It is, ORDERED, that the first application of Defendants is hereby granted to the extent set forth herein below; the application of Plaintiff is hereby denied in all respects; and the second application of Defendants is hereby granted in all respects.

Defendants move this Court for an Order:

a.Pursuant to CPLR 3103, prohibiting Plaintiff from seeking from anyone, including banks and Defendant themselves, intimate financial documents and bank records of Defendants;

b.Pursuant to CPLR 3103 and 2304, quashing the two subpoenas which Plaintiff recently served upon Bank of America and North Fork Bank;

c.Pursuant to 22 NYCRR Part 130, imposing sanctions upon Plaintiff by granting Defendant costs in connection with this Motion, including counsels' fees.

Plaintiff move this Court for an Order granting Plaintiff's Cross-Motion to compel disclosure pursuant to CPLR 3124; and denying Defendants' Motion to quash, for a Protective Order and sanctions.

Defendants move this Court for an Order:

a.Pursuant to CPLR 3211(a)(1) and (7), dismissing the corporate veil piercing claims which Plaintiff has wrongfully included in its Complaint;

b.Alternatively, pursuant to CPLR 603 and 2201, severing such corporate piercing veil claims from the remaining claims, and staying such claims until liability as to the remaining claims is fixed.

The papers submitted in support and opposition to the instant Motions demonstrate that Plaintiff attempted to procure the information at the heart of the underlying subpoenas three years before it served same, and Defendants at that time interposed explicit objections. Thereafter, Plaintiff [*2]allowed this action to lie fallow for three years, and then served subpoenas on the banking institutions of Defendants, some not on notice to the parties.

Before the swirl of papers herein gained a life of their own, Defendants presented a brief synopsis that this Court feels summed up the correct position regarding the breadth of relief sought herein. Excluding their references to costs, Defendants took the position that the subpoenas must be quashed, and Plaintiff must be barred from seeking from anyone, including banks and the Defendants themselves, intimate financial documents and bank records of Defendants, on the basis that:

1.Plaintiff has engaged in inexcusable laches in failing for over three years to file a Motion to compel disclosure of the very same documents it attempts now to obtain by way of a third-party subpoena, and its attempt to bypass the long extant objections of Defendants by seeking the documents directly from the banks is highly improper (See: Charter One Bank, FSB v Houston, 300 AD2d 429, 751 NYS2d 573 [2 Dept 2002]; Remark Electric Corp v Manshul Construction Corp, 242 AD2d 694, 662 NYS2d 592 [2 Dept 1997]), (and the Court would add here the within subpoenas were issued without approval of the Court, and three years after the totality of the case was allowed to stagnate, not just the issue of procurement of documents);

2.The subpoenas are jurisdictionally defective in that they fail to include the required statement of the circumstances or reasons such disclosure is sought or required, pursuant to CPLR 3101(a)(4), (See: Wilson v City of Buffalo, 298 AD2d 994, 747 NYS2d 657 [4 Dept 2002]; Knitwork Prods Corp v Helfat, 234 AD2d 345, 651 NYS2d 99 [2 Dept 1996]; Rickicki v Borden Chem, 195 AD2d 986, 600 NYS2d 397 [4 Dept 1993]);

3.The information Plaintiff seeks is overbroad, could have been obtained through a party deposition, and Plaintiff fails to establish special circumstance, as required (See: Battaglia v New York City Transit Authority, 2 AD2d 985 157 NYS2d 797 [2 Dept 1956]; Pyron v Banque Francaise Du Commerce Exterieur, 256 AD2d 204, 682 NYS2d 371 [1 Dept 1998]; MacKinnon v MacKinnon, 245 AD2d 690, 665 NYS2d 123 [3 Dept 1997]; Hirschfeld v Hirschfeld, 69 NY2d 842, 514 NYS2d 704 [1987]; Tannenbaum v Tannenbaum, 8 AD3d 360, 777 NYS2d 769 [2 Dept 2004]; Wurtzel v Wurtzel, 227 AD2d 548, 642 NYS2d 967 [2 Dept 1996]);

