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Exhibit I
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06/15/2022
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2
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 Nominated OPPOSITION TO PLAINTIFF'S
Executor of the Purported Last Will & Testament of MOTION TO COMPEL
Mira Hertz, dated November 26, 2008, and as Trustee SUBMITTED ON BEHALF OF
of the Purported Mira Hertz Revocable Trust Agreement, THE RIVKIN NON-PARTIES
dated November 26, 2008, and as Trustee of the
Purported Mira Hertz Family Trust Agreement, dated
November 26, 2008,
Defendant.
X
DAVID S. WILCK, an attorney duly admitted to the practice of law in the State of
New York, under the penalties of perjury, affirms as follows:
1. I am the attorney for the non-party law firm, Rivkin Radler •LTA); in addition to three
non-party attorneys with the law firm, Scott Eisenmesser, Yaron Kornblum and Walter Gumersell
(collectively, the "Rivkin Non-Parties7). I am also a member of the law firm of Rivkin Radler
LLP. This Affirmation is submitted in opposition to the relief sought in Plaintiff's motion to
compel as it relates to the Rivkin Non-Parties.
INTRODUCTION
2. According to the Subpoenas Duces Tecum, this action is for a trust contest where
Plaintiff seeks to invalidate two trust instruments that were created by his mother, Mira Hertz, in
2008. The Subpoenas Duces Tecum seek documents from the Rivkin Non-Parties concerning the
drafting and execution of the trust instruments and documents regarding unrelated matters. The
Rivkin Non-Parties have objected to the requests in the Subpoenas Duces Tecum as being palpably
improper as they are overly broad, unduly burdensome and vexatious. The requests seek
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information that is confidential, privileged, work product and/or utterly irrelevant, as well as
information that is already in Plaintiff's possession from the discovery responses of the party
Defendant.
3. However, an analysis of these objections is not at issue here. Rather, Plaintiff wants
two advanced rulings from the Court. First, Plaintiff wants a ruling that he is not required to pay
the attorneys' fees of the Rivkin Non-Parties in connection with responding to the four Subpoenas
under CPLR 3122(d). Second, Plaintiff wants a blanket ruling that the Rivkin Non-Parties are not
permitted to object to use of the term "all" in any of the document requests. Both requests are
completely meritless.
4. CPLR 3122(d) mandates that the reasonable production expenses of a non-party
witness be defrayed by the party seeking discovery. Courts have repeatedly ruled that such
production expenses include the non-party's attorneys' fees in connection with responding to the
subpoena. The rationale behind the ruling is clear. Non-parties should not have to subsidize the
costs of litigation in which they are not a party and parties should be deterred from engaging in
fishing expeditions. Plaintiff should, therefore, be directed to pay the Rivkin Non-Parties'
attorneys' fees in connection with responding to the four Subpoenas Duces Tecum.
5. Moreover, the Rivkin Non-Parties' objection to the term "all" in the document
requests is clearly proper. A subpoena duces tecum must describe each item and category sought
with reasonable particularity under CPLR 3120. This requirement is designed to prevent fishing
expeditions and rummaging of records, both of which are present here. Plaintiff seeks to rummage
through Rivkin Radler LLP's confidential business records by requesting "all" documents
concerning the law firm's polices regarding opening new matters and running conflicts of interest.
These requests have absolutely no relevance to Plaintiff's claims against the Defendant and are
simply designed to harass the Rivkin Non-Parties. Plaintiff also seeks to conduct a fishing
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expedition by demanding "all" communications and documents between the Rivkin Non-Parties
and their client which are privileged and/or work product. Plaintiff's request for a ruling
prohibiting the Rivkin Non-Parties from objecting to the term "all" is frivolous on its face and
should be denied.
PROCEDURAL BACKGROUND
6. On February 24, 2022, the Rivkin Non-Parties were served with four Subpoenas
Duces Tecum. On March 24, 2022, the Rivkin Non-Parties served Responses and Objections to
those Subpoenas. In each Response, the Rivkin Non-Parties objected to the Plaintiff's refusal to
defray the costs of responding to the Subpoenas, including attorneys' fees, in accordance with
CPLR 3122(d). See Exh. "F" annexed to the April 22, 2022 Affirmation of Irma K. Nimetz, Esq.
in Support of Motion to Compel and to Extend Time to File Note of Issue (the "Nimetz
Affirmation') at ¶¶ I of each of the four Responses and Objections to Plaintiff's Subpoena Duces
Tecum.
