Bronstein v. Omega Constr. Grp., Inc.

221 A.D.3d 577

199 N.Y.S.3d 540

Peretz BRONSTEIN, et al., respondents,

v.OMEGA CONSTRUCTION GROUP, INC., et al., defendants,George Guttman, et al., appellants.

2021-04870

Index No. 14650/12

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 23, 2023

November 1, 2023

Donovan Hatem, LLP, New York, NY (Stephen F. Willig of counsel), for appellants.

Mikhail Sheynker, Brooklyn, NY, for respondents.

MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and breach of contract, the defendants George Guttman, Dimo Engineering, P.C., and Alex Rabinovich appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 26, 2021. The order, insofar as appealed from, granted those branches of the plaintiffs’ motion which were for a protective order, and, upon reargument, vacated so much of an order of the same court dated April 14, 2021, as granted that branch of the motion of the defendants George Guttman, Dimo Engineering, P.C., and Alex Rabinovich which was, in effect, to compel nonparty Atonucci & Associates Architects & Engineers, LLP, to comply with a subpoena, and thereupon, in effect, denied that branch of the motion of the defendants George Guttman, Dimo Engineering, P.C., and Alex Rabinovich.

ORDERED that the order dated May 26, 2021, is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting those branches of the plaintiffs’ motion which were for a protective order, and (2) by deleting the provision thereof, upon reargument, in effect, denying that branch of the motion of the defendants George Guttman, Dimo Engineering, P.C., and Alex Rabinovich which was, in effect, to compel nonparty Atonucci & Associates Architects & Engineers, LLP, to comply with a subpoena; as so modified, the order dated May 26, 2021, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

The plaintiffs commenced this action, inter alia, to recover damages for negligence and breach of contract against, among others, George Guttman, Dimo Engineering, P.C., and Alex Rabinovich (hereinafter collectively the defendants). The complaint's allegations concern renovation work performed on a home located in Brooklyn. The defendants served a subpoena duces tecum commanding the nonparty Atonucci & Associates Architects & Engineers, LLP (hereinafter AAAE), to produce certain documents. Subsequently, in an order dated April 14, 2021, the Supreme Court, among other things, granted that branch of the defendants’ motion which was, in effect, to compel AAAE to comply with the subpoena. However, in an order dated May 26, 2021, the court, inter alia, granted those branches of the plaintiffs’ motion which were for a protective order, and, upon reargument, vacated so much of the April 14, 2021 order as granted that branch of the defendants’ motion which was, in effect, to compel AAAE to comply with the subpoena, and thereupon, in effect, denied that branch of the defendants’ motion. The defendants appeal.

CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." "The right to disclosure, although broad, is not unlimited" ( Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 ). " CPLR 3101 itself establishes three categories of protected materials, also supported by policy considerations: privileged...