4.Plaintiff has demonstrated no attempt to protect Defendants' private bank records (See: Alta Apartments LLC v Wainright, 2004 WL 1717573 [CivCt 2004]);

5.Plaintiff is attempting to use the subpoenas improperly as a broad discovery device in violation of settled law (See: Matter of Terry D, 81 NY2d 1042, 601 NYS2d 452 [1993]; Board of Educ of City of New York v Hankins, 741 NYS2d 717, 294 AD2d 360 [2 Dept 2002]; Porter v SPD Trucking, 284 AD2d 181, 727 NYS2d 70 [1 Dept 2001]; abrogated on unrelated grounds Reid v Brown, 308 AD2d 331, 764 NYS2d 260 [1 Dept 2003]);

6.Plaintiff has failed to concurrently serve Defendants Counsel with the North Fork Bank subpoenas, rendering same invalid pursuant to CPLR 3120.

Furthermore, the Court notes that, in interpreting CPLR 3101(a)(4) the Appellate Division, 2nd Department, in clear language directly relevant to the matter at bar, states the following:

"A party seeking discovery from a nonparty witness must show special circumstances (see Lanzello v Lakritz, 287 AD2d 601 [2001]; Dioguardi v St. John's Riverside Hosp., 144 AD2d [*3]333, 334 [1988]). The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained through other sources (see Murphy v Macarthur Holding B., 269 AD2d 507 [2000])."

The issue is specifically and conclusively addressed in the comprehensive decision of Supreme Court, New York County, in Giannicos v. Bellevue Hosp. Medical Center, 7 Misc 3d 403, 793 NYS2d 893 [2005], wherein the Court clearly stated that it has discretion to limit disclosure and issue a protective order to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." (CPLR 3103 [a]; Pomeranz v Pomeranz, 99 AD2d 407 [1 Dept 1984]; Byck v Byck, 294 AD2d 456, 457 [2 Dept 2002]).

Where a subpoena served upon a non-party fails to state, or fails to have a notice attached stating, "...the circumstances or reasons such disclosure is sought or required...", then the subpoena is facially defective, and may not be enforced (Yost v. Douris, 151 AD2d 489, 542 NYS2d 279 [2 Dept 1989]; Matter of Validation Review Associates, Inc., 237 AD2d 614, 655 NYS2d 1005 [2 Dept 1997]; Knitwork Productions Corp. v. Helfat, 234 AD2d 345, 651 NYS2d 99 [2 Dept 1996]).

It is well settled that this Court will not allow the subpoena to be used as a fishing expedition, either (see Oak Beach Inn Corp. v. Town of Babylon, 239 AD2d 568 [2 Dept 1997]).

The above having expressed the opinion of this Court regarding the first application of Defendants and the cross-application of Plaintiff, the Court now embarks on addressing the issue of the second application of Defendants, seeking to terminate Plaintiff's attempt to pierce the corporate veil within their action.

In State of New York v Robin Operating Corp, 3 AD3d 769, 773 NYS2d 137 [3 Dept 2004], the Appellate Division set forth the elements necessary to prevail in such a course of action in an action, stating that, generally, a party seeking to pierce the corporate veil must show that: (1) the owners of the corporation exercised complete domination thereof with respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the complaining party which resulted in their injury (See: Morris v New York State Dept of Taxation & Fin, 82 NY2d 135, 603 NYS2d 807, 623 NE2d 1157 [1993]; Island Seafood Co v Golub Corp303 AD2d 892, 759 NYS2d 768 [2003]).

