Preview
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------X
JOSEPH HERTZ,
Plaintiff, Index No.:
526061/2019
-against-
AFFIRMATION IN
SAMUEL HERTZ, Individually, and as the SUPPORT OF
Nominated Executor of the Purported Last Will & ORDER TO SHOW
Testament of Mira Hertz, dated November 26, 2008, CAUSE
and as Trustee of the Purported Mira Hertz
Revocable Trust Agreement, dated November 26,
2008, and as Trustee of the Purported Mira Hertz
Family Trust Agreement, dated November 26, 2008,
Defendant.
---------------------------------------------------------------------X
JUSTIN M. PICCIONE, an attorney duly admitted to practice law
before the Courts of the State of New York, hereby affirms the following to
be true under the penalty of perjury:
1. I am a partner with the law firm of Rivkin Radler LLP, attorneys
for the Defendant Samuel Hertz (“Defendant” or “Sam”) in the within action.
I respectfully submit this affirmation in support of Defendant’s motion for an
Order: (i) pursuant to CPLR 2221(d), granting leave to reargue Defendant’s
cross-motion to strike and for a protective order and in opposition to Plaintiff’s
motion to compel; (ii) upon reargument, vacating the portion of the Court’s
Order, dated May 11, 2022, and served with notice of entry on May 17, 2022
(the “Order”) that denied Defendant’s cross-motion in its entirety and
1 of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
granted, in part, Plaintiff’s motion to compel by directing Defendant to
respond to Plaintiff’s discovery demands dated June 12, 2020, February 20,
2021, and January 14, 2022 in their entirety; (iii)granting a stay pursuant to
CPLR 2201 pending a hearing and determination of Defendant’s motion to
reargue; and (iv) in the alternative, granting Defendant a 30-day extension
of time to respond to the Order pursuant to CPLR 2004; and (v) awarding
such other and further relief as the Court deems just and proper under the
circumstances.
2. This application is being brought by order to show cause instead
of notice of motion because the Defendant is seeking immediate interim relief
in the form of a stay pursuant to CPLR 2201 or, in the alternative, an
extension of time to comply with the Court’s order pursuant to CPLR 2004.
The deadline to comply with the Court’s Order is rapidly approaching and
unless an immediate stay is issued or an extension of time granted,
Defendant’s well-established rights under the CPLR and NY law to seek
leave to reargue before this Court will essentially be rendered moot if the
time to comply with the Order expires while the reargument motion is sub
judice. As such, immediate interim relief in the form of a temporary stay is
warranted to prevent irreparable harm to Defendant and in the interests of
justice.
2 of
2 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
3. Plaintiff was given reasonable notice of this application. A copy
of the Defendant’s Affirmation of Compliance With 202.7(f) of the Uniform
Rules is attached hereto as Exhibit “A”.
FACTS RELEVANT TO THE PRESENT MOTION
A. Introduction And Prior Extensive Discovery
4. This is a straightforward trust contest involving two brothers –
Plaintiff and Defendant. Specifically, Plaintiff seeks to invalidate two trust
instruments that were created in 2008 by his now deceased mother, Mira
Hertz (“Decedent”), on the grounds that such instruments were the product
of “undue influence” perpetrated by Defendant upon the Decedent. Plaintiff
also seeks to impose a constructive trust over all payments allegedly
wrongfully withheld by the Defendant from Plaintiff and/or Plaintiff’s children.
Attached collectively as Exhibit “B” is Plaintiff’s Complaint and Defendant’s
Answer.
5. Despite the rather limited and uncomplicated nature of the relief
sought by Plaintiff in this action, Plaintiff has engaged in pervasive dilatory
discovery tactics throughout this action. Indeed, to date, Plaintiff has served
three separate and voluminous discovery demands directed at the
Defendant, which, in total, consist of more than 158 separate demands, with
many demands containing multiple sub-sections and some even containing
3 of
3 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
“sub-sub” sections. A copy of Plaintiff’s three voluminous discovery notices
dated 6/12/2020, 12/20/20211, and 1/14/2022 are attached hereto
collectively as Exhibit “C.” A copy of Defendant’s Responses and
Objections to each of Plaintiff’s three disclosure notices are attached hereto
collectively as Exhibit “D”.
6. By way of example, Plaintiff’s First Notice of Discovery and
Inspection, dated June 12, 2020, contained 87 separate demands—most of
which were overbroad, unduly burdensome, vague, duplicative, and palpably
improper. Yet, despite Plaintiff’s improper demands, Defendant made a
good faith effort to comply and produced about 226 responsive documents.
7. In addition to extensive document discovery, Plaintiff has
deposed seven witnesses, including the Defendant’s deposition, which
lasted two days, and six non-party depositions, each lasting one or more
days. As with Plaintiff’s document requests, these depositions sought
information that was mostly irrelevant to the subject matter of this action
and/or that was clearly shielded from disclosure by the attorney-client
privilege and/or work-product doctrine.
1 The Court’s Order refers to one of Plaintiff’s three disclosure notices as being dated
2/20/21. No such notice with this date exits. I assume this was a mere typo in the
Order and the Court is actually referring to Plaintiff’s demand dated 12/20/21.
