Preview
FILED: KINGS COUNTY CLERK 02/19/2020 02:58 PM INDEX NO. 503656/2015
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 02/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ALAD DANINO,
Plaintiffs,
Index No.: 503656/2015
-against-
AFFIRMATION IN SUPPORT
1526 48TH STREET LLC, RACHEL ROSNER,
TRUSTEE OF MK1-09 TRUST, MORDECHAI
LUGER, TRUSTEE OF MK1-09 TRUST,
JOSHUA RUBENSTEIN, JOSEPH a/k/a HESHY
LEITMAN, TOVYE HIRSCHFELD, MALKA
HIRSCHFELD and “JOHN DOE #3-10”, the last
ten names being fictitious and unknown to
Plaintiff, the persons or parties intended being the
persons or parties, if any, having or claiming an
interest in or lien upon the mortgage premises
described in the Complaint,
Defendants.
Steven A. Weg, an attorney duly admitted to practice law before the Courts of the State of
New York, affirms as follows under the penalties of perjury:
1. I am a member of Goldberg Weg & Markus PLLC, attorneys for defendant Rachel
Rosner, Trustee of MK1-09 Trust (the “Trust”) I make this affirmation in support of the instant
motion seeking an Order: (a) pursuant to CPLR §2304 and CPLR §3103, granting a protective
order quashing the “Trial Subpoena Duces Tecum and Ad Testificandum” served upon Rachel
Rosner, Trustee of MK1-09 Trust; (b) granting the legal fees and costs associated with making this
motion; and (c) for such other and further relief as to this Court seems just and proper.
BACKGROUND
2. The above captioned case is a foreclosure action commenced by Plaintiff Alad
Danino against the various defendants.
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3. Defendants Tovye Hirschfeld and Malka Hirschfeld moved this Court to dismiss
for lack of jurisdiction.
4. By Order dated October 29, 2019, the Court granted Tovye Hirschfeld and Malka
Hirschfeld’s motion to the extent of setting this matter down for a Traverse Hearing. A copy of
said Order is annexed hereto as Exhibit A.
5. This Court also issued a separate Order referring the Traverse Hearing with respect
to the issue of “service of summons and complaint on Tovya Hirschfeld and Malka Hirschfeld” to
a special referee or JHO. A copy of said Order is annexed hereto as Exhibit B.
6. The said hearing is currently scheduled for February 20, 2020.
7. Your affirmant’s firm, seemingly on behalf of the Trust, was served with a Trial
Subpoena Duces Tecum dated February 3, 2020, a copy of which is annexed hereto as Exhibit C
(hereinafter the “Subpoena”). The Trial Subpoena is both returnable before the Special Referee,
Part 82, Room 482 at the Kings County Courthouse (see page 1) and to the Subpoenaed Records
Room on the sixth floor of the Kings County Courthouse (see page 2).
8. For the reasons set forth below, the Subpoena should be quashed.
ARGUMENT
A. The Subpoena Is Defective for Failure to Tender a Witness Fee
9. CPLR 2303(a) provides that “Any person subpoenaed shall be paid or tendered in
advance authorized traveling expenses and one day's witness fee.” No witness fee was provided
together with the Subpoena.
10. In fact, the title of CPLR 2303 is “Service of subpoena; payment of fee in advance.”
As of the date of this motion, the witness fee has certainly not been paid in “advance.”
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11. A subpoena that is served without a witness fee is not enforceable. Bobrowsky v.
Bozzuti, 98 A.D.2d 700, 702, 469 N.Y.S.2d 96, 98 (2nd Dept. 1983); see also, Jaggars v. Scholeno,
6 A.D.3d 1130, 1131, 776 N.Y.S.2d 684, 684 (4th Dept. 2004).
12. Accordingly, the subpoena is defective and should be quashed.
B. The Documents Requested Are Not Materially Necessary
13. A subpoena must contain or be accompanied by “a notice stating the circumstances
or reasons such disclosure is sought or required” as is set forth in CPLR §3101(a)(4); See also,
Kapon v. Koch, 23 N.Y.3d 32, 39, 988 N.Y.S.2d 559, 565 (2014)
14. “The purpose of such requirement is presumably to afford a nonparty who has no
idea of the parties’ dispute or a party affected by such request an opportunity to decide how to
respond.” Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 110, 811 N.Y.S.2d 5, 9 (1st
Dept. 2006).
15. A subpoena that does not contain a notice why such disclosure is required is
“facially defective.” Needleman v. Tornheim, 88 A.D.3d 773, 930 N.Y.S.2d 896 (2nd Dept. 2011)
(holding that Supreme Court properly quashed facially defective non-party subpoena lacking
requisite notice); see also, Am. Exp. Prop. Cas. Co. v. Vinci, 63 A.D.3d 1055, 1056, 881 N.Y.S.2d
484 (2nd Dept. 2009) (“Further, the Supreme Court properly determined that the subpoena duces
tecum served by the appellant was facially defective because it neither contained nor was
accompanied by a notice stating the ‘circumstances or reasons such disclosure is . . . required’. .
