Preview
INDEX NO. 652637/2013
FILED: NEW YORK COUNTY CLERK 12/03/2015 05:18 PM
NYSCEF DOC. NO. 294 RECEIVED NYSCEF 12/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-X
BRANDSWAY HOSPITALITY, LL! alk/a Index No. 652637/2013
BRANDSWAY HOSPITALITY , INDIEFORK, LLC
And MATTHEW LEVINE,
Plaintiffs,
-against-
DELSHAH CAPITAL LLC, MICHAEL K. SHAH,
and VICTOR JUNG
Defendants.
ween ene e nnn neem en nenenennnenennnnnaemennnnennnnenannnnennnennn
DEFENDANTS’ MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO QUASH
Dated: December 3, 2015
Garden City, New York
Cordova & Schwartzman, LLP
Attorneys for DELSHAH CAPITAL LLC and
MICHAEL K. SHAH
666 Old Country Road, Suite 700
Garden City, New York 11530
(516)741-0070
INTRODUCTION
This motion by Defendants DELSHAH CAPITAL LLC and MICHAEL K.
SHAH (collectively, “Defendants”) to quash a subpoena duces fecum served upon JP
Morgan Chase Bank (“Chase Bank”), arises from a restaurant management agreement
entered into between Plaintiff Brandsway Hospitality, LLC and Defendant Delshah
Capital, LLC, (“Delshah Capital”) which was terminated by Delshah Capital due to
Plaintiff's failure to meet specific financial performance goals and for theft and
dishonesty.
By subpoena duces tecum dated November 16, 2015, addressed to Chase Bank,
Plaintiffs sough the bank records of Essex Restaurant LLC, IndieFork LLC, 19 Stanton
Restaurant LLC, and 61 Gans Restaurant LLC. A copy of the subpoena duces tecum is
annexed hereto as Exhibit A. Defendants now move to quash the subpoena on the ground
that the subpoena is facially defective, that the subpoena fails to specify the particular
documents sought thereby, that Plaintiffs can obtain the relevant information from other
sources; and that the subpoena seeks documents that are personal and confidential in
nature.
RELEVANT FACTS
I Sons of Essex.
Briefly, in or about November of 2010, Defendant Black Label Residential LLC,
a company owned by the Defendant Michael Shah, purchased at foreclosure the retail
condominium space at 133 Essex Street in Manhattan. At that time Defendant Michael
Shah formed Defendant 133 Essex Restaurant, LLC which purchased all of the assets ofa
bar which occupied the space, including its liquor license, for $300,000. Thereafter, Mr.
Shah began to explore the possibility of opening his own bar/restaurant and he decided to
hire a manager for the potential enterprise. After numerous interviews, Defendant
Delshah Capital entered into a Management and Operations Agreement (the
“Management Agreement”) with Plaintiff Brandsway Hospitality, LLC (“Brandsway”)
—not Plaintiff Levine-- to operate the bar/restaurant.
Thereafter, between loans and direct capital contributions, Mr. Shah spent well in
excess of one million dollars building the restaurant that is now known as “Sons of
Essex” (the “Restaurant”). Plaintiffs did not contribute any money to the Restaurant.
However, in April, 2013, Delshah Capital terminated the Management Agreement
“for cause” because the Restaurant failed to achieve certain required financial metrics and
Mr. Shah discovered certain thefts and mismanagement by Plaintiffs.
Unfortunately, Plaintiff Levine refused to accept the termination, and, instead, he
went to the Restaurant with his attorneys where he began “firing” the Restaurant’s
employees. Worse, he tried to steal the Restaurant's liquor license, which would have
effectively put the Restaurant out of business!’ Fortunately, the Restaurant’s staff called
the police, who prevented Levine from removing the liquor license. Thereafter, by Order
to Show Cause dated May 6, 2013, Delshah Capital sought, and was granted, a temporary
restraining order against Levine.”