7. While the Rivkin Non-Parties asserted numerous objections to the requests in the
Subpoenas Duces Tecum, Plaintiff states in his moving papers that "[a]n analysis of each of the
objections in the four subpoenas is beyond the confines of this motion..." See Plaintiff's
Memorandum of Law in Support of Motion to Compel and to Extend Time to File Note of Issue
("Plaintiff's Memorandum of Law") at p. 10. Instead, Plaintiff requests two advance rulings from
the Court as explained above.
THE RIVKIN NON-PARTIES ARE ENTITLED
TO ATTORNEYS' FEES UNDER CPLR 3122(d)
8. Pursuant to CPLR 3122(d), "[t]he reasonable production expenses of a non-party
witness shall be defrayed by the party seeking discovery." CPLR 3122(d) (emphasis added). Thus,
CPLR 3122(d) "require[s] the requesting party to defray the `reasonable production expenses' of a
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nonparty." Tener v. Cremer, 89 A.D.3d 75, 82, 931 N.Y.S.2d 552, 557 (1st Dep't 2011) (emphasis
in original). It is not optional.
9. Contrary to Plaintiff's baseless assertion, production expenses do not exclude
attorneys' fees simply because they are not specifically referenced in the statute. In Finkelman v.
Klaus, 2007 N.Y. Misc. LEXIS 8076 (Sup Ct. Nassau Cnty. Nov. 28, 2007), the Court directed the
plaintiff to pay the non-party witness' attorneys' fees in responding to a subpoena. The Court
pointed out that while it is noted in the CPLR 3122 Practice Commentaries that reference to
attorneys' fees is not made in the statute, "[t]he court would be empowered to direct such a
payment, particularly where any substantial right of the non-party witness is involved and
representation by an attorney is needed." Id. at *16 (quoting Connors, Practice Commentaries,
MeKinney's Cons. Laws of N.Y., Book 7B CPLR 3122:4, p. 378).
10. The Court in Finkelman looked to the federal court for guidance and explained the
rationale behind its decision as follows:
"The sound rationale behind the federal rule [that] non-parties should
not have to subsidize the costs of litigation in which they are not a
party and parties should be deterred from engaging in fishing
expeditions for marginally relevant documents supports the extension
of the principle to CPLR 3122(a)."
Finkelman, 2007 N.Y. Misc. LEXIS 8076 at *15-16 (quoting Haig, 3 N.Y. Prac., Com. Litig. in
New York State Courts § 22.7).
11. This Court has similarly held that "there is authority for awarding full
compensation, including attorneys'fees, to a non-party for costs incurred in complying with a
subpoena." Parklex Assocs. v. Parklex Assocs., Inc., 2011 N.Y. Misc. LEXIS 5149, at *16 n.8
(Sup. Ct. Kings Cnty. Oct. 31, 2011) (Demarest, J.) (emphasis added). Other courts have also
directed plaintiffs to pay the attorneys' fees of a non-party witness in connection with responding
to a subpoena pursuant to CPLR 3122(d). See Mayer v. Marron, 2018 N.Y. Misc. LEXIS 490, at
4
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*27-28 (Sup. Ct. N.Y. Cnty. Feb. 8, 2018) (holding that while CPLR 3122(d) only states that a
non-party is entitled to "reasonable production expenses", such expenses include the attorneys'
fees incurred in complying with a subpoena); Peters v. Peters, 2016 N.Y. Mis. LEXIS 2453 (Sup.
Ct. N.Y. Cnty. July 5, 2016) (holding that non-party was entitled to recover expenses and
attorney's fees incurred for gathering and reviewing documents for production pursuant to CPLR
3122(d)).
12. Thus, Plaintiff's request for a ruling that he does not have to pay the Rivkin Non-
Parties' attorneys' fees in responding to the Subpoenas should be denied, and Plaintiff should be
directed to pay the Rivkin Non-Parties the costs and attorneys' fees in searching, collecting and
drafting responses to the four Subpoenas Duces Tecum, This includes but is not limited to the time
it will take to compare the documents requested in the Subpoenas Duces Tecum with the
documents that have already been produced to Plaintiff by the party Defendants in this action to
determine if Plaintiff is seeking the production of documents that are already in his possession.