4 of
4 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
8. Following the Defendant’s deposition, Plaintiff then made an
additional 20 discovery requests by letter-demand dated December 20,
2021. These requests sought documents from November 26, 2005 to the
present—a date range spanning nearly 17 years. The Defendant objected
to Plaintiff’s unduly burdensome and overly broad request, which clearly
exceeded the scope of what is required or permitted under the CPLR and
the law.
9. In January 2022, Plaintiff propounded his third voluminous
discovery notice, which, remarkably, was even more improper than his first
two sets of discovery notices. Specifically, Plaintiff’s Supplemental
Demands sought 51 separate requests, with many of those requests
seeking palpably irrelevant documents dating back more than a decade-and-
a-half along with documents and that are immune from discovery because
of the attorney-client privilege, work-product doctrine, and/or because of their
confidential and private nature.
10. Once again, and notwithstanding the palpably improper nature of
Plaintiff’s supplemental demands, on or about February 22, 2022, the
Defendant timely responded to Plaintiff’s supplemental demands. Although
Defendant properly objected on multiple grounds to many of Plaintiff’s
improper requests, Defendant still provided, among other things, 731 items
5 of
5 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
in response to Plaintiff’s supplemental document request. These records
included, among other things, the engagement letter between the Defendant
and Rivkin Non-Parties, legal bills and associated documents, photographs,
and videos.
11. On February 24, 2022, the Rivkin Non-Parties were served with
four Subpoenas Duces Tecum. The Subpoenas Duces Tecum sought
privileged documents and communications between the Rivkin Non-Parties
and their clients, the Decedent and the Defendant, as well as documents
regarding unrelated matters. These Subpoenas Duces Tecum are attached
hereto as Exhibit “E”.
12. On March 24, 2022, the Rivkin Non-Parties served Responses
and Objections to the Subpoenas on numerous grounds including that the
Subpoenas sought the discovery of information protected by the attorney-
client privilege. A copy of the non-parties responses and objections is
attached hereto collectively as Exhibit “F”.
B. The Plaintiff’s Motion to Compel
13. By Notice of Motion dated April 22, 2022, the Plaintiff moved,
pursuant to CPLR §3124, for an Order directing the Defendant, among other
things, to produce documents and compelling the Rivkin Non-Parties to
6 of
6 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
comply with the Subpoenas Duces Tecum. A copy of the Plaintiff’s motion
(without exhibits) is attached hereto as Exhibit “G”.
14. Defendant opposed this motion establishing that Plaintiff’s
discovery notices are palpably improper because, among other things, they
seek items that are totally irrelevant to the subject matter of this action or that
are otherwise protected from disclosure under the attorney-client privilege
and/or work-product doctrine. The Defendant’s opposition (without exhibits)
is attached hereto as Exhibit “H”.
15. The Rivkin Non-Parties similarly opposed this relief. This
opposition is attached hereto as Exhibit “I”.
C. The Defendant’s Cross-Motion For A Protective Order
16. By notice of cross-motion dated, May 4, 2022, the Defendant
cross-moved to strike Plaintiff’s three improper disclosure notices in their
entirety and for a protective order pursuant to CPLR §3103 on the basis that,
among other things, the information sought by the Plaintiff was protected by
the attorney-client privilege, work product doctrine, confidential and/or totally
unrelated and immaterial to the present action. The Defendant’s cross-
motion is attached hereto as Exhibit “J”. Plaintiff’s opposition to the cross-
motion is attached as Exhibit “K”.
D. The Order That Is The Subject Of This Motion
7 of
7 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
17. By Order dated May 11, 2022, this Court (Knipel, J.) granted the
Plaintiff’s motion to compel in part and denied the Defendant’s cross-motion
to strike plaintiff’s improper discovery notices and for a protective order in its
entirety. Among other things, the Court found that any attorney-client
privilege that may have existed between the Rivkin non-parties and
Decedent was terminated by the Decedent’s death so that the assertion of
privilege does not stand. The Court further noted that the claim of attorney
work product does not stand because the documents demanded were not
created as a consequence of this litigation. A copy of the Court’s Order dated
May 11, 2022 is attached as Exhibit “L”.
18. Pursuant to the Order, and based on Plaintiff’s service of the
Order with notice of entry, the Defendant and the Rivkin Non-Parties have
until June 17, 2022 to disclose, among other things, the privileged and
confidential information, which – importantly – is also the deadline for
Defendant to move for leave to reargue the May 2022 Order.
E. Relief Sought in the Appellate Division, Second Department
19. Defendant and non-party Rivkin Radler each filed a Notice of
Appeal from this Court’s May 11, 2022 Order. See Exhibit “M” (notices of
appeal).
8 of
8 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
20. In addition, on Friday, June 10th, 2022, Defendant (along with the
Rivkin non-parties) moved by order to show cause for interim relief seeking
a stay of the enforcement of this court’s Order pending appeal pursuant to
CPLR §5519(c). The Appellate division signed the order to show cause but
struck the TRO language. The return date of the order to show cause is
June 21, 2022. A copy of the signed order to show cause is attached as
Exhibit “N”. Notably, the return date of the appellate division order to show
cause (June 21, 2022) in which Defendant is seeking a stay of the
enforcement of this Court’s Order pending appeal is four days after the
deadline to comply with this Court’s order, which is June 17, 2022.