Furthermore, in EDK Enterprises Inc v C&S Wholesale Grocers, Inc, 30 AD3d 924, 818 NYS2d 319 [3 Dept 2006], the Appellate Division stated that evidence of domination alone does not suffice without an additional showing that it led to inequity, fraud or malfeasance, and significantly, no inference of abuse arises where a corporation was formed for legal purposes or is engaged in legitimate purposes, reminding the parties to that action that it is perfectly legal to incorporate for the express purpose of limiting liability (See: TNS Holdings v MKI Sec Corp, 92 NY2d 335, 680 NYS2d 891, 703 NE2d 749 [1998]; Morris v New York State Dept of Taxation & Fin, supra ). [*4]

In conclusion, in Treeline Mineola, LLC v Bergi, 21 AD3d 1028, 801 NYS2d 407 [2 Dept 2005], the Appellate Division stated that, while the Courts are empowered to pierce the corporate veil in appropriate circumstances, in view of the well established fact that a business can be incorporated for the very purpose of enabling its proprietor to escape personal liability, said corporate form is not lightly to be disregarded, and indeed the precedent is clear that the Courts will pierce the corporate veil only to prevent fraud or illegality, or to achieve equity, even in situations where the corporation is controlled or dominated by a single shareholder (See: Bowles v Errico, 163 AD2d 771, 558 NYS2d 734; New York Assn for Retarded Children, Montgomery County Ch v Keator, 199 AD2d 921, 606 NYS2d 784). As in the instant situation, Plaintiff therein failed to establish that the sole shareholder/proprietor, through his control and domination over the corporation, perpetuated a wrong or injustice against Plaintiff such that a Court of equity would intervene (See: Morris v New York State Dept of Taxation & Fin, supra ; Weiss v Marjam of Long Island, 270 AD2d 455, 705 NYS2d 76; Kopec v Hempstead Gardens, 264 AD2d 714, 696 NYS2d 53; Palisades Off Group v Kwilecki, 233 AD2d 490, 650 NYS2d 990). The record herein is devoid of such proof.

For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,

ORDERED, that the first application of Defendants is herein decided as follows:

a.As to the request for an Order, pursuant to CPLR 3103, prohibiting Plaintiff from seeking from anyone, including banks and Defendant themselves, intimate financial documents and bank records of Defendants, this component of Defendants' request is hereby granted in all respects, and a Protective Order is hereby issued, absent a specific request of this Court, satisfactorily setting forth all requisite foundations for such a request, including but not limited to the specific circumstances or reasons such disclosure is sought or required, said application to be made on proper notice to all parties in advance;

b.As to the request for an Order, pursuant to CPLR 3103 and 2304, quashing the two subpoenas which Plaintiff recently served upon Bank of America and North Fork Bank, this component of Defendants' request is hereby granted in all respects;

c.As to the request for an Order, pursuant to 22 NYCRR Part 130, imposing sanctions upon Plaintiff by granting Defendant costs in connection with this Motion, including counsels' fees, this component of Defendants' request is hereby denied in all respects, at this time;

and it is further

ORDERED, that the application of Plaintiff for an Order granting Plaintiff's Cross-Motion to compel disclosure pursuant to CPLR 3124; and denying Defendants' Motion to quash, for a Protective Order and sanctions, is hereby denied in all respects; and it is further

ORDERED, that the second application of Defendants is herein decided as follows:

a.As to the request for an Order, pursuant to CPLR 3211(a)(1) and (7), dismissing the corporate veil piercing claims which Plaintiff has wrongfully included in its Complaint, this component of Defendants' request is hereby granted in all respects;

b.As to the request for an Order, alternatively, pursuant to CPLR 603 and 2201, severing such corporate piercing veil claims from the remaining claims, and staying such claims until liability [*5]as to the remaining claims is fixed, this component of Defendants' request is hereby denied as same is rendered academic in light of the above decision of this Court;

and it is further.

ORDERED, that Counsel for Defendants COLLISION CONSULTANTS & OLIVERI is hereby directed to serve a copy of this order, with Notice of Entry, upon Counsel for all the remaining parties, and upon the Calendar Clerk of this Court within twenty (20) days of the date this order is entered by the Suffolk County Clerk.

Dated:Riverhead, New York

January 2, 2007

____________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.