The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for DISCOVERY. DECISION ORDER ON MOTION Defendant’s motion to compel discovery is decided as described below. Background In this case, plaintiff, the tenant of the building and operator of a restaurant sues defendant, the building owner, for alleged commercial harassment. Plaintiff claims that in June 2018, defendant erected a sidewalk shed in front of the restaurant, which harmed plaintiff’s business, as part of an attempt to force plaintiff to vacate the premises. Defendant moves to compel the production of records responsive to its post deposition demands. Defendant claims that plaintiff must produce the documents because they are relevant to its claim that the sidewalk shed negatively impacted its business. Specifically, defendant seeks1 detailed profit and loss statements for the Strip House, any restaurants in the Borough of Manhattan owned by plaintiff’s parent company, and any steakhouse restaurants in New York City owned by plaintiff’s parent company from June 2010 (“or as early as such statements extend”) to the present (NYSCEF Doc. No. 68 at 5-6). Defendant also seeks any reports generated by Landry Analytics Department concerning the business performance from June 2010 (“or as early as such statements extend”) to the present, any documents used by plaintiff or its affiliates concerning the amount of lost revenues sustained by plaintiff as a result of the shed, and any minutes or materials from Landry Real Estate Department meetings where the lost revenues sustained by plaintiff was discussed (id.). Defendant argues that plaintiff’s witness testified that records prior to 2016 might contain further information and so the records must be produced. Plaintiff opposes the motion and argues that demanding documents from 2010 is a fishing expedition and the demands regarding other restaurants owned by plaintiff’s parent company is improper, overbroad, and unduly burdensome. Plaintiff also argues that several of the demands are irrelevant and will not lead to relevant information. Plaintiff’s witness also confirmed at a deposition that there are no documents existing that are responsive to the demand for the real estate minutes. In reply, defendant argues that the key factual issue in dispute is Strip House’s financial performance and what impact the sidewalk shed had on such performance. It argues that documents from 2010 may be less probative than more recent documents, but they are still relevant and defendant cites to plaintiff’s deposition where the witness testified that a person reviewing records predating 2016 could “glean some further information” from the records (NYSCEF Doc. No. 83 at 3). Defendant argues that plaintiff did not offer a “cut-off” date for relevance and does not explain why it believes that 2016 is sufficient. Defendant argues that “it is better to err on the side of over-inclusiveness” (id.). Discussion “Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: ‘[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.’ We have emphasized that the words, ‘material and necessary’, are…to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is ‘material and necessary’” (Forman v. Henkin, 30 NY3d 656, 661 [2018] [internal quotations and citations omitted]). Profit and Loss Statements Defendant seeks three sets of detailed profit and loss statements for the subject restaurant, any other steakhouse, and any other restaurant owned by plaintiff’s parent company from June 2010 “or as early as such statements extend” to the present. Defendant argues that these documents are relevant and necessary so that defendant may analyze to what extent plaintiff lost revenue as a result of the sidewalk shed. In essence, defendant demands every profit and loss statement that these restaurants have ever drafted to determine how a sidewalk shed impacted plaintiff’s business. The subject location With respect to the profit and loss statements for the subject restaurant dating back to 2010 (or earlier), this Court finds that the time frame demanded is unreasonable. At the last conference, this Court agreed that this demand was a fishing expedition and ordered that defendant may make a motion if it felt that the decade-old documents were necessary (NYSCEF Doc. No. 81). Plaintiff had already provided defendant with statements from December 2016 to June 2021 (id.). Defendant has not cited to law or precedent entitling it to records from over ten years ago, nor has defendant explained why records dating back to 2010 are relevant. Defendant has only argued that “a substantial time period of Plaintiff’s financial records during the months without a sidewalk shed is necessary” (NYSCEF Doc. No. 68 at 9). But defendant has not explained how it came to the conclusion that 2010 to present is a reasonable timeframe. In fact, defendant is seeking records stretching back to an unknown date by demanding documents “as early as such statements exist.” Defendant does not argue that the records it has justify going back further. It does not claim, for instance, that there are wild variations in restaurant’s profits and, therefore, there is no way to adequately characterize the effect of the sidewalk shed. Plaintiff’s opposition argues that defendant’s demands