In the Matter of the Estate of Marie Starace Knee, a/k/a Marie Starace DeceasedIn this contested turnover proceeding, The MacLean Law Firm P.C., (hereinafter “Counsel for the Petitioner”) filed a motion on behalf of Salvatore Starace, Administrator C.T.A of the Estate of Marie Starace Knee, a/k/a Marie Starace, on April 18, 2018 seeking the following relief:1. Pursuant to CPLR 2221, for an order modifying this Court’s order dated December 27, 2017, by deleting or clarifying the qualification that appears therein directing the turnover of documents only for “the three most recent fiscal years.”John A. Passarello, Jr., Esq. of Passarello & LaRosa, Esqs., (hereinafter “Counsel for the Respondents”), filed a cross-motion on behalf of Papa Real Estate I, LLC, and Vincent Priolo, individually and Pasquale Priolo, individually, and Joseph Priolo, individually on May 22, 2018 seeking the following relief:1. Pursuant to CPLR 3103 (a) for a protective order preventing Joseph Priolo and Pasquale Priolo from being deposed because of medical reasons.2. Pursuant to CPLR 3211 (10) requesting inclusion and joinder of the heirs, distributes and legatees in this turnover proceeding.3. Pursuant to CPLR 3212 dismissal of the turn over proceeding and granting summary judgement.The Court will provide a brief procedural history below prior to addressing the motions.PROCEDURAL HISTORYOn December 27, 2017, this court issued a decision regarding various discovery issues and the matter was made returnable on February 7, 2018 for control purposes and to set a new discovery schedule. The matter was adjourned on consent from February 7, 2018, to February 21, 2018. A Notice of Appeal was filed by Counsel for Petitioner on February 8, 2018. Since the filing of the appeal, Counsel for the Petitioner has informed the Court that the appeal has not been perfected. Counsel for the Respondents filed a Supplemental Response to Petitioner’s First Notice of Discovery and Inspection on February 13, 2018. Counsel for both parties appeared on February 21, 2018 before the Surrogate and the matter was adjourned to April 18, 2018 for responses to discovery to be made by Counsel for the Petitioner. On April 18, 2018, the parties scheduled June 13th, 2018 as the return date for any motions and cross-motions to be filed. Counsel for both parties appeared for argument on June 13, 2018. Prior to the argument commencing, another attorney by the name of Robert Allen was present. Mr. Allen has not filed any formal papers with the Court to appear in this proceeding. Counsel for petitioners and respondents were in disagreement as to proceed with oral argument due to Mr. Allen being present. Mr. Allen advised the Court that he would be observing and not participating in this oral argument. Eventually, oral argument commenced on that date.DISCUSSIONI. PETITIONER’S MOTION FOR THE COURT TO MODIFY ITS ORDER DATED DECEMBER 27, 2017Counsel for Petitioner first moves pursuant to CPLR 2221 that this Court modify its order that was ruled on December 27, 2017. Specifically, that the Court delete or clarify qualifications that appear therein the turnover of documents for only the “three most recent fiscal years.”CPLR 2221 states “a motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it.”Counsel for Petitioner argues that a motion to modify would be necessary to provide an accurate reflection of the valuation of Papa Real Estate I, LLC.Counsel for the Respondents argue Res Judicata and that the previous order should stand. Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again (see, O’Connell v. Corcoran, 1 NY3d 179, 184 — 185 [2003]; Gramatan Home Invs. Corp. v. Lopez, 46 NY2d 481, 485 [1979]). Additionally, under New York’s transactional analysis approach to res judicata, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981], citing Matter of Reilly v. Reid, 45 NY2d 24, 29, [1978]). “Res judicata is designed to provide finality in the resolution of disputes,” recognizing that “considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” (Reilly, supra, 45 NY2d at 28).In this current proceeding however, modifying a previous order would serve in the interest of the efficiency of this court as there appears to be a need for clarification from a previous order. The Court takes note of the following:1. The Operating Agreement for Papa Real Estate I, LLC is dated October 15, 2008;2. Marie Starace Knee passed away on October 6, 2013 and3. The Partnership Resolution of Papa Real Estate I, LLC is purported to have been executed on November 20, 2013.Further, it appears the decision and order of the court dated December 27, 2017 could be interpreted to only require discovery from December 27, 2014 to December 27, 2017. That would thus not provide discovery for a valuation for the date of death and/or the date of the Partnership Resolution Of Papa Real Estate, I, LLC. Further, it should be noted that initial discovery requests commenced back in the year 2014.Courts have the discretion to cure mistakes, defects, and irregularities in judgments that do not affect substantial rights of parties. Parkinson v. Bono, 300 AD2d 640 (2d Dept 2002) (citing CPLR 5019(a); Kiker v. Nassau County, 85 NY2d 879, 626 NYS2d 55, 649 NE2d 1199; Aames Capital Corp. v. Davis, 295 AD2d 376, 743 NYS2d 729).In this case, Counsel for the Respondents argue that further discovery would burden their client as they have provided two responses to discovery thus far. However, the modification would be warranted as an efficient course for this court to make sure that the time period for the valuation of this company is properly covered.Accordingly, this court grants the Petitioner’s motion to modify, and the “three most recent fiscal years” wherein mentioned in the decision and order of the Court