected to the subject subpoena, only recently filed five years of plaintiff’s tax returns with the
IRS, literally simultaneously with providing these same documents to the defendant. The Court
is of the opinion that the subject subpoena, that concerns only the above tax returns, and their
creation is not “facially defective”. In any event that issue was resolved by the Court of Appeals
in Kapon v. Koch, 23 N.Y.3d 32 (2014), which is referenced by defendant in its Memorandum of
Law at page 9 as follows:
Plaintiff’s argument is meritless. Plaintiff relies on Kooper v. Kooper, 74
A.D.3d 6 (2d Dep’t 2010), for the proposition that the Subpoena provides
insufficient notice. (Moving Br. at 8.) In that case, the Second Department
ruled that notice language in a subpoena was insufficient because it failed to
show something “more than mere relevance,” which, in its view, was required
for subpoenas to third parties under CPLR 3101(a)(4). Kooper, 74 A.D.3d at 18.
Kooper’s holding, however, was expressly abrogated by the Court of Appeals in
Kapon v. Koch, 23 N.Y.3d 32 (2014). In Kapon, the Court of Appeals rejected
the test applied by Kooper and held that the standard to be applied on a motion
to quash is simply whether the discovery sought is relevant. Kapon, 23 N.Y.3d at
38 (“We conclude that the ‘material and necessary’ standard adopted by the
First and Fourth Departments is the appropriate one and is in keeping with this
state’s policy of liberal discovery.”). Harmonizing its holding with the notice
requirement of CPLR 3101(a)(4), the Court of Appeals explained that “the
subpoenaing party’s notice obligation was never intended by the legislature to
shift the burden of proof on a motion to quash from a nonparty to the
subpoenaing party, but, rather, was meant to apprise a stranger to the litigation
the ‘circumstances or reasons’ why the requested disclosure was sought or
required.” Id. at 39. The Court held that the subpoenaing party had only a
“minimal obligation” to provide the subpoenaed party with “sufficient
information to challenge the subpoenas on a motion to quash.” Id
The Court agrees with defendant. The subject Subpoena certainly seeks to
uncover information that is “material and necessary”, in light of plaintiff’s claims based
upon his mental condition and the alleged affect it has had on his income. How can his
income be evaluated properly without the backup for his recent tax returns being
produced?
However, the Court can reconcile and agrees with the plaintiff when it states at
page 8 of its Memorandum of Law:
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“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.” Valdez v. Sharaby, 684 N.Y.S.2d 595, 258 AD2d 458 (2d Dep’t
1999) (emphasis added); Board of Education v. Hankins, 294 A.D.2d 360, 741
N.Y.S.2d 717 (2d Dep’t 2002
Again, plaintiff’s claim for $15M in damages is based upon allegations he has suffered
mental anguish and emotional distress at the hands of the decedents. Rice claims his income has
suffered due to this distress. Documents that are being sought by defendant in the subject
subpoena have direct and specific information that could (or could not) support plaintiff’s claims.
They are instrumental to the prosecution and defense of this action.
Interestingly, it is not the non-party accountant who has objected to the subject subpoena,
but the plaintiff and defendant focuses on this issue in its MOL at page 8 as follows:
Plaintiff does not argue that the Subpoenaed Documents are protected by any
privilege. Nor can he. New York does not recognize an accountant-client
privilege. Peerenboom v. Marvel Ent., LLC, 148 A.D.3d 531, 532 (1st Dep’t
2017). Thus, “[a] client’s communications with its accountants are not afforded
special protections under New York law and are subject to full disclosure.” 7
Carmody-Wait 2d N.Y. Practice with Forms § 42:174.
Lastly, plaintiff claims the subject subpoena is a “fishing expedition”. It appears that the
subject subpoena is a part of defendants’ quest to uncover, through means of court sanctioned
discovery methods, what financial information could comprise plaintiff’s claim. Plaintiff claims
in its Attorney’s Affirmation in Opposition to Defendant’s Cross Motion and In Further Support
of Plaintiff’s Motion to Quash and/or Grant Protective Order a misuse of a quote from this
Court’s April 26, 2023, Decision and Order:
22. It is Plaintiff’s contention that the subpoena duces tecum of nonparty
Accountant Spagnuolo is “untimely, overly broad and unduly burdensome and
potentially duplicative” of this Court’s Decision and Order dated April 26, 2023
The Court remains flattered but unmoved and disagrees with the plaintiff.
