BRUMMER v. Financial Industry Regulatory Authority, Inc., Non-Party Appellant. (2020)

Order, Supreme Court, New York County (Lucy Billings, J.), entered July 29, 2019, which granted defendants Benjamin Wey and New York Capital LLC d/b/a New York Global Group's (defendants) motion to quash a nonparty subpoena issued to Verizon Online LLC and for a protective order, unanimously reversed, on the law, with costs, and the motion denied.  Order, same court and Justice, entered September 20, 2019, which, insofar as appealed from, denied in part plaintiff's motion for leave to file a second amended complaint, unanimously reversed, on the law and the facts, with costs, and the motion granted in full.  Order, same court and Justice, entered January 28, 2020, which granted defendants' motion to compel pursuant to the terms of stipulation between itself and nonparty Financial Industry Regulatory Authority, Inc. (FINRA), unanimously reversed, on the law, with costs, and the motion denied.

Leave to amend a complaint should be freely given absent prejudice or surprise so long as the proposed claims are not palpably insufficient or devoid of merit (see McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 [1st Dept. 2012];  CPLR 3025[b] ).  Here, the court should have granted plaintiff leave to file the second amended complaint to include the subsequent allegations of defamation (Gottwald v. Sebert, 172 A.D.3d 445, 99 N.Y.S.3d 295 [1st Dept. 2019];  Pickholz v. First Boston, 202 A.D.2d 277, 608 N.Y.S.2d 659 [1st Dept. 1994] ).  Further, the allegations of intentional infliction of emotional distress alleged in the proposed second amended complaint are “governed by the continuing tort doctrine, permitting the plaintiff to rely on wrongful conduct occurring more than one year” prior to seeking leave to amend (Shannon v. MTA Metro–N. R.R., 269 A.D.2d 218, 219, 704 N.Y.S.2d 208 [1st Dept. 2000];  see Estreicher v. Oner, 148 A.D.3d 867, 867–868, 49 N.Y.S.3d 530 [2d Dept. 2017] ).  The court improvidently exercised its discretion in denying leave to amend insofar as plaintiff sought to allege claims for assault and battery, which show the scope of defendants' alleged harassment and, as such, are inextricably interrelated to the intentional infliction of emotional distress claim.

The information subpoena from nonparty Verizon Online LLC by plaintiff was not “utterly irrelevant” or obviously futile (Matter of Kapon v. Koch, 23 N.Y.3d 32, 34, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ).  In any event, the time period for which plaintiff sought the information is directly relevant to the updated allegations in the second amended complaint.

We reject defendants' argument that the stipulation between them and FINRA compelled the latter to disclose records containing direct communications between it and plaintiff.  Pursuant to the plain meaning of the stipulation, FINRA agreed only to produce communications between and among itself and other third parties to this litigation regarding plaintiff or the individual defendant.  Since plaintiff is a party, direct communications with him are not covered.

We have considered defendants' remaining arguments and find them unavailing.