THE RIVKIN NON-PARTIES' OBJECTION TO PLAINTIFF'S REPEATED USE
OF THE WORD "ALL" IN THE DOCUMENTS REQUESTS IS ENTIRELY
PROPER AS MADE EVIDENT BY THE CASES RELIED UPON BY PLAINTIFF
13. Equally meritless is Plaintiff's contention that the Rivkin Non-Parties cannot
properly object to use of the word "all" in the document requests of the four Subpoenas Duces
Tecum. Not only are the cases relied upon by Plaintiff plainly distinguishable from this case, they
confirm that Plaintiff's reference to "all" in the document requests is patently improper.
14. In Palmeri Kilcourse, 91 A.D.2d 657, 457 N.Y.S.2d 104 (2d Dep't 1982), cited
by Plaintiff, the Appellate Division, Second Department held that CPLR 3120 "seeks to eliminate
`fishing expeditions' by specifying reasonable particularity in the notice. It "is designed to protect
against unreasonable rummaging through books and records..." Id. at 957, 457 N.Y.S.2d at 105
(quoting Weinstein-Korn-Miller (N.Y. Civ. Prac., vol. 3A, par. 3120.17). The Court held
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"[a]lthough use of the phrase `any and all' has been disapproved on many occasions ... under the
circumstances of this case the requirements of CPLR 3120 have been met." Id. at 957, 457
N.Y.S.2d at 105 (internal citations omitted). The Court, therefore, concluded that use of the term
"any and all" in the document requests was not a fishing expedition or an unreasonably rummaging
through defendant's records.
15. Similarly, in Stevens v. Metro. Suburban Bus Auth., 117 A.D.2d 733, 498 N.Y.S.2d
459 (2d Dep't 1986), cited by Plaintiff, the Appellate Division, Second Department held that use of
the word "all" indicates a lack of the requisite specificity under CPLR 3120. The Court held that
the term "all" did not in and of itself render the requests improper because the requests were
"sufficiently specific to apprise the defendant of the categories of documents which it must
produce." Id. at 734,498 N.Y.S.2d at 461. The Court emphasized that the subject requests did
"not constitute a `fishing expedition" into the defendant's records." Id.
16. Unlike the foregoing cases, an improper fishing expedition and an unreasonable
document rummaging are precisely at issue here. Plaintiff seeks to rummage through Rivkin
Radler LLP's confidential business records by requesting "all" documents reflecting the law firm's
policies regarding opening new matters and conflicts of interest and "all" documents concerning
the law firm's new business matter forms and/or new file forms. See Exh. "E" annexed to Nimetz
Affitmation at Requests No, 1 and No. 2 of the collective Subpoenas Duces Tecum. None of these
documents are relevant to Plaintiff's claims against the Defendant and the requests are simply
designed to harass the Rivkin Non-Parties.
The other cases relied on by Plaintiff are also readily distinguishable from the instant matter and lend no support
to their arguments. See Agric. & Indus. Corp. v. Chemical Bank, 94 A.D.2d 671, 672, 462 N.Y.S.2d 667; 668
(1st Dep't 1983) (holding that the demand for "all" corporate records lacked requisite particularity as the request
"includes a wide area of nonidentifiable documents ..."); RKB Enters., Inc. v. Ernst & Young, 195 A.D.2d 857,
600 N.Y.S.2d 793 (3d Dep't 1993) (holding that while use of the term "all" may indeed be an indication of lack
of specificity, the use of the word "all" in the subject request was narrowly defined and therefore, not so palpably
improper as to warrant judicial interference).
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17. Plaintiff's overbroad requests also amount to nothing more than an impermissible
fishing expedition as they seek the production of "all" communications and documents between the
Rivkin Non-Parties and their client which are privileged and/or work product. See, e.g., Exh. "F"
to Nimetz Affirmation, Non-Party, Rivkin Radler LLP's Responses and Objections to Plaintiff's
Subpoena Duces Tecum at ¶¶ 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
18. Moreover, use of the term "all" in the requests is improper as Plaintiff already has
numerous documents in his possession which were produced on behalf of Defendant as noted
above. See Matter of Sousa, 80 A.D.3d 446, 915 N.Y.S.2d 238 (1st Dep't 2011) (holding that the
request to produce "all" documents was overbroad and burdensome in light of the documents
already available to the petitioner).
