Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing the motion of defendant/third-party plaintiff IGS Realty Co. for an order quashing a subpoena duces tecum or, in the alternative, granting a protective order, and imposing sanctions, pursuant to 22 NYCRR 130-1.1(a)-(d).Papers NumberedDefendant’s Notice of Motion and Affirmation in Support 19, 20Plaintiff’s Affirmation and Brief in Opposition 29, 30Defendant’s Affirmation in Reply 38DECISION/ORDERIn this landlord-tenant action for breach of express contract provisions and implied covenants, conversion, fraudulent inducement, unjust enrichment, and waiver, plaintiff Sell It Social LLC, the tenant, alleges that IGS Realty Co., the landlord, intentionally withheld material information regarding the loss of an Industrial and Commercial Incentive Program (ICIP) tax exemption to prevent plaintiff from exercising its one-time right to terminate the lease. Plaintiff also alleges that IGS Realty unilaterally improperly converted plaintiff’s $37,000 security deposit originally deposited in an escrow account maintained at nonparty Alma Bank. Plaintiff alleges that IGS Realty converted the security deposit to pay additional rent purportedly owed by plaintiff, as the result of the loss of the ICP tax exemption. In the complaint, plaintiff seeks to recover $37,000, together with prejudgment interest, attorney fees, costs, and expenses. IGS Realty served an answer with affirmative defenses and counterclaims and impleaded third-party defendants Peter Stiler and Health Wolfson, plaintiff’s owners and operators and the personal guarantors of plaintiff’s lease obligations. In the counterclaims and third-party action complaint, IGS Realty seeks to recover $34,137.43 in unpaid rent, together with 1.8 percent monthly interest accruing from February 20, 2017, and attorney fees, costs, and expenses.IGS Realty now moves under CPLR 2304 to quash the subpoena duces tecum served by plaintiff on Alma Bank in which plaintiff demands production of bank records relating to IGS Realty’s bank and investment accounts, or, in the alternative, under CPLR 3103, for a protective order, on the grounds that the subpoena violates CPLR 3101(a)(4) because it does not include a statement regarding the circumstances or reasons that such disclosure is required and that the scope of the demand is overbroad.In opposition, plaintiff and third-party defendants contend that the demanded discovery is necessary to trace the various locations of the subject security deposit funds allegedly improperly withdrawn from the escrow account. They contend that the discovery is also needed to demonstrate that IGS Realty co-mingled the subject funds with its funds in violation of General Obligations Law (GOL) §7-103; to calculate the amount of tax related to plaintiff’s leased space paid by IGS Realty; to demonstrate that plaintiff paid IGS Realty in accordance with the lease terms; and to calculate IGS Realty’s damages demanded in the counterclaims.Under CPLR 3101(a)(4), a party may obtain discovery from a nonparty upon notice stating the circumstances or reasons that such disclosure is sought or required (Kondratick v. Orthodox Church in Am., 73 AD3d 708, 709 [2d Dept 2010]). There is “no requirement that the subpoenaing party demonstrate that it cannot obtain the required disclosure from any other source,…so long as the disclosure sought is relevant to the prosecution or defense of any action, it must be provided by the nonparty” (Matter of Kapon v. Koch, 23 NY3d 32, 38 [2014]; CPLR 3101 [a][4]).The scope of discovery in New York is broad, and discovery from a non-party should be directed when the party seeking the discovery demonstrates that the disclosure sought is “material and necessary” (CPLR 3101 [a][4]). Material and necessary information has been defined as information that will “assist preparation for trial by sharpening the issues and reducing delay…. The test is one of usefulness and reason” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Matter of Kapon, 23 NY3d at 37-38).A motion to quash a subpoena on relevancy grounds will be granted upon a showing that the materials sought are utterly irrelevant to the issues raised (Matter of Kapon, 23 NY3d at 39; Musey v. 425 E. 86 Apts. Corp., 154 AD3d 401, 404 [1st Dept 2017]). The party seeking to quash bears the burden of establishing that the demanded documents are utterly irrelevant to the issues raised in the action (Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [1st Dept 2006]).“It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Foster v. Herbert Slepoy Corp., 74 AD3d 1139, 1140 [2d Dept 2010] [internal quotation marks and citation omitted]).On February 5, 2018, plaintiff and third-party defendants jointly served on Alma Bank a notice with subpoena duces tecum, dated February 2, 2018, and returnable March 2, 2018. In that subpoena, they demanded that Alma Bank produce “[a]ny and all documents related to any bank accounts, checking accounts, and/or investment accounts held by IGS Realty…[and] bank account applications, signature cards, bank accounts and/or records related to any escrow money held on behalf of IGS Realty…from 2010 to present” (subpoena, Schedule “A” [1], [2]). They also demanded that Alma Bank produce “[a]ny and all bank records, statements, applications, signature cards, powers of attorney, checks related to the bank account referenced in” a 2017 Tax Statement annexed to the subpoena (id., Schedule “A” [3]; see subpoena, Schedule “A” [4]).Contrary to IGS Realty’s contention, the subpoena complies with CPLR 3101(a)(4). The subpoena identifies the lawsuit, and includes a statement that “[t]he documents are being sought in furtherance of the defense and litigation position of the requesting party” (subpoena at 2).The subpoena also identifies the documents sought with reasonable particularity. The subpoena includes a description of the escrow account and lists the account number. Annexed to the subpoena is an income tax document issued by Alma Bank to IGS Realty listing the account number of the escrow account (see Alma Bank 2017 Form 1099-INT: Interest Income).IGS Realty has failed to demonstrate any unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice would occur, as the result of an order to produce the documents demanded, inasmuch as Alma Bank has not objected to the subpoena (see Velez v. Hunts Point Multi-Serv. Ctr. Inc., 29 AD3d at 109-110; CPLR 3103 [a]).The subpoena is enforceable, in part. Some of the documentation demanded is relevant, material, and necessary, while some of it is not. Plaintiff’s claims arise, in part, out of allegations that 105 Realty converted plaintiff’s security deposit (see complaint
23-26). IGS Realty admits that it possesses the subject security deposit funds, that the funds are in the bank account identified by Alma Bank in an income tax document issued to IGS Realty, and states that it has no objection to providing records confirming its possession (see Sheindlin affirmation,18; Defendant/Third-Party Plaintiff’s Response to Notice to Admit