F. Other Relevant Pending Motions
21. There are four other motions pending that are all sub judice: (1)
Plaintiff’s motion to disqualify Defendant’s counsel, Rivkin Radler, the law
firm that drafted the Purported Will, Purported Trust and/or Purported Family
Trust and represented both the Decedent and the Defendant; (2)
Defendant’s motion to consolidate this matter with another case involving
Plaintiff and Defendant pending in Supreme Court, Kings County, Index No.
517800/2020; (3) Defendant’s motion to transfer this matter to the Kings
County Surrogate’s Court since this matter clearly concerns the affairs of a
decedent’s estate; and (4) Defendant’s motion to stay discovery pending
9 of
9 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
resolution of the above-mentioned motions. Counsel for the parties
appeared virtually for oral argument before the Honorable Richard
Velasquez on November 29, 2021. A helpful chart summarizing the pending
motions, which chart was prepared by Plaintiff in connection with Plaintiff’s
motion to compel, is annexed hereto as Exhibit “O”.
RELEVANT LEGAL STANDARDS
22. Reargument. A motion for leave to reargue “shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the court
in determining the prior motion, but shall not include any matters of fact not
offered on the prior motion.” See CPLR 2221(d)(2). “Motions for reargument
are addressed to the sound discretion of the court which decided the prior
motion and may be granted upon a showing that the court overlooked or
misapprehended the facts or law or for some reason mistakenly arrived at its
earlier decision.” Carrillo v PM Realty Group, 16 A.D.3d 611, 611 (2d Dept.
2005).
23. Stay. CPLR 2201 provides that “except where otherwise
prescribed by law, the court in which an action is pending may grant a stay
of proceedings in a proper case, upon such terms as may be just.” It’s well-
settled that, pursuant to CPLR 2201, “a court has broad discretion to grant a
stay in order to avoid the risk of inconsistent adjudications, application of
10
10
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
proof and potential waste of judicial resources.” Matter of Tenenbaum, 81
AD3d 738,739 (2d Dept. 2011)(internal citation and quotations omitted). See
also Rhodes v. Mosher, 115 A.D.2d 351 (4th Dept. 1985)(noting that CPLR
§ 2201 authorizes a Court to “grant a stay of proceedings in a proper case,
upon such terms as may be just.”).
24. “The issuance of a stay pursuant to CPLR 2201 is discretionary
in the trial court.” Research Corp v. Singer-General Precision Inc., 36 A.D.2d
987, 988 (3d Dept. 1971). In exercising its discretion under CPLR § 2201,
the Court must weigh “the prejudice to the moving party by denying a motion
balanced against the prejudice to the non-movant by granting the motion.”
Nezry v. Haven Ave Owner LLC, 28 Misc.3d 1226(A) at *4 (Sup. Ct. N.Y.
County 2010). A stay is warranted when “there exists some articulable
reason, such as a showing of prejudice,” Estate of Salerno v. Estate of
Salerno, 154 A.D.2d 430, 430 (2d Dept. 1989), and “when other remedies
are inadequate and the equities invoked apparent and strong.” Croker v. New
York Trust Co., 206 A.D. 11, 13 (1st Dept. 1923).
25. As an aside, it’s worth mentioning that, in addition to CPLR 2201,
pursuant to CPLR § 326(a), this Court is permitted to issue a stay of
proceedings where, as here, a party seeks removal under CPLR §325(e),
which expressly permits the Supreme Court to remove a case from the
11
11
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
Supreme Court to the Surrogate’s Court where a decedent’s estate is
affected or where an action pending in the supreme court affects the
administration of a decedent's estate. See CPLR § 325(e). See also Nichols
v. Kruger, 493 N.Y.S.2d 605 (2d Dept. 1986) (recognizing the Supreme
Court's independent authority to make such a transfer pursuant to § 19(a) of
Article VI of the Constitution.). As noted above supra., Defendant previously
moved by notice of motion for a stay under both CPLR 2201 and/or 324,
albeit for different reasons than those necessitating the immediate stay
requested in this present application. This prior motion for a stay – which
was fully submitted nearly 7 months ago, is still currently sub judice before
Judge Velasquez.
26. Extensions of Time. CPLR 2201 provides as follows: “except
where otherwise expressly prescribed by law, the court may extend the time
fixed by any statute, rule or order for doing any act, upon such terms as may
be just and upon good cause shown, whether the application for extension
is made before or after the expiration of the time fixed.” In considering a
motion for an extension of time, “the court may properly consider factors such
as the length of the delay, whether the opposing party has been prejudiced
by the delay, the reason given for the delay, whether the moving party was
in default before seeking the extension, and, if so, the presence or absence
12
12
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
of an affidavit of merit.” See Tewari v Tsoutsouras, 75 N.Y.2d 1, 12; see also
Matter of Village of Haverstraw v Ray Riv. Co., 137 A.D.3d 800, 801).
27. Applying the legal principles set forth above to the facts of the
present case, this Court should grant Defendant’s motion in its entirety.
ARGUMENT
I. This Court Should Grant Defendant Leave to Reargue and,
Upon Reargument, Vacate that Portion of the Court’s Order
Denying Defendant’s cross-motion in its entirety and granting,
in part, Plaintiff’s motion to compel by Directing Defendant to
Respond to Plaintiff’s Improper Disclosure Notices In Their
Entirety.