19. Plaintiff's request for a blanket ruling prohibiting the Rivkin Non-Parties from
objecting to use of the word "all" in the document requests is palpably absurd and should be
rejected by the Court.
WHEREFORE, it is respectfully requested•that this Court deny Plaintiff's
requested relief in the motion to compel as it relates to the Rivkin Non-Parties, together with such
other and further relief which this Court deems just and proper.
Dated: Uniondale, New York
May 4, 2022
/s/ David-S. Wit-ck
David S. Wilek
5798441.v4
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SUPREME COURT STATE OF NEW YORK
COUNTY OF KINGS
JOSEPH HERTZ,
Plaintiff(s),
-against-
SAMUEL HERTZ, Individually, and as the Nominated Executor of the Purported Last Will & Testament of
Mira Hertz, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Revocable Trust
Agreement, e al.,
Defendant(s).
AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION TO
COMPEL SUBMITTED ON BEHALF OF THE RIVKIN NON-PARTIES
RIVKIN RADLER LLP
Attorneys for
926 RXR PLAZA
UNIONDALE, NEW YORK 11556-0926
(5imistw
FILE#
To:
Attorney(s) for
Service of acopy of the within is hereby admitted.
Dated:
Attorney(s) for
PLEASE TAKE NOTICE
❑ that the within is a
(certified) true copy of a
Check Applicable Box
NOTICE OF 20
entered in the office of the clerk of the within named Court on
ENTRY
true copy will be presented for settlement to the Hon.
that an Order of which the within is a
NOTICE OF one of the judges of the within named Court,
SETTLEMENT at
on 20 ,at
Dated:
RIVKIN RADLER LLP
Attorneys for
5746393,v1 926 RXR PLAZA
UNIONDALE, NEW YORK 11556-0926
To:
FILE#
Attorney(s) for
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FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 Exhibit I FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVEDINDEX NYSCEF: NO. 06/15/2022 526061/2O9 (FILED: KINGS COUNTY CLERK 05/04/2022 04:13 PM) NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 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 Nominated OPPOSITION TO PLAINTIFF'S Executor of the Purported Last Will & Testament of MOTION TO COMPEL Mira Hertz, dated November 26, 2008, and as Trustee SUBMITTED ON BEHALF OF of the Purported Mira Hertz Revocable Trust Agreement, THE RIVKIN NON-PARTIES dated November 26, 2008, and as Trustee of the Purported Mira Hertz Family Trust Agreement, dated November 26, 2008, Defendant. X DAVID S. WILCK, an attorney duly admitted to the practice of law in the State of New York, under the penalties of perjury, affirms as follows: 1. I am the attorney for the non-party law firm, Rivkin Radler •LTA); in addition to three non-party attorneys with the law firm, Scott Eisenmesser, Yaron Kornblum and Walter Gumersell (collectively, the "Rivkin Non-Parties7). I am also a member of the law firm of Rivkin Radler LLP. This Affirmation is submitted in opposition to the relief sought in Plaintiff's motion to compel as it relates to the Rivkin Non-Parties. INTRODUCTION 2. According to the Subpoenas Duces Tecum, this action is for a trust contest where Plaintiff seeks to invalidate two trust instruments that were created by his mother, Mira Hertz, in 2008. The Subpoenas Duces Tecum seek documents from the Rivkin Non-Parties concerning the drafting and execution of the trust instruments and documents regarding unrelated matters. The Rivkin Non-Parties have objected to the requests in the Subpoenas Duces Tecum as being palpably improper as they are overly broad, unduly burdensome and vexatious. The requests seek 1 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVEDINDEX NYSCEF: NO. 06/15/2022 526061/2019 [FILED: KINGS COUNTY CLERK 05/04/2022 04:13 PM) NYSCEF )0C. NO. 165 RECEIVED NYSCEF: 05/04/202 information that is confidential, privileged, work product and/or utterly irrelevant, as well as information that is already in Plaintiff's possession from the discovery responses of the party Defendant. 3. However, an analysis of these objections is not at issue here. Rather, Plaintiff wants two advanced rulings from the Court. First, Plaintiff wants a ruling that he is not required to pay the attorneys' fees of the Rivkin Non-Parties in connection with responding to the four Subpoenas under CPLR 3122(d). Second, Plaintiff wants a blanket ruling that the Rivkin Non-Parties are not permitted to object to use of the term "all" in any of the document requests. Both requests are completely meritless. 