II. The other restaurants.
In addition to the Sons of Essex Restaurant, Mr. Shah (through his company,
Defendant 19 Stanton Street, LLC) purchased the building located at 19 Stanton Street,
' The liquor license was an asset of the previous tenant, which assets Mr. Shah bought for $300,000.
2 133 Essex Restaurant, LLC v. Brandsway Hospitality, Supreme Court, New York County, Index No.
651629/2013.
New York, New York. Once again, Mr. Shah’s company paid all the costs
(approximately $725,000) associated with the build out and creation ofa bar/restaurant
on the first floor known as the Cocktail Bodega as well as the bar/restaurant located in the
basement known as Cocktail Bodega Underground.
Finally, Mr. Shah (through his company Defendant Griffon Gansevoort Holdings,
LLC) purchased the property located at 53-61 Gansevoort, in the meatpacking district of
Manhattan. Once again, Mr. Shah’s company paid all of the costs associated with the
creation and build out of restaurants/bars at this location, including the Rowhouse Inn.
Unfortunately, all of these restaurants failed within a two year period, causing
significant financial losses to Mr. Shah and his companies.
I. The Instant Action and the motions to dismiss/correct the pleadings.
On July 26, 2013, Plaintiffs filed a 240 page complaint against Mr. Shah and
forty-plus other parties, including almost every entity Mr. Shah has an interest in,
regardless of whether Plaintiffs had any dealings with those entities. However, because
the filed complaint contained multiple statements of fact, evidentiary material, and
scandalous allegations, Defendants moved to strike the first filed complaint. However,
prior to the return date of the motion, Plaintiffs filed an Amended Complaint.
Nonetheless, because the Amended Complaint similarly failed to comply with the rules
of pleading, Defendants again moved pursuant to CPLR §§ 3013, 3014 and 3024 to
strike, in whole or in part, the Amended Complaint. On May 12, 2014, the parties
appeared before the Court for oral argument on the Moving Defendants’ motion, at which
time the Court granted the motion on the record.
Vv. The motions to dismiss.
After Plaintiffs filed a Second Amended Complaint containing twenty-two causes
of action against twenty-five or so defendants, the Moving Defendants moved to dismiss
the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Fourteenth, Twenty-First and Twenty-Second Causes of Action in the Second Amended
Complaint. The co-defendants also filed cross-motions to dismiss.
By Order dated August 6, 2015, the Court dismissed the First and Third Causes of
Action, in part, and the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Twelfth, Thirteenth, Fourteenth, Twenty-First and Twenty-Second Causes of
Action in the Second Amended Complaint. A copy of the Court’s Order dated August 6,
2015 is annexed hereto as Exhibit B.
Vi. The March 2015 subpoena.
Despite the fact that the motions to dismiss were pending, thus, leaving the “final”
causes of action uncertain, by subpoena duces tecum dated March 9, 2015, served upon
non-party JP Morgan Chase Bank, Plaintiffs sough the bank records of Essex Restaurant
LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. By
Decision and Order dated June 22, 2015, the Court, on motion, quashed this subpoena.
VI. The November 2015 subpoena.
Despite the fact that the March 2015 subpoena was quashed, Plaintiffs now again
serve non-party JP Morgan Chase Bank with a subpoena (the “Subpoena”) seeking not
only the bank records of Essex Restaurant LLC, but also the bank records of IndieFork
LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC, which have previously
been dismissed from this action on motion. See, Ex. A.
Defendants now move to quash the subpoena on the ground that the subpoena is
facially defective, that the subpoena fails to specify the particular documents sought
thereby, that Plaintiffs can obtain the relevant information from other sources; and that
the subpoena seeks documents that are personal and confidential in nature.
ARGUMENT
I The Subpoena should be quashed as Plaintiffs fail to
set forth the requisite circumstances for the Subpoena.
Pursuant to CPLR §3101(a)(4) there shall be full disclosure from a non-party
“upon notice stating the circumstances or reasons such disclosure is sought or required.”