28. As set forth below, this Court should grant Defendant’s request
for leave to reargue for at least three reasons: (1) the court erroneously
concluded that the attorney-client privilege doesn’t survive the death of a
client (which it does); (2) the court erroneously concluded that the attorney
work product doctrine doesn’t apply because the documents demanded
were not created as a consequence of this litigation (which is irrelevant to a
claim based on attorney work-product); and (3) the Court granted Plaintiff’s
motion to compel with respect to all three of Plaintiff’s disclosure notices in
their entirety even though Plaintiff only discussed certain specific requests in
his moving papers, which requests are palpably improper. Each of these
three reasons to grant Defendant’s motion to reargue is discussed in turn
below.
13
13
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
A. In denying the Defendant’s cross-motion
for a protective order, the Court overlooked
or misapprehended the law to the extent
that it concluded that the attorney-client
privilege doesn’t survive the death of a
client.
29. Although CPLR §3101(a) provides for full disclosure of all matter
material and necessary in the prosecution or defense of an action, this
principle is limited by CPLR 3101(b), which makes privileged matter
absolutely immune from discovery. Spectrum Sys. Intl. Corp. v. Chemical
Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991); 1415, LLC v. New York Mar.
& Gen. Ins. Co., 181 A.D.3d 629, 121 N.Y.S.3d 118 (2d Dep’t 2020).
The Court’s conclusion that any attorney-client privilege terminated upon the
decedent’s death is wrong. It’s well established that the attorney-client
privilege survives the client’s death. Mayorga v. Tate, 302 A.D.2d 11, 752
N.Y.S.2d 353 (2d Dep’t. 2002). “The death of the client puts an irrevocable
seal upon all privileged communications to counsel, unless the client, while
alive, waived the privilege”. Prince, Richardson on Evidence § 5-210. See
also People v. Vespucci, 745 N.Y.S.2d 391 (Nassau Co. Ct. 2002) (surveying
five approaches to issue of whether privilege survives, and finding support in
New York law for two of the five approaches, both involving survival of the
privilege, when privilege belonged to a deceased individual rather than an
14
14
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
“expired corporation”); Mayorga v. Tate, 302 A.D.2d at 11-12 (asserting that
“the attorney-client privilege … survives the death of the client for whose
benefit the privilege exists” and citing cases)
30. In Swidler & Berlin, 524 U.S. 399, 118 S. Ct. 2081 (1998), the
Supreme Court found that “[i]t has been generally, if not universally,
accepted, for well over a century, that the attorney-client privilege survives
the death of the client” where the client is an individual. 524 U.S. at 410. The
Court reasoned that “[k]nowing that communications will remain confidential
even after death encourages the client to communicate fully and frankly with
counsel” because “[c]lients may be concerned about reputation, civil liability,
or possible harm to friends or family. Posthumous disclosure of such
communications may be as feared as disclosure during the client’s lifetime.”
Id. at 407.
31. As such, because this court overlooked or misapprehended the
law by concluding that the decedent’s attorney client privilege terminates
upon death, this Court should grant leave to reargue and, upon reargument,
strike Plaintiff’s impermissible requests calling for the production of privileged
15
15
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
items or, in the alternative, grant Defendant’s cross-motion for a protective
order.2
B. This Court overlooked or misapprehended
the law to the extent it concluded that the
work product doctrine doesn’t apply
because the documents demanded were
not created as a consequence of this
litigation.
32. The New York attorney work product doctrine provides an
absolute protection for materials that are uniquely the product of an
attorney's learning and professional skills. CPLR 3101(c); see People v.
Kozlowski, 869 N.Y.S.2d 848, 862 (2008). Among other things, New York
law distinguishes between the attorney work product doctrine and the trial
preparation privilege, which is a separate privilege. Indeed, as one legal
practice guide has explained, because the CPLR separates the protection
for work product and for materials prepared for litigation or for trial (i.e., the
trial preparation privilege), the restriction that work product protection be tied
to an anticipated litigation does not exist in the CPLR. And while it’s true that
2 Although not stated directly in the Order, in grating that branch of Plaintiff’s motion
seeking to compel responses to all three of Plaintiff’s voluminous disclosure notices in
-
their entirety, this Court implicitly rejected Defendant’s assertion of attorney client
privilege not just between Decedent and her attorneys but also between Defendant and
his attorneys. As such, to the extent that this Court rejected Defendant’s attorney-client
privilege claim as it pertains to himself, and to the extent that this Court’s order requires
the disclosure of potentially privileged documents or communications, Defendant
respectfully requests leave to reargue this point and, upon reargument, sustain
Defendant’s objections based on privilege or, in the alternative, grant a protective order.
16
16
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
it’s not entirely clear whether an “anticipation of litigation” must exist at the
time of the material’s creation for work product protection to apply, case law
exists that suggests that an anticipation of litigation is not a necessary
requirement. See e.g., Kozlowski, 869 N.Y.S.2d at 861 ("when particular
work product is generated for litigation, courts have tended to classify it as
trial preparation material"); Gilbert v. Office of the Governor, 96 N.Y.S.3d
724, 726-27 (3d Dep't 2019) (finding that the work product doctrine protected
attorney's preliminary drafts of a letter terminating a sublease without
discussing any litigation motive); Aetna Cas. & Sur., 692 N.Y.S.2d at 386
(citing meeting minutes not being prepared in anticipation of litigation as a
grounds to find no protection under CPLR 3101(d)(2) but not for denying
work product protection under CPLR 3101(c)).
