Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021
Plaintiff,
AFFIDAVIT IN
-vs- SUPPORT OF
ORDER TO SHOW CAUSE
MELINDA BURDICK BOWE,
Defendant.
STATE OF NEW YORK )
COUNTY OF ONONDAGA )ss.:
PAUL G. FERRARA, being duly sworn, deposes and says:
1. Your deponent is an attorney duly licensed and admitted to practice law in the State
ofNew York and a member of the Plaintiff law firm of Costello, Cooney & Fearon, PLLC (CC&F).
8 As such, I am fully familiar with the facts and proceedings heretofore had in this action.
2. I submit this Affidavit in support of CC&F's Order to Show Cause seeking: (a) a
protective order permitting the filing of certain confidential and proprietary documents under seal;
(b) a stay of all deadlines pursuant to Section 3101 of the Civil Practice Law and Rules.
3. Prior to addressing the issues raised in the previous paragraph, it is necessary to
discuss the facts and circumstances surrounding this application.
I. PROCEDURAL HISTORY
4. CC&F commenced this action by filing a Summons and Complaint with the Clerk
of the County of Onondaga on or about April 23, 2021, a copy of which is attached hereto and
made a part hereof as Exhibit "A".
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5. Therein, CC&F alleged Defendant, as a former member of CC&F, breached
CC&F's Operating Agreement by receiving and retaining monies to which she was not entitled,
including distributions for the period after her withdrawal as a member, and her refusal to restore
a negative balance on her capital account. (See Exhibit "A").
6. Issue was joined by the filing of Defendant's Answer on or about June 18, 2021, a
copy of which is attached hereto and made a part hereof as Exhibit "B".
7. Therein, Defendant asserted numerous affirmative defenses and six (6)
counterclaims, including several related to an Of Counsel Agreement into which she entered
following her withdrawal as a member of CC&F. (See Exhibit "B").
8. That same day, Defendant served CC&F with her Notice to Produce and combined
Discovery Demands by regular mail, copies of which are attached hereto and made a part hereof
"C"
as Exhibits and "D", respectively.
9. On or about June 23, 2021, CC&F wrote to Defendant's counsel inquiring if
Defendant would enter into a Confidentiality Stipulation and Order to allow for the marking of
8
"Confidential,"
certain confidential and proprietary documents as limiting the dissemination and
filing of such documents and allowing for such documents once marked, to be filed with this
seal."
Court "under A copy of said letter, with enclosure, is attached hereto and made a part hereof
as Exhibit "E".
10. Defendant's counsel did not respond to our June 23, 2021 letter. Defendant has not
agreed to enter into a Confidentiality Stipulation and Order, despite CC&F's good-faith efforts.
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II. ARGUMENT
11. CC&F anticipates filing a motion to dismiss several of Defendant's counterclaims
upon the resolution of this application.
12. The counterclaims raised by Defendant call into question, and require
necessarily
attachment to the motion papers, of proprietary business records, CC&F's
including Operating
Agreement and the negotiated Of Counsel Agreement with Defendant. (See Exhibit "B").
13. CC&F's Operating Agreement necessarily addresses not only CC&F's general
operating principles, but also sets forth in detail the compensation of CC&F's members.
14. Additionally, within Defendant's Notice to Produce, she seeks production of a
plethora of confidential and proprietary documents, including but not limited to: (a) CC&F's
Operating Agreements since the beginning of time; (b) documentation relating to 2020
compensation for all non-party members of CC&F; (c) year-end statistics, including billable hours
and fees received for all non-party members of CC&F; (d) CC&F's application for a "payroll
program"
protection loan in 2020; (e) all documentation related to CC&F's PPP loan application;
(f)CC&F's tax returns from 2017 to present; and (g) allcommunications, documents and materials
exchanged between CC&F and itsaccountants related any services provided by those accountants.
(See Exhibit "C").
15. The Notice to Produce requests all such documents be disclosed within twenty (20)
days, or by July 13, 2021 (allowing five [5] additional days, per the Civil Practice Law and Rules).
(See id.).
16. It is respectfully submitted that any public interest in the disclosure of CC&F's
confidential documents, which are primarily made up of proprietary business records and its
members private compensation information, is outweighed by the harm to CC&F's competitive
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standing and disclosure of its internal, proprietary information, as well as the confidential, financial
information of itsmembers.