The failure to set forth the circumstances or reasons such disclosure is sought or required
renders a subpoena facially defective. Matter of Kapon v. Koch, 23 N.Y.3d 32, 34; 988
N.Y.S.2d 559 (2014) (“We conclude that the subpoenaing party must first sufficiently
state the circumstances or reasons underlying the subpoena. . . .”)(internal quotations
omitted); De Stafano v. MT Health Clubs, Inc., 220 A.D.2d 331; 632 N.Y.S.2d 569 (1*
Dept. 1995)(“The subpoenas duces tecum . . . were facially defective for failure to state
the circumstances or reasons such disclosure is sought or required, as required by CPLR
3101(a)(4).”) (internal quotations omitted); Matter of American Express Prop. Cas. Co. v.
Vinci, 63 A.D.3d 1055, 1056; 881 N.Y.S.2d 484 (2d Dep't 2009) (“[T]he 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.”) (internal quotations omitted).
Here, fairly stated, Plaintiffs set forth a narrative of their purported claims again
Defendants. See, Ex. A, page 2. Then, in an attempt to justify their subpoena, Plaintiffs
claim that
The subpoenaed documents are relevant to Plaintiffs’ claims because they can,
and likely will, show that Defendants systematically used accounts in Levine's
name for, among other things fraud and breach of contract, and that the money
trail that Defendants left will demonstrate the extent of the malfeasance
perpetrated in this case.
See, Ex A., page 3 (emphasis added).
Importantly, other than these purported reasons, Plaintiffs fail to state in any
manner or detail the “circumstances or reasons” underlying the Subpoena. See, Ex A.
No facts or reason are set forth detailing why such disclosure is sought or required, or
how the bank documents sought relate to the action.
Furthermore, the purported “reasons” set forth by Plaintiffs fail on their face.
Plaintiffs claim that Defendants allegedly opened accounts “in Levine’s name.” See, Ex
A., page 3 (emphasis added). However, Plaintiffs fail to state how the bank records of
Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans
Restaurant LLC are relevant. Simply stated, if these purported secret accounts were
opened in Levine's name, the Subpoena would seek documents for accounts in Levine's
name, not in the name of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant
LLC, and 61 Gans Restaurant LLC. Plaintiffs’ statement is a disingenuous attempt to
state some—any—circumstances to justify the Subpoena, especially for the bank records
of the non-party entities.
Furthermore, after the motion to dismiss, there are only two claims left in this
action: first, a breach of contract claim premised upon Delshah Capital’s purported
breach of the management Agreement in issue. Second, a fraud claim premised upon
“plaintiffs” claim that Shah and Jung, solely in their respective individual capacities,
represented to Levine that Levine was to become a 50% partner in a new umbrella entity.
Indiefork LLC.” See, Ex B, page 4 (dismissing, in part, Plaintiffs’ Third Cause of Action
for fraud).
Thus, there is no “fraud claim” which Plaintiffs need any evidence to “show that
Defendants systematically used accounts in Levine’s name for, among other things
fraud.” See, Ex. A, page 3. Tellingly, other than using the terms “breach of contract”
and “fraud”, Plaintiffs fail to specify how these documents are needed for their two
remaining causes of action.
Clearly, Plaintiffs’ purported need for these documents—three of the entities are
no longer defendants in this action—is contrived and is belied by their own statement and
the remaining claims in this action. Accordingly, as the Subpoena is defective for failing
to set forth the required circumstances or reasons underlying the Subpoena, it should be
quashed.
Il. The Subpoenas should be quashed as Plaintiffs fail
to specify the documents they seek.
The Subpoena must also be quashed as it does not seek specific documents, but,
rather, the Subpoena is nothing more than a “fishing expedition” designed to harass
Defendants.