33. As such, to the extent that this Court’s Order conflates the work
product doctrine (which does not have an “anticipation of litigation”
requirement) with the trial preparation privilege (which does have such a
requirement), this Court overlooked and misapprehended the law as it
relates to the work product doctrine and, therefore, leave to reargue is
warranted.
34. In addition, contrary to the apparent finding in the Court’s Order,
the work product protection is not limited to the litigation for which the
17
17
of 32
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022
attorney prepared the materials and continues to apply in any later legal
proceedings. Kinge v. State, 754 N.Y.S.2d 717, 721 (3d Dep't 2003);
Corcoran v. Peat, Marwick, Mitchell & Co., 542 N.Y.S.2d 642, 643 (1st Dep't
1989)). As one court aptly put it, “an attorney's work product is privileged
both in the context of the litigation for which it was prepared
Preview
FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSEPH HERTZ, Plaintiff, Index No.: 526061/2019 -against- AFFIRMATION IN SAMUEL HERTZ, Individually, and as the SUPPORT OF Nominated Executor of the Purported Last Will & ORDER TO SHOW Testament of Mira Hertz, dated November 26, 2008, CAUSE and as Trustee of the Purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Family Trust Agreement, dated November 26, 2008, Defendant. ---------------------------------------------------------------------X JUSTIN M. PICCIONE, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am a partner with the law firm of Rivkin Radler LLP, attorneys for the Defendant Samuel Hertz (“Defendant” or “Sam”) in the within action. I respectfully submit this affirmation in support of Defendant’s motion for an Order: (i) pursuant to CPLR 2221(d), granting leave to reargue Defendant’s cross-motion to strike and for a protective order and in opposition to Plaintiff’s motion to compel; (ii) upon reargument, vacating the portion of the Court’s Order, dated May 11, 2022, and served with notice of entry on May 17, 2022 (the “Order”) that denied Defendant’s cross-motion in its entirety and 1 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 granted, in part, Plaintiff’s motion to compel by directing Defendant to respond to Plaintiff’s discovery demands dated June 12, 2020, February 20, 2021, and January 14, 2022 in their entirety; (iii)granting a stay pursuant to CPLR 2201 pending a hearing and determination of Defendant’s motion to reargue; and (iv) in the alternative, granting Defendant a 30-day extension of time to respond to the Order pursuant to CPLR 2004; and (v) awarding such other and further relief as the Court deems just and proper under the circumstances. 2. This application is being brought by order to show cause instead of notice of motion because the Defendant is seeking immediate interim relief in the form of a stay pursuant to CPLR 2201 or, in the alternative, an extension of time to comply with the Court’s order pursuant to CPLR 2004. The deadline to comply with the Court’s Order is rapidly approaching and unless an immediate stay is issued or an extension of time granted, Defendant’s well-established rights under the CPLR and NY law to seek leave to reargue before this Court will essentially be rendered moot if the time to comply with the Order expires while the reargument motion is sub judice. As such, immediate interim relief in the form of a temporary stay is warranted to prevent irreparable harm to Defendant and in the interests of justice. 2 of 2 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 3. Plaintiff was given reasonable notice of this application. A copy of the Defendant’s Affirmation of Compliance With 202.7(f) of the Uniform Rules is attached hereto as Exhibit “A”. FACTS RELEVANT TO THE PRESENT MOTION A. Introduction And Prior Extensive Discovery 4. This is a straightforward trust contest involving two brothers – Plaintiff and Defendant. Specifically, Plaintiff seeks to invalidate two trust instruments that were created in 2008 by his now deceased mother, Mira Hertz (“Decedent”), on the grounds that such instruments were the product of “undue influence” perpetrated by Defendant upon the Decedent. Plaintiff also seeks to impose a constructive trust over all payments allegedly wrongfully withheld by the Defendant from Plaintiff and/or Plaintiff’s children. Attached collectively as Exhibit “B” is Plaintiff’s Complaint and Defendant’s Answer. 5. Despite the rather limited and uncomplicated nature of the relief sought by Plaintiff in this action, Plaintiff has engaged in pervasive dilatory discovery tactics throughout this action. Indeed, to date, Plaintiff has served three separate and voluminous discovery demands directed at the Defendant, which, in total, consist of more than 158 separate demands, with many demands containing multiple sub-sections and some even containing 3 of 3 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 “sub-sub” sections. A copy of Plaintiff’s three voluminous discovery notices dated 6/12/2020, 12/20/20211, and 1/14/2022 are attached hereto collectively as Exhibit “C.” A copy of Defendant’s Responses and Objections to each of Plaintiff’s three disclosure notices are attached hereto collectively as Exhibit “D”. 6. By way of example, Plaintiff’s First Notice of Discovery and Inspection, dated June 12, 2020, contained 87 separate demands—most of which were overbroad, unduly burdensome, vague, duplicative, and palpably improper. Yet, despite Plaintiff’s improper demands, Defendant made a good faith effort to comply and produced about 226 responsive documents. 7. In addition to extensive document discovery, Plaintiff has deposed seven witnesses, including the Defendant’s deposition, which lasted two days, and six non-party depositions, each lasting one or more days. As with Plaintiff’s document requests, these depositions sought information that was mostly irrelevant to the subject matter of this action and/or that was clearly shielded from disclosure by the attorney-client privilege and/or work-product doctrine. 