4. CPLR 3122(d) mandates that the reasonable production expenses of a non-party witness be defrayed by the party seeking discovery. Courts have repeatedly ruled that such production expenses include the non-party's attorneys' fees in connection with responding to the subpoena. The rationale behind the ruling is clear. Non-parties should not have to subsidize the costs of litigation in which they are not a party and parties should be deterred from engaging in fishing expeditions. Plaintiff should, therefore, be directed to pay the Rivkin Non-Parties' attorneys' fees in connection with responding to the four Subpoenas Duces Tecum. 5. Moreover, the Rivkin Non-Parties' objection to the term "all" in the document requests is clearly proper. A subpoena duces tecum must describe each item and category sought with reasonable particularity under CPLR 3120. This requirement is designed to prevent fishing expeditions and rummaging of records, both of which are present here. Plaintiff seeks to rummage through Rivkin Radler LLP's confidential business records by requesting "all" documents concerning the law firm's polices regarding opening new matters and running conflicts of interest. These requests have absolutely no relevance to Plaintiff's claims against the Defendant and are simply designed to harass the Rivkin Non-Parties. Plaintiff also seeks to conduct a fishing 2 2 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 [FILED: KINGS COUNTY CLERK 05/04/2022 04 : 13 PI4 INDEX NO. 526061/20 9 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 expedition by demanding "all" communications and documents between the Rivkin Non-Parties and their client which are privileged and/or work product. Plaintiff's request for a ruling prohibiting the Rivkin Non-Parties from objecting to the term "all" is frivolous on its face and should be denied. PROCEDURAL BACKGROUND 6. On February 24, 2022, the Rivkin Non-Parties were served with four Subpoenas Duces Tecum. On March 24, 2022, the Rivkin Non-Parties served Responses and Objections to those Subpoenas. In each Response, the Rivkin Non-Parties objected to the Plaintiff's refusal to defray the costs of responding to the Subpoenas, including attorneys' fees, in accordance with CPLR 3122(d). See Exh. "F" annexed to the April 22, 2022 Affirmation of Irma K. Nimetz, Esq. in Support of Motion to Compel and to Extend Time to File Note of Issue (the "Nimetz Affirmation') at ¶¶ I of each of the four Responses and Objections to Plaintiff's Subpoena Duces Tecum. 7. While the Rivkin Non-Parties asserted numerous objections to the requests in the Subpoenas Duces Tecum, Plaintiff states in his moving papers that "[a]n analysis of each of the objections in the four subpoenas is beyond the confines of this motion..." See Plaintiff's Memorandum of Law in Support of Motion to Compel and to Extend Time to File Note of Issue ("Plaintiff's Memorandum of Law") at p. 10. Instead, Plaintiff requests two advance rulings from the Court as explained above. THE RIVKIN NON-PARTIES ARE ENTITLED TO ATTORNEYS' FEES UNDER CPLR 3122(d) 8. Pursuant to CPLR 3122(d), "[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery." CPLR 3122(d) (emphasis added). Thus, CPLR 3122(d) "require[s] the requesting party to defray the `reasonable production expenses' of a 3 3 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 (FILED: KINGS COUNTY CLERK 05/04/2022 04:13 PM) INDEX NO. 526061/20 9 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 nonparty." Tener v. Cremer, 89 A.D.3d 75, 82, 931 N.Y.S.2d 552, 557 (1st Dep't 2011) (emphasis in original). It is not optional. 9. Contrary to Plaintiff's baseless assertion, production expenses do not exclude attorneys' fees simply because they are not specifically referenced in the statute. In Finkelman v. Klaus, 2007 N.Y. Misc. LEXIS 8076 (Sup Ct. Nassau Cnty. Nov. 28, 2007), the Court directed the plaintiff to pay the non-party witness' attorneys' fees in responding to a subpoena. The Court pointed out that while it is noted in the CPLR 3122 Practice Commentaries that reference to attorneys' fees is not made in the statute, "[t]he court would be empowered to direct such a payment, particularly where any substantial right of the non-party witness is involved and representation by an attorney is needed." Id. at *16 (quoting Connors, Practice Commentaries, MeKinney's Cons. Laws of N.Y., Book 7B CPLR 3122:4, p. 378). 