are overbroad, and this Court agrees. However, the Court finds that it would be unfair to defendant if plaintiff were to use documents not exchanged in any future motion or at trial. Plaintiff cannot object to the production of a financial document as irrelevant here and then rely on those same documents later. Therefore, plaintiff may not use any financial documents that were demanded but not turned over to defendant in a future motion or at trial. If plaintiff decides it wants to turn over more documents than is directed in this decision, it may do so but must disclose such records on or before April 8, 2022. Given that the shed was erected in June 2018, and business probably dropped terribly anyway due to COVID in early 2020, it would be unfair to give such little pre-COVID information. Therefore, in order to give enough profit trend data to analyze, the Court orders all information to be provided from January 2014. That would provide a reasonable amount of data to analyze and would include pre-shed, post-shed and pre-COVID and post-COVID. That would mean there is four and one half years pre-shed (Jan 2014-June 2018) and a year and a half postshed and pre-COVID (June 2018 — Jan 2020), then COVID-related to present. The Court finds this range of dates is enough: beginning in January 2014 to present. Therefore, plaintiff must produce profit and loss statements for the subject restaurant from January 2014 to December 2016 (since documents from December 2016 through June 2021 have already been produced) by April 8, 2022. If plaintiff wants to use any other profit and loss data, it must also produce it by April 8, 2022 or it will be precluded from producing it in a later motion or at trial. Other locations With respect to the demand for profit and loss statements for other steakhouses owned by plaintiff’s parent company dating back to 2010 (or earlier), this Court finds that the demand is overbroad and irrelevant. Defendant’s claim that it seeks that information to analyze the financial performance of the subject restaurant is unpersuasive. Plaintiff here is claiming that its business suffered harm as a result of the sidewalk shed at this particular location. It is irrelevant how any other of its steakhouses in New York City fared. This portion of defendant’s motion to compel is denied. With respect to the profit and loss statements for any other restaurant owned by plaintiff’s parent company dating back to 2010 (or earlier), this Court also finds that the demand is also overbroad and irrelevant. Defendant has failed to articulate what relevancy decade-old documents from a restaurant serving different cuisine in a different part of Manhattan could have in the instant matter. This portion of the motion is denied. Nothing herein is intended to imply that expert testimony regarding the restaurant industry in Manhattan during the time period is irrelevant; this decision only states that documentation from plaintiff’s other restaurants are not relevant to the claim that the sidewalk shed negatively impacted plaintiff’s business at this location. Reports by Landry Analytics Department Defendant also seeks reports by Landry Analytics regarding the business performance, and any documents reviewed in connection with the plaintiff’s analysis of revenue losses, from June 2010 “or as early as such statements extend.” Defendant explains that it seeks to ascertain whether plaintiff suffered financial harm as a result of the sidewalk shed and believes that these records are relevant. Because plaintiff is complaining that the sidewalk shed has negatively impacted its business, reports regarding plaintiff’s business performance are relevant in theory. However, as explained above, this Court finds that records from 2010 (or earlier) are overbroad. Therefore, plaintiff shall produce all Landry Analytic reports regarding its business performance from January 2014 to June 2021 by April 8, 2022. Meeting Minutes Lastly, defendant seeks the minutes or materials associated with plaintiff’s meetings regarding loss revenue. Plaintiff has opposed on the grounds that no such meeting minutes exist and cites to a letter dated December 30, 2021, indicating that plaintiff “does not have, nor does there exist, any documents relating to meeting minutes” (NYSCEF Doc. No. 82). The meeting minutes were not raised again in reply and so plaintiff’s contention that no records exist is uncontested. In any event, this Court cannot order the production of documents that do not exist and so this portion of defendant’s motion is denied. Accordingly, it is hereby ORDERED that the motion by defendant is granted to the extent that plaintiff shall produce profit and loss statements for the subject restaurant from January 2014 to June 2021 by April 8, 2022; and it is further ORDERED that plaintiff shall produce all Landry Analytic reports regarding its business performance, and any records in preparing the reports, from January 2014 to June 2021 by April 8, 2022; and it is further ORDERED that plaintiff must turn over any financial records it intends to use in a future motion or a trial on or before April 8, 2022; any records not produced will be precluded. Next Conference: April 25, 2022. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 9, 2022