1 The Court’s Order refers to one of Plaintiff’s three disclosure notices as being dated 2/20/21. No such notice with this date exits. I assume this was a mere typo in the Order and the Court is actually referring to Plaintiff’s demand dated 12/20/21. 4 of 4 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 8. Following the Defendant’s deposition, Plaintiff then made an additional 20 discovery requests by letter-demand dated December 20, 2021. These requests sought documents from November 26, 2005 to the present—a date range spanning nearly 17 years. The Defendant objected to Plaintiff’s unduly burdensome and overly broad request, which clearly exceeded the scope of what is required or permitted under the CPLR and the law. 9. In January 2022, Plaintiff propounded his third voluminous discovery notice, which, remarkably, was even more improper than his first two sets of discovery notices. Specifically, Plaintiff’s Supplemental Demands sought 51 separate requests, with many of those requests seeking palpably irrelevant documents dating back more than a decade-and- a-half along with documents and that are immune from discovery because of the attorney-client privilege, work-product doctrine, and/or because of their confidential and private nature. 10. Once again, and notwithstanding the palpably improper nature of Plaintiff’s supplemental demands, on or about February 22, 2022, the Defendant timely responded to Plaintiff’s supplemental demands. Although Defendant properly objected on multiple grounds to many of Plaintiff’s improper requests, Defendant still provided, among other things, 731 items 5 of 5 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 in response to Plaintiff’s supplemental document request. These records included, among other things, the engagement letter between the Defendant and Rivkin Non-Parties, legal bills and associated documents, photographs, and videos. 11. On February 24, 2022, the Rivkin Non-Parties were served with four Subpoenas Duces Tecum. The Subpoenas Duces Tecum sought privileged documents and communications between the Rivkin Non-Parties and their clients, the Decedent and the Defendant, as well as documents regarding unrelated matters. These Subpoenas Duces Tecum are attached hereto as Exhibit “E”. 12. On March 24, 2022, the Rivkin Non-Parties served Responses and Objections to the Subpoenas on numerous grounds including that the Subpoenas sought the discovery of information protected by the attorney- client privilege. A copy of the non-parties responses and objections is attached hereto collectively as Exhibit “F”. B. The Plaintiff’s Motion to Compel 13. By Notice of Motion dated April 22, 2022, the Plaintiff moved, pursuant to CPLR §3124, for an Order directing the Defendant, among other things, to produce documents and compelling the Rivkin Non-Parties to 6 of 6 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 comply with the Subpoenas Duces Tecum. A copy of the Plaintiff’s motion (without exhibits) is attached hereto as Exhibit “G”. 14. Defendant opposed this motion establishing that Plaintiff’s discovery notices are palpably improper because, among other things, they seek items that are totally irrelevant to the subject matter of this action or that are otherwise protected from disclosure under the attorney-client privilege and/or work-product doctrine. The Defendant’s opposition (without exhibits) is attached hereto as Exhibit “H”. 15. The Rivkin Non-Parties similarly opposed this relief. This opposition is attached hereto as Exhibit “I”. C. The Defendant’s Cross-Motion For A Protective Order 16. By notice of cross-motion dated, May 4, 2022, the Defendant cross-moved to strike Plaintiff’s three improper disclosure notices in their entirety and for a protective order pursuant to CPLR §3103 on the basis that, among other things, the information sought by the Plaintiff was protected by the attorney-client privilege, work product doctrine, confidential and/or totally unrelated and immaterial to the present action. The Defendant’s cross- motion is attached hereto as Exhibit “J”. Plaintiff’s opposition to the cross- motion is attached as Exhibit “K”. D. The Order That Is The Subject Of This Motion 7 of 7 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 17. By Order dated May 11, 2022, this Court (Knipel, J.) granted the Plaintiff’s motion to compel in part and denied the Defendant’s cross-motion to strike plaintiff’s improper discovery notices and for a protective order in its entirety. Among other things, the Court found that any attorney-client privilege that may have existed between the Rivkin non-parties and Decedent was terminated by the Decedent’s death so that the assertion of privilege does not stand. The Court further noted that the claim of attorney work product does not stand because the documents demanded were not created as a consequence of this litigation. A copy of the Court’s Order dated May 11, 2022 is attached as Exhibit “L”. 18. Pursuant to the Order, and based on Plaintiff’s service of the Order with notice of entry, the Defendant and the Rivkin Non-Parties have until June 17, 2022 to disclose, among other things, the privileged and confidential information, which – importantly – is also the deadline for Defendant to move for leave to reargue the May 2022 Order. E. Relief Sought in the Appellate Division, Second Department 19. Defendant and non-party Rivkin Radler each filed a Notice of Appeal from this Court’s May 11, 2022 Order. See Exhibit “M” (notices of appeal). 