Matter of Peerenboom v. Marvel Entertainment, LLC
Docket Index No. 162152/15|Appeal No. 6495|Case No. 2024-05234|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02727
- Docket numbers
- Index No162152/15Appeal No6495Case No2024-05234
Appeal from an order granting respondent's motion under CPLR 3111 and 3122(d) for reimbursement of reasonable production expenses incurred in responding to a subpoena.
Summary
The Appellate Division, First Department affirmed a lower court order requiring petitioner Harold Peerenboom to reimburse Marvel Entertainment, LLC for reasonable production expenses incurred in responding to a subpoena. The court held that under New York's CPLR the party seeking discovery must pay a nonparty's reasonable production costs, and that such costs can include third-party vendor charges and attorneys' fees. The court also upheld the trial court's reductions to requested attorney rates and rejected petitioner's reliance on federal balancing tests and arguments that certain withholding-related costs were categorically unrecoverable.
Issues Decided
- Whether a nonparty may recover reasonable production expenses, including attorneys' fees, under CPLR 3111 and 3122(d) when responding to a subpoena.
- Whether the trial court properly exercised its discretion in determining the amount of reimbursement and reducing requested hourly attorney rates.
- Whether costs related to withholding documents based on relevance or privilege are barred from recovery under the CPLR.
Court's Reasoning
The court relied on CPLR provisions that place the burden for a nonparty's reasonable production expenses on the party seeking discovery. It found the trial court properly exercised discretion by reviewing invoices and reducing attorney hourly rates to a blended rate actually proffered by respondent. The court rejected petitioner's attempt to import a federal balancing test and concluded New York law permits recovery of costs tied to producing documents and associated legal work, including reasonable fees for work related to withholding decisions.
Authorities Cited
- CPLR 3111, 3122(d)
- Matter of Barons Media, LLC v Shapiro Legal Group, PLLC231 AD3d 639 (1st Dept 2024)
- JHAC LLC v Advance Entertainment, LLC2022 NY Slip Op 30251[U] (Sup Ct, NY County 2022)
Parties
- Petitioner
- Harold Peerenboom
- Respondent
- Marvel Entertainment, LLC
- Nonparty-Respondent
- Isaac Perlmutter
- Judge
- Nancy M. Bannon
Key Dates
- Decision date
- 2026-04-30
- Lower court order entered
- 2024-07-25
What You Should Do Next
- 1
Pay the awarded reimbursement
The subpoenaing party should comply with the lower court's order and pay the amount determined by the trial court, unless it seeks further relief.
- 2
Consider motion for reargument or leave to appeal
If a party believes there are grounds, they may consult counsel about seeking reargument in the Appellate Division or leave to appeal to the Court of Appeals within applicable time limits.
- 3
Document and invoice future production costs carefully
Nonparty witnesses should keep detailed invoices for vendor charges and attorney time to support reasonable-cost requests in future subpoenas.
Frequently Asked Questions
- What did the court decide?
- The appeals court affirmed that the party who subpoenaed documents must pay a nonparty's reasonable costs for producing those documents, including certain attorney fees and vendor charges.
- Who is affected by this ruling?
- Nonparty witnesses and subpoenaing parties in New York civil cases are affected because nonparties can recover reasonable production expenses under the CPLR.
- Does this let nonparties recover all legal fees?
- No. The court allows recovery of reasonable production expenses, which can include attorney fees, but the trial court may reduce rates and exercise discretion over what is reasonable.
- Can a party rely on federal balancing tests to avoid paying costs?
- No. The Appellate Division rejected petitioner’s attempt to apply a federal balancing test and applied New York CPLR provisions instead.
- What happens next?
- Because the appellate court affirmed, the lower court's order requiring reimbursement stands and Marvel may be reimbursed the amount the trial court determined.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Peerenboom v Marvel Entertainment, LLC - 2026 NY Slip Op 02727 Matter of Peerenboom v Marvel Entertainment, LLC 2026 NY Slip Op 02727 April 30, 2026 Appellate Division, First Department In the Matter of Harold Peerenboom, Petitioner-Appellant, v Marvel Entertainment, LLC, Respondent-Respondent. Isaac Perlmutter, Nonparty-Respondent. Decided and Entered: April 30, 2026 Index No. 162152/15|Appeal No. 6495|Case No. 2024-05234| Before: Kennedy, J.P., Gesmer, González, Rosado, Chan, JJ. Buchanan Ingersoll & Rooney PC, New York (Stuart P. Slotnick of counsel), for appellant. Haynes and Boone, LLP, New York (David Fleischer of counsel), for Marvel Entertainment, LLC, respondent. Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 25, 2024, which, to the extent appealed from as limited by the briefs, granted respondent's motion under CPLR 3111 and 3122(d) for reimbursement of its reasonable production expenses incurred in responding to a subpoena, unanimously affirmed, without costs. Initially, we reject petitioner's contention that no costs should have been awarded based on a balancing test formulated by the federal courts under federal rules. Under the CPLR, "[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery" (CPLR 3111, 3122[d]). Supreme Court providently exercised its discretion in granting respondent's motion for reimbursement as a nonparty witness seeking to recover the reasonable production expenses incurred while producing documents in response to a subpoena from petitioner, and in determining the amount due to respondent in this proceeding ( see Matter of Barons Media, LLC v Shapiro Legal Group, PLLC , 231 AD3d 639, 640 [1st Dept 2024]). Respondent provided invoices reflecting the production costs incurred, including third-party vendor costs and attorneys' fees. Contrary to petitioner's contention, attorneys' fees are available for inclusion in the award of expenses ( see id. ). Supreme Court providently reduced the hourly rates sought by respondent, using the blended rate initially proffered by respondent, which was less than the hourly attorney fee rate used in its motion for reimbursement ( see e.g. JHAC LLC v Advance Entertainment, LLC , 2022 NY Slip Op 30251[U], *6 [Sup Ct, NY County 2022]). Further, the CPLR does not bar recovery of costs related to withholding documents based on relevance or privilege ( see generally Barons Media, LLC , 231 AD3d at 640, citing 22 NYCRR 202.70, Appendix A, VIII [B] [1]). That some courts have declined to award costs expended to decide whether documents are privileged or irrelevant does not bar such recovery here ( cf. Peters v Peters , 2016 NY Slip Op 31254[U], *4-5 [Sup Ct, NY County 2016]). We have considered petitioner's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 30, 2026