“[A] subpoena duces tecum may not be used for the purpose of discovery or to
ascertain the existence of evidence. Rather, its purpose is to compel the production of
specific documents that are relevant and material to facts at issue in a pending judicial
proceeding.” In the Matter of Terry D., 81 N.Y.2d 1042; 601 N.Y.S.2d 452 (1993)
(internal citations omitted). A “subpoena must set forth what is sought with some degree
of clarity.” In the Matter of Reuters Limited v. Dow Jones Telerate, Inc., 231 A.D.2d
337: 662 N.Y.S.2d 450 (1% Dept. 1997). The Court should not “permit the subpoena
power to be used as a tool of harassment or for the proverbial "fishing expedition" to
ascertain the existence of evidence.” Id. at 342.
Here, the Subpoena requires the production of all “Account statements (including
any check images), and wire transfers” of Essex Restaurant LLC, IndieFork LLC, 19
Stanton Restaurant LLC, and 61 Gans Restaurant LLC. See, Ex. A. There is no list of
specific documents sought by Plaintiffs. Thus, it is obvious that Plaintiffs are not using
the Subpoena to obtain “specific documents,” but rather, Plaintiffs are simply using the
Subpoena in a blunderbuss approach to obtain documents, which is improper. Kantor v.
Kaye, 114 A.D.2d 782; 495 N.Y.S.2d 42 (Ist Dep't 1985) (“The use of the descriptions,
"any", "all" or "any and all" renders the notice for discovery and inspection? improper.”).
Tellingly, no particular document is sought and Plaintiffs fail to set forth why any of the
classes of listed documents are sought. Clearly, the Subpoena constitutes nothing more
than a "fishing expedition." The Court should not countenance such behavior and the
Subpoena should be quashed.
Hil. Plaintiff can obtain the relevant documents from other sources.
In addition, it must be noted that Plaintiff can obtain the relevant documents* from
sources other than non-party Chase Bank. Accordingly, the subpoena should be quashed
for this reason. Schorr v. Schorr, 113 A.D.3d 490, 491; 978 N.Y.S.2d 683 (Ist Dep't
2014) (“The court providently exercised its discretion in granting the motion to quash the
3 While the Kantor case deals with a notice of discovery and inspection, rather than, as here, a subpoena
duces tecum, both are governed by CPLR §3120.
+ Certainly the private bank documents of the three non-parties IndieFork LLC, 19 Stanton Restaurant LLC,
and 61 Gans Restaurant LLC are not relevant to this action. Furthermore, while certain Essex Restaurant
LLC documents may be relevant to this action, Plaintiffs fail to specify any particular documents in the
Subpoena so as to make that determination.
subpoenas. Defendant failed to show that he could not obtain the information sought in
the course of depositions of plaintiff
or other sources.”).
IV. The Subpoena seeks documents which
are personal and confidential in nature.
Finally, Plaintiffs seek documents from Chase Bank regarding the bank accounts
of the three non-parties IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans
Restaurant LLC. Not some documents; ail of their “account statements.” However, “Tal
disclosure request is palpably improper if it seeks information of a confidential and
private nature that does not appear to be relevant to the issues in the case.” Aitleserv,
Titleserv, Inc.
Inc.
v. Zenobio, 210 A.D.2d 314; 619 N.Y.S.2d 769 (2"4 Dept. 1994). Here, other than stating
that the documents “can” show that Defendants purported used accounts in Levine’s
name, (see, Ex. A., page 3)(emphasis added) Plaintiffs make no particularized showing
that the documents sought are relevant to their claims, nor do they explain why they
purportedly need documents through the time period August 30, 2013, when Plaintiffs
were terminated in April, 2013, months earlier. However, it is clear that the information
regarding the personal bank accounts of these non-party entities is of a private and
confidential nature, and accordingly, these documents should not be produced.