8 of 8 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 20. In addition, on Friday, June 10th, 2022, Defendant (along with the Rivkin non-parties) moved by order to show cause for interim relief seeking a stay of the enforcement of this court’s Order pending appeal pursuant to CPLR §5519(c). The Appellate division signed the order to show cause but struck the TRO language. The return date of the order to show cause is June 21, 2022. A copy of the signed order to show cause is attached as Exhibit “N”. Notably, the return date of the appellate division order to show cause (June 21, 2022) in which Defendant is seeking a stay of the enforcement of this Court’s Order pending appeal is four days after the deadline to comply with this Court’s order, which is June 17, 2022. F. Other Relevant Pending Motions 21. There are four other motions pending that are all sub judice: (1) Plaintiff’s motion to disqualify Defendant’s counsel, Rivkin Radler, the law firm that drafted the Purported Will, Purported Trust and/or Purported Family Trust and represented both the Decedent and the Defendant; (2) Defendant’s motion to consolidate this matter with another case involving Plaintiff and Defendant pending in Supreme Court, Kings County, Index No. 517800/2020; (3) Defendant’s motion to transfer this matter to the Kings County Surrogate’s Court since this matter clearly concerns the affairs of a decedent’s estate; and (4) Defendant’s motion to stay discovery pending 9 of 9 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 resolution of the above-mentioned motions. Counsel for the parties appeared virtually for oral argument before the Honorable Richard Velasquez on November 29, 2021. A helpful chart summarizing the pending motions, which chart was prepared by Plaintiff in connection with Plaintiff’s motion to compel, is annexed hereto as Exhibit “O”. RELEVANT LEGAL STANDARDS 22. Reargument. A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” See CPLR 2221(d)(2). “Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision.” Carrillo v PM Realty Group, 16 A.D.3d 611, 611 (2d Dept. 2005). 23. Stay. CPLR 2201 provides that “except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” It’s well- settled that, pursuant to CPLR 2201, “a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of 10 10 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 proof and potential waste of judicial resources.” Matter of Tenenbaum, 81 AD3d 738,739 (2d Dept. 2011)(internal citation and quotations omitted). See also Rhodes v. Mosher, 115 A.D.2d 351 (4th Dept. 1985)(noting that CPLR § 2201 authorizes a Court to “grant a stay of proceedings in a proper case, upon such terms as may be just.”). 24. “The issuance of a stay pursuant to CPLR 2201 is discretionary in the trial court.” Research Corp v. Singer-General Precision Inc., 36 A.D.2d 987, 988 (3d Dept. 1971). In exercising its discretion under CPLR § 2201, the Court must weigh “the prejudice to the moving party by denying a motion balanced against the prejudice to the non-movant by granting the motion.” Nezry v. Haven Ave Owner LLC, 28 Misc.3d 1226(A) at *4 (Sup. Ct. N.Y. County 2010). A stay is warranted when “there exists some articulable reason, such as a showing of prejudice,” Estate of Salerno v. Estate of Salerno, 154 A.D.2d 430, 430 (2d Dept. 1989), and “when other remedies are inadequate and the equities invoked apparent and strong.” Croker v. New York Trust Co., 206 A.D. 11, 13 (1st Dept. 1923). 25. As an aside, it’s worth mentioning that, in addition to CPLR 2201, pursuant to CPLR § 326(a), this Court is permitted to issue a stay of proceedings where, as here, a party seeks removal under CPLR §325(e), which expressly permits the Supreme Court to remove a case from the 11 11 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 Supreme Court to the Surrogate’s Court where a decedent’s estate is affected or where an action pending in the supreme court affects the administration of a decedent's estate. See CPLR § 325(e). See also Nichols v. Kruger, 493 N.Y.S.2d 605 (2d Dept. 1986) (recognizing the Supreme Court's independent authority to make such a transfer pursuant to § 19(a) of Article VI of the Constitution.). As noted above supra., Defendant previously moved by notice of motion for a stay under both CPLR 2201 and/or 324, albeit for different reasons than those necessitating the immediate stay requested in this present application. This prior motion for a stay – which was fully submitted nearly 7 months ago, is still currently sub judice before Judge Velasquez. 26. Extensions of Time. CPLR 2201 provides as follows: “except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” In considering a motion for an extension of time, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence 12 12 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 of an affidavit of merit.” See Tewari v Tsoutsouras, 75 N.Y.2d 1, 12; see also Matter of Village of Haverstraw v Ray Riv. Co., 137 A.D.3d 800, 801). 27. Applying the legal principles set forth above to the facts of the present case, this Court should grant Defendant’s motion in its entirety. ARGUMENT I. This Court Should Grant Defendant Leave to Reargue and, Upon Reargument, Vacate that Portion of the Court’s Order Denying Defendant’s cross-motion in its entirety and granting, in part, Plaintiff’s motion to compel by Directing Defendant to Respond to Plaintiff’s Improper Disclosure Notices In Their Entirety. 28. As set forth below, this Court should grant Defendant’s request for leave to reargue for at least three reasons: (1) the court erroneously concluded that the attorney-client privilege doesn’t survive the death of a client (which it does); (2) the court erroneously concluded that the attorney work product doctrine doesn’t apply because the documents demanded were not created as a consequence of this litigation (which is irrelevant to a claim based on attorney work-product); and (3) the Court granted Plaintiff’s motion to compel with respect to all three of Plaintiff’s disclosure notices in their entirety even though Plaintiff only discussed certain specific requests in his moving papers, which requests are palpably improper. Each of these three reasons to grant Defendant’s motion to reargue is discussed in turn below. 