.”)(quoting CPLR 3104(a)(4)); De Stafano v. MT Health Clubs, Inc., 220 A.D.2d 331, 632
N.Y.S.2d 569 (1st Dept. 1995) (holding a subpoena lacking requisite notice is facially defective).
16. Here, the subpoena served upon your affirmant as counsel for the Trust does not
contain any notice as to its purpose, does not contain any indication what the documents or
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testimony requested has to do with Plaintiff’s burden at the scheduled hearing, and lacks any
indication that the requested documents are relevant to the hearing.
17. Even if the Subpoena did contain notice, it is respectfully posited that the Subpoena
has no relevance to the hearing. A plaintiff’s burden at a Traverse Hearing is “to establish, by a
preponderance of the evidence, that service was properly effectuated.” Steuhl v. CRD Metalworks,
LLC, 159 A.D.3d 1182, 1183, 73 N.Y.S.3d 259, 261 (3rd Dept. 2018). The Trust documents have
nothing to do with whether or not Tovye Hirschfeld and/or Malka Hirschfeld was property served.
18. The requested documents are the “entire MK1-09 Trust including any amendments
thereto and any documents related to said trust indicating the identity of the beneficiaries.” These
documents have absolutely nothing to do with whether service was properly effectuated upon
Tovye Hirschfeld and Malka Hirschfeld.
19. Plaintiff is simply seeking to burden the Trustee with unnecessary work by
requesting that she produce Trust documents that have no relevance to the Traverse Hearing.1 The
Trust documents are “utterly irrelevant” and the Subpoena should be quashed. Kapon v. Koch, 23
N.Y.3d 32, 34, 11 N.E.3d 709, 711 (2014).
WHEREFORE, it is respectfully requested that this Court issue a protective order and
quash the Subpoena.
Dated: New York, New York
February 19, 2020
/s/ Steven A. Weg
Steven A. Weg
1
Your affirmant was made aware not long ago that the trustee of the Trust was hospitalized with a serious illness.
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Preview
FILED: KINGS COUNTY CLERK 02/19/2020 02:58 PM INDEX NO. 503656/2015 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 02/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ALAD DANINO, Plaintiffs, Index No.: 503656/2015 -against- AFFIRMATION IN SUPPORT 1526 48TH STREET LLC, RACHEL ROSNER, TRUSTEE OF MK1-09 TRUST, MORDECHAI LUGER, TRUSTEE OF MK1-09 TRUST, JOSHUA RUBENSTEIN, JOSEPH a/k/a HESHY LEITMAN, TOVYE HIRSCHFELD, MALKA HIRSCHFELD and “JOHN DOE #3-10”, the last ten names being fictitious and unknown to Plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the Complaint, Defendants. Steven A. Weg, an attorney duly admitted to practice law before the Courts of the State of New York, affirms as follows under the penalties of perjury: 1. I am a member of Goldberg Weg & Markus PLLC, attorneys for defendant Rachel Rosner, Trustee of MK1-09 Trust (the “Trust”) I make this affirmation in support of the instant motion seeking an Order: (a) pursuant to CPLR §2304 and CPLR §3103, granting a protective order quashing the “Trial Subpoena Duces Tecum and Ad Testificandum” served upon Rachel Rosner, Trustee of MK1-09 Trust; (b) granting the legal fees and costs associated with making this motion; and (c) for such other and further relief as to this Court seems just and proper. BACKGROUND 2. The above captioned case is a foreclosure action commenced by Plaintiff Alad Danino against the various defendants. 1 of 4 FILED: KINGS COUNTY CLERK 02/19/2020 02:58 PM INDEX NO. 503656/2015 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 02/19/2020 3. Defendants Tovye Hirschfeld and Malka Hirschfeld moved this Court to dismiss for lack of jurisdiction. 4. By Order dated October 29, 2019, the Court granted Tovye Hirschfeld and Malka Hirschfeld’s motion to the extent of setting this matter down for a Traverse Hearing. A copy of said Order is annexed hereto as Exhibit A. 5. This Court also issued a separate Order referring the Traverse Hearing with respect to the issue of “service of summons and complaint on Tovya Hirschfeld and Malka Hirschfeld” to a special referee or JHO. A copy of said Order is annexed hereto as Exhibit B. 6. The said hearing is currently scheduled for February 20, 2020. 