dated December 27, 2017, is to be read as one year prior to the date of decedent’s death (October 6, 2013) to two years after decedent’s death.II. RESPONDENT’S MOTION FOR PROTECTIVE ORDERSCounsel for Respondents have moved for protective orders pursuant to CPLR 3103(a) preventing the depositions of Joseph Priolo and Pasquale Priolo.CPLR 3103(a) states that “The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”In support of their motion, Counsel for Respondents have provided letters from physicians for both Joseph Priolo and Pasquale Priolo. (See Exhibit B of Counsel for Respondent’s Cross-Motion dated May 22, 2018).Counsel for Petitioner argue that Respondents have not satisfied their burden for a protective order establishing that the deposition would cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.For a protective order to be issued, the party seeking such an order must make a “factual showing of ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice’ (Hartheimer v. Clipper, 288 AD2d 263, 732 NYS2d 866, quoting CPLR 3103[a]). “Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery…. This discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind” (Brignola v. Pei — Fei Lee, M.D., P.C., 192 AD2d 1008, 1009 [1993]).Even in cases where medical concerns are at issue, unless there is a proper showing of great annoyance the court has the discretion of whether a protective order is necessary. Cascardo v. Cascardo, 136 A.D.3d 729, 730, 24 N.Y.S.3d 742 (court denied a protective order after plaintiff failed to prove that a previous injury would warrant the issue of a protective order.)Upon review of the formal papers submitted and the oral argument heard, the Motion for a Protective Order for the Deposition of Joseph Priolo is held in abeyance. The Court directs that an updated letter from the physician regarding the condition of Joseph Priolo be submitted. The previous letter was dated April 5, 2018 and the pacemaker had been inserted on March 27, 2018. Upon submission of that letter, the Court will make a decision as to the motion regarding Joseph Priolo.Pursuant to the letter dated April 10, 2018, Pasquale Priolo has been under the care of Doctor Rafii for over fifteen years for Parkinson’s disease and severe gait disorder. Further, during oral argument Counsel for the Respondents argued that Pasquale Priolo is non-verbal and that deposing Pasquale would bear a great burden. Upon review of the formal papers submitted and oral argument heard, the Motion for a Protective Order for the Deposition of Pasquale Priolo is granted.III. RESPONDENT’S MOTION FOR JOINDERCounsel for the Respondents requests inclusion and joinder in this proceeding of all of the heirs, distributes and legatees of the decedent due to the fact that they are parties in a Declaratory Judgment proceeding. However, a motion to dismiss was granted removing the heirs, distributees and legatees as parties in the Declaratory Judgment proceeding in a decision dated October 21, 2016. (See Surrogates Court Richmond County File # 2014-106 H/J). The Court at that time determined the Administrator C.T.A. was a proper party to the declaratory judgment proceeding.In the interest of judicial efficiency, the Court takes the same position here and finds that inclusion and joinder is improper as the turnover proceeding has been a lengthy one. To add more parties would further delay the discovery proceeding. The Administrator CTA serves as a fiduciary for the decedent and is to act in the best interests of the Estate. The heirs, legatees and distributees are entitled to commence other proceedings should they deem necessary.IV. RESPONDENT’S MOTION FOR SUMMARY JUDGEMENTCounsel for Respondents move for Summary Judgement pursuant to CPLR 3212. In further support of their argument, Counsel for Respondents sets forth that they are ready to satisfy all of the relief requested in the wherefore clause of the Petition for Turnover. However, Counsel for Petitioner argues that further discovery is required as to the decedents interest in Papa Real Estate I, LLC.Summary judgement should be granted only where it is clear that no triable issue of fact exists (Matter of Goldberg, 180 AD2d 528). Initially, it is necessary for the movant to make a prima facie showing that he or she is entitled to summary judgement as a matter of law (Zuckerman v. City of New York, 49 NY2d 557). The objectant opposing summary judgement must then present affirmative proof that their claims are real and capable of being established at trial (Stainless, Inc. v. Employers Fire Ins., 69 AD2d 27). If there is any doubt as to the existence of a triable issue, the motion for summary judgement must be denied (Hantz v. Fishman, 155 AD2d 415).Upon review of the papers submitted and oral argument, further discovery is required and the motion for summary judgment is denied without prejudice.V. PETITIONER’S REQUEST FOR FEES OF DEPOSITIONCounsel for Petitioner request that Respondents bear the costs of depositions. That request is denied. 22 NYCRR§130-1.1(a) provides that the Court, in its discretion, may award costs resulting from frivolous conduct or impose financial sanctions upon any party who engages in frivolous conduct. At this time, the Court declines to award costs or impose financial sanctions.CONCLUSIONThe matter is restored to the Court calendar of October 3, 2018 at 11:00 a.m. for control purposes. A copy of this decision shall be sent via regular mail to the MacLean Law Firm, PLLC and Passarello & LaRosa, Esqs.The Court wishes to express its appreciation to its intern, Giancarlo Vecchiarelli, a rising 3L at Brooklyn Law School, for his assistance in the researching and drafting of this decision.This decision shall constitute the order of the Court.Dated: August 7, 2018