DEFENDANT’S CROSS MOTION TO COMPEL (Motion Sequence #7)
In opposition to plaintiff’s motion to quash, defendant filed a Cross Motion to Compel
the Production of Documents and Things. Defendant seeks an order:
pursuant to CPLR 3101 and CPLR 3124 compelling non-party Silvestro
Spagnuolo to produce documents responsive to the Subpoena Duces Tecum,
dated March 14, 2023, issued by Defendant in this action, and further
compelling plaintiff Neil B. Rice (“Plaintiff”) to produce all documents in his
possession, custody, or control that were transmitted to Spagnuolo by Plaintiff
or his counsel or which were used to prepare the Tax Returns (as defined in the
Memorandum of Law) or support the information therein, or, in the alternative,
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precluding Plaintiff from introducing evidence of damages at summary
judgment or trial.
It appears that plaintiff did not file income tax returns for the past five years because on
March 6, 2023, plaintiff produced five years of tax returns at the same time he filed them (late?)
with the IRS. Obviously, not only did defendant seek proof of plaintiff’s damages claim, but
even plaintiff recognized he had no such available “proof”. The above filing and production of
tax returns only confirms why defendant seeks to compel plaintiff to produce the above
supporting documents. Either plaintiff can somehow support its claim for money damages, or he
cannot.
There is also the question of an identical deduction of $38,600 for medical expenses for
each of the past five years. Defendant claims it needs the supporting backup documents and
information from plaintiff to substantiate (or not) the claim for these medical expenses. It is
curious why the amount claimed, $38,600 is identical for each of the past five years. Possibly
this can be supported by the disclosure that defendant is seeking.
The subject subpoena seeks only four categories of documents:
1. Copies of the Tax Returns [Spagnuolo] filed, prepared, or reviewed on behalf
of Rice during the Period, and any drafts thereof.
2. [Spagnuolo’s] work papers associated with the Tax Returns.
3. Documents and communications upon which [Spagnuolo] relied or as to
which [Spagnuolo] reviewed or referred in [Spagnuolo’s] filing, preparation, or
review of the Tax Returns, including any notes, communications, and/or
records which reflect the underlying information set forth in, or used to
support, the Tax Returns.
4. Documents [Spagnuolo] received from or sent to, and communications with,
Rice or any person acting on Rice’s behalf regarding the Tax Returns or in
connection with a request by Rice for [Spagnuolo’s] services in filing,
preparing, or reviewing the Tax Returns
Defendant asserts that under the CPLR there shall be full discovery of matter that is
“material and necessary” and claims that under 3101(a) this information has a bearing on the
“controversy at issue” and “leads to discovery of information bearing on the claims”. Certainly,
the above requests in the subject subpoena do just that. The plaintiff’s claims must be fully
fleshed out and properly supported by the complete and current financial picture of the plaintiff.
How else can a court or a jury determine what the damages in this action could be?
Plaintiff proposes that the subject subpoena does not advise the non-party what is the
reason for the requested documents being the subject of a subpoena. However, this is readily
apparent from the four demands that are specified in the subject subpoena.
By reason of all the foregoing it is
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ORDERED that plaintiff Motion (Motion Sequence #6) seeking an Order (1) quashing,
fixing conditions, or modifying Defendant’s Subpoena Duces Tecum dated March 14, 2023,
served upon Silvestro Spagnuolo c/o Spagnuolo Tax Serves LLC pursuant to CPLR §2304, or,
alternatively having a protective order issued pursuant to CPLR 3103 is DENIED; and it is
further,
ORDERED that defendants Cross Motion (Motion Sequence #7)seeking an order
pursuant to CPLR 3101 and CPLR 3124 compelling non-party Silvestro Spagnuolo to produce
documents responsive to the Subpoena Duces Tecum, dated March 14, 2023, issued by
Defendant in this action, and further compelling plaintiff Neil B. Rice (“Plaintiff”) to produce all
documents in his possession, custody, or control that were transmitted to Spagnuolo by Plaintiff
or his counsel or which were used to prepare the Tax Returns (as defined in the Memorandum of
Law) or support the information therein, or, in the alternative, precluding Plaintiff from
introducing evidence of damages at summary judgment or trial is GRANTED; and it is further,
ORDERED that non-party Spagnuolo Tax Services LLC c/o Silvestro Spagnuolo shall
comply with the Command set forth in the subject Subpoena Duces Tecum on or before October
20, 2023; and it is further.
ORDERED that plaintiff Neil B. Rice shall comply with the Command set forth in the
subject Subpoena DucesTecum on or before October 20, 2023; and it is further,
ORDERED that failure to comply with the directives of the within Decision and Order
may result in an Order precluding plaintiff from introducing damages at summary judgment or
trial; and it is further.