10. The Court in Finkelman looked to the federal court for guidance and explained the rationale behind its decision as follows: "The sound rationale behind the federal rule [that] non-parties should not have to subsidize the costs of litigation in which they are not a party and parties should be deterred from engaging in fishing expeditions for marginally relevant documents supports the extension of the principle to CPLR 3122(a)." Finkelman, 2007 N.Y. Misc. LEXIS 8076 at *15-16 (quoting Haig, 3 N.Y. Prac., Com. Litig. in New York State Courts § 22.7). 11. This Court has similarly held that "there is authority for awarding full compensation, including attorneys'fees, to a non-party for costs incurred in complying with a subpoena." Parklex Assocs. v. Parklex Assocs., Inc., 2011 N.Y. Misc. LEXIS 5149, at *16 n.8 (Sup. Ct. Kings Cnty. Oct. 31, 2011) (Demarest, J.) (emphasis added). Other courts have also directed plaintiffs to pay the attorneys' fees of a non-party witness in connection with responding to a subpoena pursuant to CPLR 3122(d). See Mayer v. Marron, 2018 N.Y. Misc. LEXIS 490, at 4 4 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 (FILED: KINGS COUNTY CLERK 05/04/2022 04:13 P . INDEX NO. 526061/20 9 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 *27-28 (Sup. Ct. N.Y. Cnty. Feb. 8, 2018) (holding that while CPLR 3122(d) only states that a non-party is entitled to "reasonable production expenses", such expenses include the attorneys' fees incurred in complying with a subpoena); Peters v. Peters, 2016 N.Y. Mis. LEXIS 2453 (Sup. Ct. N.Y. Cnty. July 5, 2016) (holding that non-party was entitled to recover expenses and attorney's fees incurred for gathering and reviewing documents for production pursuant to CPLR 3122(d)). 12. Thus, Plaintiff's request for a ruling that he does not have to pay the Rivkin Non- Parties' attorneys' fees in responding to the Subpoenas should be denied, and Plaintiff should be directed to pay the Rivkin Non-Parties the costs and attorneys' fees in searching, collecting and drafting responses to the four Subpoenas Duces Tecum, This includes but is not limited to the time it will take to compare the documents requested in the Subpoenas Duces Tecum with the documents that have already been produced to Plaintiff by the party Defendants in this action to determine if Plaintiff is seeking the production of documents that are already in his possession. THE RIVKIN NON-PARTIES' OBJECTION TO PLAINTIFF'S REPEATED USE OF THE WORD "ALL" IN THE DOCUMENTS REQUESTS IS ENTIRELY PROPER AS MADE EVIDENT BY THE CASES RELIED UPON BY PLAINTIFF 13. Equally meritless is Plaintiff's contention that the Rivkin Non-Parties cannot properly object to use of the word "all" in the document requests of the four Subpoenas Duces Tecum. Not only are the cases relied upon by Plaintiff plainly distinguishable from this case, they confirm that Plaintiff's reference to "all" in the document requests is patently improper. 14. In Palmeri Kilcourse, 91 A.D.2d 657, 457 N.Y.S.2d 104 (2d Dep't 1982), cited by Plaintiff, the Appellate Division, Second Department held that CPLR 3120 "seeks to eliminate `fishing expeditions' by specifying reasonable particularity in the notice. It "is designed to protect against unreasonable rummaging through books and records..." Id. at 957, 457 N.Y.S.2d at 105 (quoting Weinstein-Korn-Miller (N.Y. Civ. Prac., vol. 3A, par. 3120.17). The Court held 5 5 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 WILED: KINGS COUNTY CLERK 05/04/2022 4 04:13 P4 INDEX NO. 526061/2079 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 "[a]lthough use of the phrase `any and all' has been disapproved on many occasions ... under the circumstances of this case the requirements of CPLR 3120 have been met." Id. at 957, 457 N.Y.S.2d at 105 (internal citations omitted). The Court, therefore, concluded that use of the term "any and all" in the document requests was not a fishing expedition or an unreasonably rummaging through defendant's records. 