13 13 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 A. In denying the Defendant’s cross-motion for a protective order, the Court overlooked or misapprehended the law to the extent that it concluded that the attorney-client privilege doesn’t survive the death of a client. 29. Although CPLR §3101(a) provides for full disclosure of all matter material and necessary in the prosecution or defense of an action, this principle is limited by CPLR 3101(b), which makes privileged matter absolutely immune from discovery. Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991); 1415, LLC v. New York Mar. & Gen. Ins. Co., 181 A.D.3d 629, 121 N.Y.S.3d 118 (2d Dep’t 2020). The Court’s conclusion that any attorney-client privilege terminated upon the decedent’s death is wrong. It’s well established that the attorney-client privilege survives the client’s death. Mayorga v. Tate, 302 A.D.2d 11, 752 N.Y.S.2d 353 (2d Dep’t. 2002). “The death of the client puts an irrevocable seal upon all privileged communications to counsel, unless the client, while alive, waived the privilege”. Prince, Richardson on Evidence § 5-210. See also People v. Vespucci, 745 N.Y.S.2d 391 (Nassau Co. Ct. 2002) (surveying five approaches to issue of whether privilege survives, and finding support in New York law for two of the five approaches, both involving survival of the privilege, when privilege belonged to a deceased individual rather than an 14 14 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 “expired corporation”); Mayorga v. Tate, 302 A.D.2d at 11-12 (asserting that “the attorney-client privilege … survives the death of the client for whose benefit the privilege exists” and citing cases) 30. In Swidler & Berlin, 524 U.S. 399, 118 S. Ct. 2081 (1998), the Supreme Court found that “[i]t has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client” where the client is an individual. 524 U.S. at 410. The Court reasoned that “[k]nowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel” because “[c]lients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime.” Id. at 407. 31. As such, because this court overlooked or misapprehended the law by concluding that the decedent’s attorney client privilege terminates upon death, this Court should grant leave to reargue and, upon reargument, strike Plaintiff’s impermissible requests calling for the production of privileged 15 15 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 items or, in the alternative, grant Defendant’s cross-motion for a protective order.2 B. This Court overlooked or misapprehended the law to the extent it concluded that the work product doctrine doesn’t apply because the documents demanded were not created as a consequence of this litigation. 32. The New York attorney work product doctrine provides an absolute protection for materials that are uniquely the product of an attorney's learning and professional skills. CPLR 3101(c); see People v. Kozlowski, 869 N.Y.S.2d 848, 862 (2008). Among other things, New York law distinguishes between the attorney work product doctrine and the trial preparation privilege, which is a separate privilege. Indeed, as one legal practice guide has explained, because the CPLR separates the protection for work product and for materials prepared for litigation or for trial (i.e., the trial preparation privilege), the restriction that work product protection be tied to an anticipated litigation does not exist in the CPLR. And while it’s true that 2 Although not stated directly in the Order, in grating that branch of Plaintiff’s motion seeking to compel responses to all three of Plaintiff’s voluminous disclosure notices in - their entirety, this Court implicitly rejected Defendant’s assertion of attorney client privilege not just between Decedent and her attorneys but also between Defendant and his attorneys. As such, to the extent that this Court rejected Defendant’s attorney-client privilege claim as it pertains to himself, and to the extent that this Court’s order requires the disclosure of potentially privileged documents or communications, Defendant respectfully requests leave to reargue this point and, upon reargument, sustain Defendant’s objections based on privilege or, in the alternative, grant a protective order. 16 16 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 it’s not entirely clear whether an “anticipation of litigation” must exist at the time of the material’s creation for work product protection to apply, case law exists that suggests that an anticipation of litigation is not a necessary requirement. See e.g., Kozlowski, 869 N.Y.S.2d at 861 ("when particular work product is generated for litigation, courts have tended to classify it as trial preparation material"); Gilbert v. Office of the Governor, 96 N.Y.S.3d 724, 726-27 (3d Dep't 2019) (finding that the work product doctrine protected attorney's preliminary drafts of a letter terminating a sublease without discussing any litigation motive); Aetna Cas. & Sur., 692 N.Y.S.2d at 386 (citing meeting minutes not being prepared in anticipation of litigation as a grounds to find no protection under CPLR 3101(d)(2) but not for denying work product protection under CPLR 3101(c)). 33. As such, to the extent that this Court’s Order conflates the work product doctrine (which does not have an “anticipation of litigation” requirement) with the trial preparation privilege (which does have such a requirement), this Court overlooked and misapprehended the law as it relates to the work product doctrine and, therefore, leave to reargue is warranted. 34. In addition, contrary to the apparent finding in the Court’s Order, the work product protection is not limited to the litigation for which the 17 17 of 32 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 06/15/2022 attorney prepared the materials and continues to apply in any later legal proceedings. Kinge v. State, 754 N.Y.S.2d 717, 721 (3d Dep't 2003); Corcoran v. Peat, Marwick, Mitchell & Co., 542 N.Y.S.2d 642, 643 (1st Dep't 1989)). As one court aptly put it, “an attorney's work product is privileged both in the context of the litigation for which it was prepared