A Court should not “permit the subpoena power to be used as a tool of harassment
or for the proverbial "fishing expedition" to ascertain the existence of evidence.” In the
Matter of Reuters Limited, supra, 231 A.D.2d at 344. Here, there exists a great deal of
animosity between Defendants and Plaintiffs. This subpoena is obviously an attempt by
Plaintiffs to annoy and harass Mr. Shah by seeking his companies’ bank records on an
obviously contrived basis. Accordingly, this Subpoena should be quashed.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant
this motion in its entirety, and quash the Subpoena.
Dated: December 3, 2015
Garden City, New York
a
YO
Zz
Joy B. Schwartzman, Esq.
lova & Schwartzman, LLP
£666 Old Country Road, Suite 700
Garden City, New York 11530
(516)741-0070
10
Preview
INDEX NO. 652637/2013 FILED: NEW YORK COUNTY CLERK 12/03/2015 05:18 PM NYSCEF DOC. NO. 294 RECEIVED NYSCEF 12/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -X BRANDSWAY HOSPITALITY, LL! alk/a Index No. 652637/2013 BRANDSWAY HOSPITALITY , INDIEFORK, LLC And MATTHEW LEVINE, Plaintiffs, -against- DELSHAH CAPITAL LLC, MICHAEL K. SHAH, and VICTOR JUNG Defendants. ween ene e nnn neem en nenenennnenennnnnaemennnnennnnenannnnennnennn DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO QUASH Dated: December 3, 2015 Garden City, New York Cordova & Schwartzman, LLP Attorneys for DELSHAH CAPITAL LLC and MICHAEL K. SHAH 666 Old Country Road, Suite 700 Garden City, New York 11530 (516)741-0070 INTRODUCTION This motion by Defendants DELSHAH CAPITAL LLC and MICHAEL K. SHAH (collectively, “Defendants”) to quash a subpoena duces fecum served upon JP Morgan Chase Bank (“Chase Bank”), arises from a restaurant management agreement entered into between Plaintiff Brandsway Hospitality, LLC and Defendant Delshah Capital, LLC, (“Delshah Capital”) which was terminated by Delshah Capital due to Plaintiff's failure to meet specific financial performance goals and for theft and dishonesty. By subpoena duces tecum dated November 16, 2015, addressed to Chase Bank, Plaintiffs sough the bank records of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. A copy of the subpoena duces tecum is annexed hereto as Exhibit A. Defendants now move to quash the subpoena on the ground that the subpoena is facially defective, that the subpoena fails to specify the particular documents sought thereby, that Plaintiffs can obtain the relevant information from other sources; and that the subpoena seeks documents that are personal and confidential in nature. RELEVANT FACTS I Sons of Essex. Briefly, in or about November of 2010, Defendant Black Label Residential LLC, a company owned by the Defendant Michael Shah, purchased at foreclosure the retail condominium space at 133 Essex Street in Manhattan. At that time Defendant Michael Shah formed Defendant 133 Essex Restaurant, LLC which purchased all of the assets ofa bar which occupied the space, including its liquor license, for $300,000. Thereafter, Mr. Shah began to explore the possibility of opening his own bar/restaurant and he decided to hire a manager for the potential enterprise. After numerous interviews, Defendant Delshah Capital entered into a Management and Operations Agreement (the “Management Agreement”) with Plaintiff Brandsway Hospitality, LLC (“Brandsway”) —not Plaintiff Levine-- to operate the bar/restaurant. Thereafter, between loans and direct capital contributions, Mr. Shah spent well in excess of one million dollars building the restaurant that is now known as “Sons of Essex” (the “Restaurant”). Plaintiffs did not contribute any money to the Restaurant. However, in April, 2013, Delshah Capital terminated the Management Agreement “for cause” because the Restaurant failed to achieve certain required financial metrics and Mr. Shah discovered certain thefts and mismanagement by Plaintiffs. Unfortunately, Plaintiff Levine refused to accept the termination, and, instead, he went to the Restaurant with his attorneys where he began “firing” the Restaurant’s employees. Worse, he tried to steal the Restaurant's liquor license, which would have effectively put the Restaurant out of business!’ Fortunately, the Restaurant’s staff called the police, who prevented Levine from removing the liquor license. Thereafter, by Order to Show Cause dated May 6, 2013, Delshah Capital sought, and was granted, a temporary restraining order against Levine.” II. The other restaurants. In addition to the Sons of Essex Restaurant, Mr. Shah (through his company, Defendant 19 Stanton Street, LLC) purchased the building located at 19 Stanton Street, ' The liquor license was an asset of the previous tenant, which assets Mr. Shah bought for $300,000. 2 133 Essex Restaurant, LLC v. Brandsway Hospitality, Supreme Court, New York County, Index No. 651629/2013. New York, New York. Once again, Mr. Shah’s company paid all the costs (approximately $725,000) associated with the build out and creation ofa bar/restaurant on the first floor known as the Cocktail Bodega as well as the bar/restaurant located in the basement known as Cocktail Bodega Underground. Finally, Mr. Shah (through his company Defendant Griffon Gansevoort Holdings, LLC) purchased the property located at 53-61 Gansevoort, in the meatpacking district of Manhattan. Once again, Mr. Shah’s company paid all of the costs associated with the creation and build out of restaurants/bars at this location, including the Rowhouse Inn. Unfortunately, all of these restaurants failed within a two year period, causing significant financial losses to Mr. Shah and his companies. I. The Instant Action and the motions to dismiss/correct the pleadings. On July 26, 2013, Plaintiffs filed a 240 page complaint against Mr. Shah and forty-plus other parties, including almost every entity Mr. Shah has an interest in, regardless of whether Plaintiffs had any dealings with those entities. However, because the filed complaint contained multiple statements of fact, evidentiary material, and scandalous allegations, Defendants moved to strike the first filed complaint. However, prior to the return date of the motion, Plaintiffs filed an Amended Complaint. Nonetheless, because the Amended Complaint similarly failed to comply with the rules of pleading, Defendants again moved pursuant to CPLR §§ 3013, 3014 and 3024 to strike, in whole or in part, the Amended Complaint. On May 12, 2014, the parties appeared before the Court for oral argument on the Moving Defendants’ motion, at which time the Court granted the motion on the record. Vv. The motions to dismiss. After Plaintiffs filed a Second Amended Complaint containing twenty-two causes of action against twenty-five or so defendants, the Moving Defendants moved to dismiss the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Fourteenth, Twenty-First and Twenty-Second Causes of Action in the Second Amended Complaint. The co-defendants also filed cross-motions to dismiss. By Order dated August 6, 2015, the Court dismissed the First and Third Causes of Action, in part, and the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Twenty-First and Twenty-Second Causes of Action in the Second Amended Complaint. A copy of the Court’s Order dated August 6, 2015 is annexed hereto as Exhibit B. Vi. The March 2015 subpoena. Despite the fact that the motions to dismiss were pending, thus, leaving the “final” causes of action uncertain, by subpoena duces tecum dated March 9, 2015, served upon non-party JP Morgan Chase Bank, Plaintiffs sough the bank records of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. By Decision and Order dated June 22, 2015, the Court, on motion, quashed this subpoena. VI. The November 2015 subpoena. Despite the fact that the March 2015 subpoena was quashed, Plaintiffs now again serve non-party JP Morgan Chase Bank with a subpoena (the “Subpoena”) seeking not only the bank records of Essex Restaurant LLC, but also the bank records of IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC, which have previously been dismissed from this action on motion. See, Ex. A. Defendants now move to quash the subpoena on the ground that the subpoena is facially defective, that the subpoena fails to specify the particular documents sought thereby, that Plaintiffs can obtain the relevant information from other sources; and that the subpoena seeks documents that are personal and confidential in nature. ARGUMENT I The Subpoena should be quashed as Plaintiffs fail to set forth the requisite circumstances for the Subpoena. Pursuant to CPLR §3101(a)(4) there shall be full disclosure from a non-party “upon notice stating the circumstances or reasons such disclosure is sought or required.” The failure to set forth the circumstances or reasons such disclosure is sought or required renders a subpoena facially defective. Matter of Kapon v. Koch, 23 N.Y.3d 32, 34; 988 N.Y.S.2d 559 (2014) (“We conclude that the subpoenaing party must first sufficiently state the circumstances or reasons underlying the subpoena. . . .”)