The following Papers having been read on this Motion:Notice of Motion 1Opposition 2Reply 3 Defendants Harendra and Ruby move this Court to quash certain post-judgment subpoenas served upon them by Plaintiff in an effort to enforce the default judgment it obtained against them on December 12, 2016, pursuant to CPLR §2304; furthermore, Defendants Harendra and Ruby seek a stay of all post-judgment discovery and enforcement proceedings pending a determination of a related criminal case against Defendant Harendra, pursuant to CPLR §2201. Plaintiff has opposed both applications. After review and consideration, Defendants motion to quash is granted to the following extent and the motion to stay the action is hereby denied.The within action was commenced on or about January 2016, in which Plaintiff asserted causes of action sounding in breach of contract, breach of guaranty, and a request for replevin against the within named Defendants. After all Defendants, including Defendants Harendra and Ruby, failed to file an answer or respond to the complaint, a motion for a default judgment was filed by Plaintiff. Following the decision and order dated May 25, 2016, which granted the motion, the matter was scheduled for an inquest on damages. A hearing took place on July 21, 2016, and a judgment was signed on December 2, 2016, against all Defendants, except Defendant Ruby, in favor of Plaintiff in the amount three hundred thirty-nine thousand, five hundred seventy-three dollars and seventy-six cents ($339,573.76). The same judgment was in favor of Plaintiff against Defendant Ruby in the amount of one hundred fourteen thousand, seven hundred eighty-three dollars and twenty-four cents ($114,783.24).Following the entry of the judgment on December 12, 2016, Plaintiff sought information from Defendants so that it may begin its judgment enforcement proceedings. As part of those efforts, Plaintiff served three subpoenas each to Defendant Harendra and Defendant Ruby, respectively as follows: an information subpoena, with approximately fifty-six (56) separate interrogatories, dated December 29, 2016; a subpoena duces tecum, containing thirty-eight (38) separate document requests for production, dated January 5, 2017; and a subpoena to testify, seeking to depose each Defendant, dated January 5, 2017. Defendants Harendra and Ruby have filed their motion to quash all of these subpoenas, citing Fifth Amendment privilege against self-incrimination and spousal privilege as well.Furthermore, Defendant Harendra seeks a stay of any post-judgment discovery and enforcement pending a resolution in the federal criminal proceedings currently pending against him. It should be noted that the instant motion was filed on or about February 20, 2017, and appears to have been fully briefed as of March 22, 2017. However, the motion was adjourned on consent several times until the above referenced submission date. The Court has not been made aware of any updates in the criminal proceeding against Defendant Harendra, nor have the parties indicated that any other post-judgment discovery or enforcement has taken place. Thus, as far as this Court is aware, both this matter and the related criminal proceeding have been stalled for nearly two years.A subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence. Wahab v. Agris & Brenner, LLC, 106 AD3d 993, 965 NYS2d 352 (Mem) (2nd Dept. 2013). Rather, its purpose is to compel specific documents that are relevant and material to facts at issue in a pending judicial proceeding. Murray v. Hudson, 43 AD3d 936, 841 NYS2d 645 (2nd Dept. 2007). In determining whether to quash a subpoena duces tecum, a court must determine, among other things, whether the documents sought by the subpoena were relevant to the investigation and if such relevance is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing a reasonable relation to the matter under investigation. In the Matter of N. (Anonymous) v. Novello, 13 AD3d 631, 787 NYS2d 379 (2nd Dept., 2004). An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. Kapon v. Koch, 23 NY3d 32, 988 NYS2d 559 (2014).The Fifth Amendment privilege against self-incrimination protects against any disclosure which the individual reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Carver Federal Savings Bank v. Shaker Gardens, Inc., 167 AD3d 1337, 2018 NY Slip Op 08975 (2nd Dept., 2018). The witness is not exonerated from answering questions merely because he or she declares that in so doing would incriminate himself or herself. Id. at 1340. In order to effectively invoke the protections of the Fifth Amendment, a defendant must make a particularized objection to each discovery request. Chase Manhattan Bank, National Association v. Federal Chandros, Inc., 148 AD2d 567, 539 NYS2d 36 (2nd Dept., 1989). Furthermore, an agent or officer of an organization cannot invoke the Fifth Amendment and decline to produce records and documents of the organization over which he had custody in a representative capacity, even if the contents of the documents would personally incriminate him, as the act of producing the documents does not involve any risk of testimonial self-incrimination. Matter of Rubin, 100 Ad2d 850, 474 NYS2d 94 (2nd Dept., 1984).In the instant case, it is undisputed that there is a federal indictment pending against Defendant Harendra. However, the moving papers fail to make any particularized objection to any of the interrogatories or document requests in the information subpoena and subpoena duces tecum; rather, Defendants Harendra and Ruby simply make a broad generalized statement that any response will incriminate themselves. A review of the items sought in those subpoenas do not appear to be anything beyond what any other judgment-creditor may seek if they it was doing similar post-judgment discovery of any other judgment-debtor. Moreover, Defendants Harendra and Ruby have not challenged the relevance of the items sought in connection with the subpoenas duces tecum. Therefore, Defendant Harendra’s request to quash the information subpoena dated December 29, 2016, and subpoena duces tecum dated January 5, 2017, is hereby denied in its entirety. Coinciding with this, the request by Defendant Ruby to quash these same subpoenas, asserting spousal privilege, is also denied in its entirety. See CPLR 4502(b); see also People v. Beard, 197 AD2d 582, 602 NYS2d 430 (2nd Dept., 1993).On the other hand, this Court finds that the subpoenas to testify served upon both Defendants Harendra and Ruby, dated January 5, 2017, are appropriate to quash at this time. The subpoenas discussed in the foregoing are sufficiently detailed to provide Plaintiff with the necessary information it seeks; conversely, the depositions sought appear overly broad in their current form and may easily go awry of its legitimate purpose of information gathering to satisfy the judgment. In addition, ordering Defendants Harendra and Ruby to appear and testify for Plaintiff is premature at this stage of the post-judgment discovery process, as they have not provided written responses to the other subpoenas discussed above. Thus, recalling the still pending criminal indictment against Defendant Harendra, both subpoenas to testify dated January 5, 2017, served upon each Defendant Harendra and Ruby are hereby quashed and that portion of the motion is hereby granted.Turning next to the portion of the motion by Defendants Harendra and Ruby that requests an indefinite stay until such time as the pending federal indictment against Defendant Harendra Singh is completed, that application must be denied. Defendants Harendra and Ruby have not satisfied for this Court that either or both of them will be unable to be deprived a defense in the pending criminal action, nor that they will be prejudiced by the enforcement proceedings instituted by Plaintiff. Indeed, given the lengthy adjournments of the within motion, Defendants Harendra and Ruby have benefitted from the de facto stay for almost two years already, with still no end to the criminal proceedings in sight. Further delays in that criminal matter may certainly severely prejudice Plaintiff if it is unable to pursue this judgment for an indefinite period of time. Thus, in exercise of this Court’s discretion, the motion to stay judgment enforcement and any post-judgment discovery in this matter is hereby denied. Mook v. Homesafe America, Inc., 144 AD3d 1116, 41 NYS3d 759 (2nd Dept., 2016).Defendants Harendra and Ruby shall file and serve a copy of the within order with notice of entry upon Plaintiff within twenty (20) days from the date of this order. Thereafter, Defendants Harendra and Ruby shall each respond to the information subpoena and subpoena duces tecum served upon them no later than March 29, 2019.This hereby constitutes the decision and order of this Court.Dated: January 31, 2019