ORDERED that counsel is to appear before the Court for a status conference in
Courtroom 1201, at the Courthouse 111 Dr. Martin Luther King, Jr., Blvd., White Plains New
York on November 8, 2023, at 9:15am.
Any relief not specifically granted herein is denied.
The foregoing constitutes the decision and order of this Court.
Dated: September 6, 2023
White Plains, New York ENTER:
____________________________
Hon. Hal B. Greenwald, J.S.C.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after
service by a party upon the appellant of a copy of the judgment or order appealed from and
written notice of its entry, except that where the appellant has served a copy of the judgment or
order and written notice of its entry, the appeal must be taken within thirty days thereof.
To: All Parties via NYSCEF
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Preview
FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------------X NEIL B. RICE, Plaintiff, NOTICE OF ENTRY -against- Index No.: 61665/2021 LEE R. EINSIDLER, as Administrator of the Estate of Aaron M. Einsidler, Defendants. ---------------------------------------------------------------------X PLEASE TAKE NOTICE that the annexed is a true copy of the Decision & Order on Motion Sequences 6 & 7 issued by the Honorable Hal B. Greenwald, J.S.C. on September 6, 2023, and entered in the office of the Clerk of the within named Court on September 7, 2023. Dated: White Plains, New York September 7, 2023 YANKWITT LLP By: Jonathan Ohring 140 Grand Street, Suite 705 White Plains, New York 10601 Tel: (914) 686-1500 Fax: (914) 487-5000 Attorneys for Defendant Lee R. Einsidler 1 of 6 FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 08:49 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 202 RECEIVED NYSCEF: 09/07/2023 09/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ______________________________________________x NEIL B. RICE, Index No.: 61665/2021 Plaintiff, -against- DECISION & ORDER (Motion Sequences 6 & 7) LEE R. EINSIDLER, As Administrator of the Estate of Aaron Michael Einsidler Defendant. ________________________________________________x Greenwald, J. The Court has read and or reviewed the following NYSCEF documents in reaching the within Decision and Order: NYSCEF documents numbers: 1 75-77 81-83 101-103 110-112 120-124 129-132 135- 140 143 145-147 158 This is an action for money damages for intentional and negligent infliction of emotional distress, prima facie tort, assault, and battery. PLAINTIFF SEEKS TO QUASH A NON-PARTY SUBPOENA (Motion Sequence #6) Plaintiff on this motion (Motion Sequence #6) seeks an order (1) quashing, fixing conditions, or modifying Defendant’s Subpoena Duces Tecum dated March 14, 2023, served upon non-party Silvestro Spagnuolo c/o Spagnuolo Tax Serves LLC pursuant to CPLR §2304, or, alternatively having a protective order issued pursuant to CPLR 3103. In support of this Motion the Attorney Affirmation of Steven M. Brunnlehrman, Esq., is offered in which it is stated that Mr. Spagnuolo is the accountant who prepared plaintiff’s tax returns. Plaintiff also filed its Memorandum of Law in Support wherein it is stated plaintiff provided defendant with five years of federal and state tax returns. As the subject Subpoena concerns a non-party the relevant statute is CPLR 3102(a)(3) which states: § 3101. Scope of disclosure Currentness (a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. 1 1 of 6 2 5 FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 08:49 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 202 RECEIVED NYSCEF: 09/07/2023 09/06/2023 A review of the subject Subpoena Duces Tecum dated March 14, 2023, sets forth at paragraph 17 the incorrect time period applicable as being January 1, 2007. As set forth in the prior decision and Order of this Court (Motion Sequence #5) (Greenwald, J.) dated April 26, 2023, the correct time period applicable herein is from January 1, 2017. (Emphasis added). Plaintiff’s MOL starts off with an argument that plaintiff has standing to quash a subpoena on a non-party and continues with an argument that the subject Subpoena is “facially defective” and cites several cases. Note that the non-party herein, Mr. Spagnuolo, who has not objected to the subject subpoena, only recently filed five years of plaintiff’s tax returns with the IRS, literally simultaneously with providing these same documents to the defendant. The Court is of the opinion that the subject subpoena, that concerns only the above tax returns, and their creation is not “facially defective”. In any event that issue was resolved by the Court of Appeals in Kapon v. Koch, 23 N.Y.3d 32 (2014), which is referenced by defendant in its Memorandum of Law at page 9 as follows: Plaintiff’s argument is meritless. Plaintiff relies on Kooper v. Kooper, 74 A.D.3d 6 (2d Dep’t 2010), for the proposition that the Subpoena provides insufficient notice. (Moving Br. at 8.) In that case, the Second Department ruled that notice language in a