7. Your affirmant’s firm, seemingly on behalf of the Trust, was served with a Trial Subpoena Duces Tecum dated February 3, 2020, a copy of which is annexed hereto as Exhibit C (hereinafter the “Subpoena”). The Trial Subpoena is both returnable before the Special Referee, Part 82, Room 482 at the Kings County Courthouse (see page 1) and to the Subpoenaed Records Room on the sixth floor of the Kings County Courthouse (see page 2). 8. For the reasons set forth below, the Subpoena should be quashed. ARGUMENT A. The Subpoena Is Defective for Failure to Tender a Witness Fee 9. CPLR 2303(a) provides that “Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee.” No witness fee was provided together with the Subpoena. 10. In fact, the title of CPLR 2303 is “Service of subpoena; payment of fee in advance.” As of the date of this motion, the witness fee has certainly not been paid in “advance.” 2 2 of 4 FILED: KINGS COUNTY CLERK 02/19/2020 02:58 PM INDEX NO. 503656/2015 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 02/19/2020 11. A subpoena that is served without a witness fee is not enforceable. Bobrowsky v. Bozzuti, 98 A.D.2d 700, 702, 469 N.Y.S.2d 96, 98 (2nd Dept. 1983); see also, Jaggars v. Scholeno, 6 A.D.3d 1130, 1131, 776 N.Y.S.2d 684, 684 (4th Dept. 2004). 12. Accordingly, the subpoena is defective and should be quashed. B. The Documents Requested Are Not Materially Necessary 13. A subpoena must contain or be accompanied by “a notice stating the circumstances or reasons such disclosure is sought or required” as is set forth in CPLR §3101(a)(4); See also, Kapon v. Koch, 23 N.Y.3d 32, 39, 988 N.Y.S.2d 559, 565 (2014) 14. “The purpose of such requirement is presumably to afford a nonparty who has no idea of the parties’ dispute or a party affected by such request an opportunity to decide how to respond.” Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 110, 811 N.Y.S.2d 5, 9 (1st Dept. 2006). 15. A subpoena that does not contain a notice why such disclosure is required is “facially defective.” Needleman v. Tornheim, 88 A.D.3d 773, 930 N.Y.S.2d 896 (2nd Dept. 2011) (holding that Supreme Court properly quashed facially defective non-party subpoena lacking requisite notice); see also, Am. Exp. Prop. Cas. Co. v. Vinci, 63 A.D.3d 1055, 1056, 881 N.Y.S.2d 484 (2nd Dept. 2009) (“Further, the Supreme Court properly determined that the subpoena duces tecum served by the appellant was facially defective because it neither contained nor was accompanied by a notice stating the ‘circumstances or reasons such disclosure is . . . required’. . .”)(quoting CPLR 3104(a)(4)); De Stafano v. MT Health Clubs, Inc., 220 A.D.2d 331, 632 N.Y.S.2d 569 (1st Dept. 1995) (holding a subpoena lacking requisite notice is facially defective). 16. Here, the subpoena served upon your affirmant as counsel for the Trust does not contain any notice as to its purpose, does not contain any indication what the documents or 3 3 of 4 FILED: KINGS COUNTY CLERK 02/19/2020 02:58 PM INDEX NO. 503656/2015 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 02/19/2020 testimony requested has to do with Plaintiff’s burden at the scheduled hearing, and lacks any indication that the requested documents are relevant to the hearing. 17. Even if the Subpoena did contain notice, it is respectfully posited that the Subpoena has no relevance to the hearing. A plaintiff’s burden at a Traverse Hearing is “to establish, by a preponderance of the evidence, that service was properly effectuated.” Steuhl v. CRD Metalworks, LLC, 159 A.D.3d 1182, 1183, 73 N.Y.S.3d 259, 261 (3rd Dept. 2018). The Trust documents have nothing to do with whether or not Tovye Hirschfeld and/or Malka Hirschfeld was property served. 18. The requested documents are the “entire MK1-09 Trust including any amendments thereto and any documents related to said trust indicating the identity of the beneficiaries.” These documents have absolutely nothing to do with whether service was properly effectuated upon Tovye Hirschfeld and Malka Hirschfeld. 19. Plaintiff is simply seeking to burden the Trustee with unnecessary work by requesting that she produce Trust documents that have no relevance to the Traverse Hearing.1 The Trust documents are “utterly irrelevant” and the Subpoena should be quashed. Kapon v. Koch, 23 N.Y.3d 32, 34, 11 N.E.3d 709, 711 (2014). WHEREFORE, it is respectfully requested that this Court issue a protective order and quash the Subpoena. Dated: New York, New York February 19, 2020 /s/ Steven A. Weg Steven A. Weg 1 Your affirmant was made aware not long ago that the trustee of the Trust was hospitalized with a serious illness. 4 4 of 4