17. As such, the relevant considerations decisively favor leave to file any financial and
business documents in this action under but not limited to the above-
proprietary seal, including
referenced Operating Agreement and Of Counsel Agreement in conjunction with CC&F's
anticipated motion to dismiss.
18. Furthermore, given the sensitivity of the documents contemplated, CC&F
respectfully requests an order staying all deadlines in this action pending resolution of this motion,
to allow for the eventual filing of the aforementioned governing Agreements under seal in support
of CC&F's motion to dismiss counterclaims, and to allow for resolution of these issues prior to
CC&F's disclosure of sensitive financial and other proprietary information to Defendant without
such Protective Order in place.
19. Neither Plaintiff nor any other party has made any prior application for similar relief
in this matter.
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WHEREFORE, Plaintiff, Costello, Cooney & Fearon, PLLC respectfully requests an
Order: (a) granting this motion in its entirety; (b) issuing a protective order requiring all parties,
and non-parties, filedocuments which contain confidential and proprietary information under seal;
(c) staying the deadline for CC&F to reply to Defendant's counterclaims, or otherwise move to
dismiss such counterclaims, until ten (10) days following resolution of the instant application by
service of a final Order, with Notice of Entry; (d) staying the deadline for CC&F to respond to
Defendant's Notice to Produce until twenty (20) days following resolution of this motion by
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service of a final Order, with Notice of Entry; and (e) such other and further relief as this Court
deems just and proper.
DATED: June 28, 2021
PAUL G FERRARA
Subscribed and sworn to before me
this 28th day of June, 2021.
Notary Public
o LAURIE J. ALESCI
Public of NewYork
in the State
Notary
in Oswego Co. No.01AL4873119
n alifiad
E2iission Expires October
6, 20._8
y
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CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
The foregoing Affidavit was prepared on a computer.
The .total number of words in the Affidavit, inclusive of point headings and footnotes, and
exclusive of the caption, the table of contents, table of citations, signature block or certificate of
compliance, etc. is 974, which complies with the word count limit.
Dated: June 28, 2021
COSTELLO, COON & FEARON, PLLC
PAUL C. FERRARA
Attorneys for Plaintiff,
Costello, Cooney & Fearon, PLLC
Office and Post Office Address
211 West Jefferson Street
Syracuse, NY 13202
Telephone: (315) 422-1152
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Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021 Plaintiff, AFFIDAVIT IN -vs- SUPPORT OF ORDER TO SHOW CAUSE MELINDA BURDICK BOWE, Defendant. STATE OF NEW YORK ) COUNTY OF ONONDAGA )ss.: PAUL G. FERRARA, being duly sworn, deposes and says: 1. Your deponent is an attorney duly licensed and admitted to practice law in the State ofNew York and a member of the Plaintiff law firm of Costello, Cooney & Fearon, PLLC (CC&F). 8 As such, I am fully familiar with the facts and proceedings heretofore had in this action. 2. I submit this Affidavit in support of CC&F's Order to Show Cause seeking: (a) a protective order permitting the filing of certain confidential and proprietary documents under seal; (b) a stay of all deadlines pursuant to Section 3101 of the Civil Practice Law and Rules. 3. Prior to addressing the issues raised in the previous paragraph, it is necessary to discuss the facts and circumstances surrounding this application. I. PROCEDURAL HISTORY 4. CC&F commenced this action by filing a Summons and Complaint with the Clerk of the County of Onondaga on or about April 23, 2021, a copy of which is attached hereto and made a part hereof as Exhibit "A". 1 of 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 5. Therein, CC&F alleged Defendant, as a former member of CC&F, breached CC&F's Operating Agreement by receiving and retaining monies to which she was not entitled, including distributions for the period after her withdrawal as a member, and her refusal to restore a negative balance on her capital account. (See Exhibit "A"). 6. Issue was joined by the filing of Defendant's Answer on or about June 18, 2021, a copy of which is attached hereto and made a part hereof as Exhibit "B". 7. Therein, Defendant asserted numerous affirmative defenses and six (6) counterclaims, including several related to an Of Counsel Agreement into which she entered following her withdrawal as a member of CC&F. (See Exhibit "B"). 8. That same day, Defendant served CC&F with her Notice to Produce and combined Discovery Demands by regular mail, copies of which are attached hereto and made a part hereof "C" as Exhibits and "D", respectively. 