subpoena was insufficient because it failed to show something “more than mere relevance,” which, in its view, was required for subpoenas to third parties under CPLR 3101(a)(4). Kooper, 74 A.D.3d at 18. Kooper’s holding, however, was expressly abrogated by the Court of Appeals in Kapon v. Koch, 23 N.Y.3d 32 (2014). In Kapon, the Court of Appeals rejected the test applied by Kooper and held that the standard to be applied on a motion to quash is simply whether the discovery sought is relevant. Kapon, 23 N.Y.3d at 38 (“We conclude that the ‘material and necessary’ standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state’s policy of liberal discovery.”). Harmonizing its holding with the notice requirement of CPLR 3101(a)(4), the Court of Appeals explained that “the subpoenaing party’s notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party, but, rather, was meant to apprise a stranger to the litigation the ‘circumstances or reasons’ why the requested disclosure was sought or required.” Id. at 39. The Court held that the subpoenaing party had only a “minimal obligation” to provide the subpoenaed party with “sufficient information to challenge the subpoenas on a motion to quash.” Id The Court agrees with defendant. The subject Subpoena certainly seeks to uncover information that is “material and necessary”, in light of plaintiff’s claims based upon his mental condition and the alleged affect it has had on his income. How can his income be evaluated properly without the backup for his recent tax returns being produced? However, the Court can reconcile and agrees with the plaintiff when it states at page 8 of its Memorandum of Law: 2 2 of 6 3 5 FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 08:49 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 202 RECEIVED NYSCEF: 09/07/2023 09/06/2023 “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.” Valdez v. Sharaby, 684 N.Y.S.2d 595, 258 AD2d 458 (2d Dep’t 1999) (emphasis added); Board of Education v. Hankins, 294 A.D.2d 360, 741 N.Y.S.2d 717 (2d Dep’t 2002 Again, plaintiff’s claim for $15M in damages is based upon allegations he has suffered mental anguish and emotional distress at the hands of the decedents. Rice claims his income has suffered due to this distress. Documents that are being sought by defendant in the subject subpoena have direct and specific information that could (or could not) support plaintiff’s claims. They are instrumental to the prosecution and defense of this action. Interestingly, it is not the non-party accountant who has objected to the subject subpoena, but the plaintiff and defendant focuses on this issue in its MOL at page 8 as follows: Plaintiff does not argue that the Subpoenaed Documents are protected by any privilege. Nor can he. New York does not recognize an accountant-client privilege. Peerenboom v. Marvel Ent., LLC, 148 A.D.3d 531, 532 (1st Dep’t 2017). Thus, “[a] client’s communications with its accountants are not afforded special protections under New York law and are subject to full disclosure.” 7 Carmody-Wait 2d N.Y. Practice with Forms § 42:174. Lastly, plaintiff claims the subject subpoena is a “fishing expedition”. It appears that the subject subpoena is a part of defendants’ quest to uncover, through means of court sanctioned discovery methods, what financial information could comprise plaintiff’s claim. Plaintiff claims in its Attorney’s Affirmation in Opposition to Defendant’s Cross Motion and In Further Support of Plaintiff’s Motion to Quash and/or Grant Protective Order a misuse of a quote from this Court’s April 26, 2023, Decision and Order: 22. It is Plaintiff’s contention that the subpoena duces tecum of nonparty Accountant Spagnuolo is “untimely, overly broad and unduly burdensome and potentially duplicative” of this Court’s Decision and Order dated April 26, 2023 The Court remains flattered but unmoved and disagrees with the plaintiff. DEFENDANT’S CROSS MOTION TO COMPEL (Motion Sequence #7) In opposition to plaintiff’s motion to quash, defendant filed a Cross Motion to Compel the Production of Documents and Things. Defendant seeks an order: pursuant to CPLR 3101 and CPLR 3124 compelling non-party Silvestro Spagnuolo to produce documents responsive to the Subpoena Duces Tecum, dated March 14, 2023, issued by Defendant in this action, and further compelling plaintiff Neil B. Rice (“Plaintiff”) to produce all documents in his possession, custody, or control that were transmitted to Spagnuolo by Plaintiff or his counsel or which were used to prepare the Tax Returns (as defined in the Memorandum of Law) or support the information therein, or, in the alternative, 3 3 of 6 4 5 FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 08:49 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 202 RECEIVED NYSCEF: 09/07/2023 09/06/2023 precluding Plaintiff from introducing evidence of damages at summary judgment or trial. It appears that plaintiff did not file income tax returns for the past five years because