BLUE RIBBON BAGS LLC v. LBF TRAVEL INC (2023)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered January 13, 2023, which granted plaintiff Blue Ribbon Bags, LLC motion to compel production of books and records, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in granting the motion for production of books, records and financials.  The order on appeal conforms with a prior order, entered August 5, 2022, granting a motion to compel a third-party audit of LBF's books and records in accordance with the terms of the parties' marketing and sales agreement (see 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 486, 878 N.Y.S.2d 727 [1st Dept. 2009]).  Furthermore, the August 2022 order, which LBF did not appeal, contained no limitations with respect to the time period of the audit.  Indeed, the trial court's statement at oral argument that Blue Ribbon should not have to accept LBF's representations regarding sales figures suggests that the court contemplated disclosure of records beyond the date on which LBF had purportedly stopped using Blue Ribbon's product or technology.

LBF's collateral attacks on the August 5, 2022 order are improper.  As already noted, LBF failed to appeal or otherwise challenge Supreme Court's finding that a provision contained in the parties' marketing and sales agreement entitled Blue Ribbon to a complete audit (see Board of Directors of Windsor Owners Corp. v. Platt, 148 A.D.3d 645, 646, 49 N.Y.S.3d 293 [1st Dept. 2017], lv dismissed 30 N.Y.3d 986, 66 N.Y.S.3d 213, 88 N.E.3d 371 [2017];  see also Matter of Vasciannio v. Nedrick, 305 A.D.2d 420, 421, 758 N.Y.S.2d 534 [2d Dept. 2003], lv denied 100 N.Y.2d 513, 767 N.Y.S.2d 394, 799 N.E.2d 617 [2003]).  Moreover, LBF's arguments that Blue Ribbon's discovery requests are overbroad, palpably improper, or irrelevant were never raised before Supreme Court in opposition to Blue Ribbon's motion, and thus, are unpreserved for our review (see 324 E. 9th St. Corp. v. Acordia Northeast–N.Y., 29 A.D.3d 367, 367, 815 N.Y.S.2d 498 [1st Dept. 2006]).