15. Similarly, in Stevens v. Metro. Suburban Bus Auth., 117 A.D.2d 733, 498 N.Y.S.2d 459 (2d Dep't 1986), cited by Plaintiff, the Appellate Division, Second Department held that use of the word "all" indicates a lack of the requisite specificity under CPLR 3120. The Court held that the term "all" did not in and of itself render the requests improper because the requests were "sufficiently specific to apprise the defendant of the categories of documents which it must produce." Id. at 734,498 N.Y.S.2d at 461. The Court emphasized that the subject requests did "not constitute a `fishing expedition" into the defendant's records." Id. 16. Unlike the foregoing cases, an improper fishing expedition and an unreasonable document rummaging are precisely at issue here. Plaintiff seeks to rummage through Rivkin Radler LLP's confidential business records by requesting "all" documents reflecting the law firm's policies regarding opening new matters and conflicts of interest and "all" documents concerning the law firm's new business matter forms and/or new file forms. See Exh. "E" annexed to Nimetz Affitmation at Requests No, 1 and No. 2 of the collective Subpoenas Duces Tecum. None of these documents are relevant to Plaintiff's claims against the Defendant and the requests are simply designed to harass the Rivkin Non-Parties. The other cases relied on by Plaintiff are also readily distinguishable from the instant matter and lend no support to their arguments. See Agric. & Indus. Corp. v. Chemical Bank, 94 A.D.2d 671, 672, 462 N.Y.S.2d 667; 668 (1st Dep't 1983) (holding that the demand for "all" corporate records lacked requisite particularity as the request "includes a wide area of nonidentifiable documents ..."); RKB Enters., Inc. v. Ernst & Young, 195 A.D.2d 857, 600 N.Y.S.2d 793 (3d Dep't 1993) (holding that while use of the term "all" may indeed be an indication of lack of specificity, the use of the word "all" in the subject request was narrowly defined and therefore, not so palpably improper as to warrant judicial interference). 6 6 of 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 (FILED: KINGS COUNTY CLERK 05/04/2022 04:13 PNA INDEX NO. 526061/20 9 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/20 2 17. Plaintiff's overbroad requests also amount to nothing more than an impermissible fishing expedition as they seek the production of "all" communications and documents between the Rivkin Non-Parties and their client which are privileged and/or work product. See, e.g., Exh. "F" to Nimetz Affirmation, Non-Party, Rivkin Radler LLP's Responses and Objections to Plaintiff's Subpoena Duces Tecum at ¶¶ 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. 18. Moreover, use of the term "all" in the requests is improper as Plaintiff already has numerous documents in his possession which were produced on behalf of Defendant as noted above. See Matter of Sousa, 80 A.D.3d 446, 915 N.Y.S.2d 238 (1st Dep't 2011) (holding that the request to produce "all" documents was overbroad and burdensome in light of the documents already available to the petitioner). 19. Plaintiff's request for a blanket ruling prohibiting the Rivkin Non-Parties from objecting to use of the word "all" in the document requests is palpably absurd and should be rejected by the Court. WHEREFORE, it is respectfully requested•that this Court deny Plaintiff's requested relief in the motion to compel as it relates to the Rivkin Non-Parties, together with such other and further relief which this Court deems just and proper. Dated: Uniondale, New York May 4, 2022 /s/ David-S. Wit-ck David S. Wilek 5798441.v4 7 07 8 FILED: KINGS COUNTY CLERK 06/15/2022 04:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 06/15/2022 (FILEDita€44MNqMpUNTY CLERKPAV 0 4 / 2 022 0 4 : 13 PM) INDEX NO. 526061/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 05/04/2022 SUPREME COURT STATE OF NEW YORK COUNTY OF KINGS JOSEPH HERTZ, Plaintiff(s), -against- SAMUEL HERTZ, Individually, and as the Nominated Executor of the Purported Last Will & Testament of Mira Hertz, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Revocable Trust Agreement, e al., Defendant(s). AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL SUBMITTED ON BEHALF OF THE RIVKIN NON-PARTIES RIVKIN RADLER LLP Attorneys for 926 RXR PLAZA UNIONDALE, NEW YORK 11556-0926 (5imistw FILE# To: Attorney(s) for Service of acopy of the within is hereby admitted. Dated: Attorney(s) for PLEASE TAKE NOTICE ❑ that the within is a (certified) true copy of a Check Applicable Box NOTICE OF 20 entered in the office of the clerk of the within named Court on ENTRY true copy will be presented for settlement to the Hon. that an Order of which the within is a NOTICE OF one of the judges of the within named Court, SETTLEMENT at on 20 ,at Dated: RIVKIN RADLER LLP Attorneys for 5746393,v1 926 RXR PLAZA UNIONDALE, NEW YORK 11556-0926 To: FILE# Attorney(s) for 8 of 8