on March 6, 2023, plaintiff produced five years of tax returns at the same time he filed them (late?) with the IRS. Obviously, not only did defendant seek proof of plaintiff’s damages claim, but even plaintiff recognized he had no such available “proof”. The above filing and production of tax returns only confirms why defendant seeks to compel plaintiff to produce the above supporting documents. Either plaintiff can somehow support its claim for money damages, or he cannot. There is also the question of an identical deduction of $38,600 for medical expenses for each of the past five years. Defendant claims it needs the supporting backup documents and information from plaintiff to substantiate (or not) the claim for these medical expenses. It is curious why the amount claimed, $38,600 is identical for each of the past five years. Possibly this can be supported by the disclosure that defendant is seeking. The subject subpoena seeks only four categories of documents: 1. Copies of the Tax Returns [Spagnuolo] filed, prepared, or reviewed on behalf of Rice during the Period, and any drafts thereof. 2. [Spagnuolo’s] work papers associated with the Tax Returns. 3. Documents and communications upon which [Spagnuolo] relied or as to which [Spagnuolo] reviewed or referred in [Spagnuolo’s] filing, preparation, or review of the Tax Returns, including any notes, communications, and/or records which reflect the underlying information set forth in, or used to support, the Tax Returns. 4. Documents [Spagnuolo] received from or sent to, and communications with, Rice or any person acting on Rice’s behalf regarding the Tax Returns or in connection with a request by Rice for [Spagnuolo’s] services in filing, preparing, or reviewing the Tax Returns Defendant asserts that under the CPLR there shall be full discovery of matter that is “material and necessary” and claims that under 3101(a) this information has a bearing on the “controversy at issue” and “leads to discovery of information bearing on the claims”. Certainly, the above requests in the subject subpoena do just that. The plaintiff’s claims must be fully fleshed out and properly supported by the complete and current financial picture of the plaintiff. How else can a court or a jury determine what the damages in this action could be? Plaintiff proposes that the subject subpoena does not advise the non-party what is the reason for the requested documents being the subject of a subpoena. However, this is readily apparent from the four demands that are specified in the subject subpoena. By reason of all the foregoing it is 4 4 of 6 5 5 FILED: WESTCHESTER COUNTY CLERK 09/07/2023 10:34 08:49 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 203 202 RECEIVED NYSCEF: 09/07/2023 09/06/2023 ORDERED that plaintiff Motion (Motion Sequence #6) seeking an Order (1) quashing, fixing conditions, or modifying Defendant’s Subpoena Duces Tecum dated March 14, 2023, served upon Silvestro Spagnuolo c/o Spagnuolo Tax Serves LLC pursuant to CPLR §2304, or, alternatively having a protective order issued pursuant to CPLR 3103 is DENIED; and it is further, ORDERED that defendants Cross Motion (Motion Sequence #7)seeking an order pursuant to CPLR 3101 and CPLR 3124 compelling non-party Silvestro Spagnuolo to produce documents responsive to the Subpoena Duces Tecum, dated March 14, 2023, issued by Defendant in this action, and further compelling plaintiff Neil B. Rice (“Plaintiff”) to produce all documents in his possession, custody, or control that were transmitted to Spagnuolo by Plaintiff or his counsel or which were used to prepare the Tax Returns (as defined in the Memorandum of Law) or support the information therein, or, in the alternative, precluding Plaintiff from introducing evidence of damages at summary judgment or trial is GRANTED; and it is further, ORDERED that non-party Spagnuolo Tax Services LLC c/o Silvestro Spagnuolo shall comply with the Command set forth in the subject Subpoena Duces Tecum on or before October 20, 2023; and it is further. ORDERED that plaintiff Neil B. Rice shall comply with the Command set forth in the subject Subpoena DucesTecum on or before October 20, 2023; and it is further, ORDERED that failure to comply with the directives of the within Decision and Order may result in an Order precluding plaintiff from introducing damages at summary judgment or trial; and it is further. ORDERED that counsel is to appear before the Court for a status conference in Courtroom 1201, at the Courthouse 111 Dr. Martin Luther King, Jr., Blvd., White Plains New York on November 8, 2023, at 9:15am. Any relief not specifically granted herein is denied. The foregoing constitutes the decision and order of this Court. Dated: September 6, 2023 White Plains, New York ENTER: ____________________________ Hon. Hal B. Greenwald, J.S.C. Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that where the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. To: All Parties via NYSCEF 5 5 of 6 6 5