(internal quotations omitted); De Stafano v. MT Health Clubs, Inc., 220 A.D.2d 331; 632 N.Y.S.2d 569 (1* Dept. 1995)(“The subpoenas duces tecum . . . were facially defective for failure to state the circumstances or reasons such disclosure is sought or required, as required by CPLR 3101(a)(4).”) (internal quotations omitted); Matter of American Express Prop. Cas. Co. v. Vinci, 63 A.D.3d 1055, 1056; 881 N.Y.S.2d 484 (2d Dep't 2009) (“[T]he 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.”) (internal quotations omitted). Here, fairly stated, Plaintiffs set forth a narrative of their purported claims again Defendants. See, Ex. A, page 2. Then, in an attempt to justify their subpoena, Plaintiffs claim that The subpoenaed documents are relevant to Plaintiffs’ claims because they can, and likely will, show that Defendants systematically used accounts in Levine's name for, among other things fraud and breach of contract, and that the money trail that Defendants left will demonstrate the extent of the malfeasance perpetrated in this case. See, Ex A., page 3 (emphasis added). Importantly, other than these purported reasons, Plaintiffs fail to state in any manner or detail the “circumstances or reasons” underlying the Subpoena. See, Ex A. No facts or reason are set forth detailing why such disclosure is sought or required, or how the bank documents sought relate to the action. Furthermore, the purported “reasons” set forth by Plaintiffs fail on their face. Plaintiffs claim that Defendants allegedly opened accounts “in Levine’s name.” See, Ex A., page 3 (emphasis added). However, Plaintiffs fail to state how the bank records of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC are relevant. Simply stated, if these purported secret accounts were opened in Levine's name, the Subpoena would seek documents for accounts in Levine's name, not in the name of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. Plaintiffs’ statement is a disingenuous attempt to state some—any—circumstances to justify the Subpoena, especially for the bank records of the non-party entities. Furthermore, after the motion to dismiss, there are only two claims left in this action: first, a breach of contract claim premised upon Delshah Capital’s purported breach of the management Agreement in issue. Second, a fraud claim premised upon “plaintiffs” claim that Shah and Jung, solely in their respective individual capacities, represented to Levine that Levine was to become a 50% partner in a new umbrella entity. Indiefork LLC.” See, Ex B, page 4 (dismissing, in part, Plaintiffs’ Third Cause of Action for fraud). Thus, there is no “fraud claim” which Plaintiffs need any evidence to “show that Defendants systematically used accounts in Levine’s name for, among other things fraud.” See, Ex. A, page 3. Tellingly, other than using the terms “breach of contract” and “fraud”, Plaintiffs fail to specify how these documents are needed for their two remaining causes of action. Clearly, Plaintiffs’ purported need for these documents—three of the entities are no longer defendants in this action—is contrived and is belied by their own statement and the remaining claims in this action. Accordingly, as the Subpoena is defective for failing to set forth the required circumstances or reasons underlying the Subpoena, it should be quashed. Il. The Subpoenas should be quashed as Plaintiffs fail to specify the documents they seek. The Subpoena must also be quashed as it does not seek specific documents, but, rather, the Subpoena is nothing more than a “fishing expedition” designed to harass Defendants. “[A] subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” In the Matter of Terry D., 81 N.Y.2d 1042; 601 N.Y.S.2d 452 (1993) (internal citations omitted). A “subpoena must set forth what is sought with some degree of clarity.” In the Matter of Reuters Limited v. Dow Jones Telerate, Inc., 231 A.D.2d 337: 662 N.Y.S.2d 450 (1% Dept. 1997). The Court should not “permit the subpoena power to be used as a tool of harassment or for the proverbial "fishing expedition" to ascertain the existence of evidence.” Id. at 342. Here, the Subpoena requires the production of all “Account statements (including any check images), and wire transfers” of Essex Restaurant LLC, IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. See, Ex. A. There is no list of specific documents sought by Plaintiffs. Thus, it is obvious that Plaintiffs are not using the Subpoena to obtain “specific documents,” but rather, Plaintiffs are simply using the Subpoena in a blunderbuss approach to obtain documents, which is improper. Kantor v. Kaye, 114 A.D.2d 782; 495 N.Y.S.2d 42 (Ist Dep't 1985) (“The use of the descriptions, "any", "all" or "any and all" renders the notice for discovery and inspection? improper.”). Tellingly, no particular document is sought and Plaintiffs fail to set forth why any of the classes of listed documents are sought. Clearly, the Subpoena constitutes nothing more than a "fishing expedition." The Court should not countenance such behavior and the Subpoena should be quashed. Hil. Plaintiff can obtain the relevant documents from other sources. In addition, it must be noted that Plaintiff can obtain the relevant documents* from sources other than non-party Chase Bank. Accordingly, the subpoena should be quashed for this reason. Schorr v. Schorr, 113 A.D.3d 490, 491; 978 N.Y.S.2d 683 (Ist Dep't 2014) (“The court providently exercised its discretion in granting the motion to quash the 3 While the Kantor case deals with a notice of discovery and inspection, rather than, as here, a subpoena duces tecum, both are governed by CPLR §3120. + Certainly the private bank documents of the three non-parties IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC are not relevant to this action. Furthermore, while certain Essex Restaurant LLC documents may be relevant to this action, Plaintiffs fail to specify any particular documents in the Subpoena so as to make that determination. subpoenas. Defendant failed to show that he could not obtain the information sought in the course of depositions of plaintiff or other sources.”). IV. The Subpoena seeks documents which are personal and confidential in nature. Finally, Plaintiffs seek documents from Chase Bank regarding the bank accounts of the three non-parties IndieFork LLC, 19 Stanton Restaurant LLC, and 61 Gans Restaurant LLC. Not some documents; ail of their “account statements.” However, “Tal disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case.” Aitleserv, Titleserv, Inc. Inc. v. Zenobio, 210 A.D.2d 314; 619 N.Y.S.2d 769 (2"4 Dept. 1994). Here, other than stating that the documents “can” show that Defendants purported used accounts in Levine’s name, (see, Ex. A., page 3)(emphasis added) Plaintiffs make no particularized showing that the documents sought are relevant to their claims, nor do they explain why they purportedly need documents through the time period August 30, 2013, when Plaintiffs were terminated in April, 2013, months earlier. However, it is clear that the information regarding the personal bank accounts of these non-party entities is of a private and confidential nature, and accordingly, these documents should not be produced. A Court should not “permit the subpoena power to be used as a tool of harassment or for the proverbial "fishing expedition" to ascertain the existence of evidence.” In the Matter of Reuters Limited, supra, 231 A.D.2d at 344. Here, there exists a great deal of animosity between Defendants and Plaintiffs. This subpoena is obviously an attempt by Plaintiffs to annoy and harass Mr. Shah by seeking his companies’ bank records on an obviously contrived basis. Accordingly, this Subpoena should be quashed. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant this motion in its entirety, and quash the Subpoena. Dated: December 3, 2015 Garden City, New York a YO Zz Joy B. Schwartzman, Esq. lova & Schwartzman, LLP £666 Old Country Road, Suite 700 Garden City, New York 11530 (516)741-0070 10