9. On or about June 23, 2021, CC&F wrote to Defendant's counsel inquiring if Defendant would enter into a Confidentiality Stipulation and Order to allow for the marking of 8 "Confidential," certain confidential and proprietary documents as limiting the dissemination and filing of such documents and allowing for such documents once marked, to be filed with this seal." Court "under A copy of said letter, with enclosure, is attached hereto and made a part hereof as Exhibit "E". 10. Defendant's counsel did not respond to our June 23, 2021 letter. Defendant has not agreed to enter into a Confidentiality Stipulation and Order, despite CC&F's good-faith efforts. 2 2 of 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 II. ARGUMENT 11. CC&F anticipates filing a motion to dismiss several of Defendant's counterclaims upon the resolution of this application. 12. The counterclaims raised by Defendant call into question, and require necessarily attachment to the motion papers, of proprietary business records, CC&F's including Operating Agreement and the negotiated Of Counsel Agreement with Defendant. (See Exhibit "B"). 13. CC&F's Operating Agreement necessarily addresses not only CC&F's general operating principles, but also sets forth in detail the compensation of CC&F's members. 14. Additionally, within Defendant's Notice to Produce, she seeks production of a plethora of confidential and proprietary documents, including but not limited to: (a) CC&F's Operating Agreements since the beginning of time; (b) documentation relating to 2020 compensation for all non-party members of CC&F; (c) year-end statistics, including billable hours and fees received for all non-party members of CC&F; (d) CC&F's application for a "payroll program" protection loan in 2020; (e) all documentation related to CC&F's PPP loan application; (f)CC&F's tax returns from 2017 to present; and (g) allcommunications, documents and materials exchanged between CC&F and itsaccountants related any services provided by those accountants. (See Exhibit "C"). 15. The Notice to Produce requests all such documents be disclosed within twenty (20) days, or by July 13, 2021 (allowing five [5] additional days, per the Civil Practice Law and Rules). (See id.). 16. It is respectfully submitted that any public interest in the disclosure of CC&F's confidential documents, which are primarily made up of proprietary business records and its members private compensation information, is outweighed by the harm to CC&F's competitive 3 3 of 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 standing and disclosure of its internal, proprietary information, as well as the confidential, financial information of itsmembers. 17. As such, the relevant considerations decisively favor leave to file any financial and business documents in this action under but not limited to the above- proprietary seal, including referenced Operating Agreement and Of Counsel Agreement in conjunction with CC&F's anticipated motion to dismiss. 18. Furthermore, given the sensitivity of the documents contemplated, CC&F respectfully requests an order staying all deadlines in this action pending resolution of this motion, to allow for the eventual filing of the aforementioned governing Agreements under seal in support of CC&F's motion to dismiss counterclaims, and to allow for resolution of these issues prior to CC&F's disclosure of sensitive financial and other proprietary information to Defendant without such Protective Order in place. 19. Neither Plaintiff nor any other party has made any prior application for similar relief in this matter. 8 WHEREFORE, Plaintiff, Costello, Cooney & Fearon, PLLC respectfully requests an Order: (a) granting this motion in its entirety; (b) issuing a protective order requiring all parties, and non-parties, filedocuments which contain confidential and proprietary information under seal; (c) staying the deadline for CC&F to reply to Defendant's counterclaims, or otherwise move to dismiss such counterclaims, until ten (10) days following resolution of the instant application by service of a final Order, with Notice of Entry; (d) staying the deadline for CC&F to respond to Defendant's Notice to Produce until twenty (20) days following resolution of this motion by 4 4 of 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 service of a final Order, with Notice of Entry; and (e) such other and further relief as this Court deems just and proper. DATED: June 28, 2021 PAUL G FERRARA Subscribed and sworn to before me this 28th day of June, 2021. Notary Public o LAURIE J. ALESCI Public of NewYork in the State Notary in Oswego Co. No.01AL4873119 n alifiad E2iission Expires October 6, 20._8 y 5 5 of 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/28/2021 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b The foregoing Affidavit was prepared on a computer. The .total number of words in the Affidavit, inclusive of point headings and footnotes, and exclusive of the caption, the table of contents, table of citations, signature block or certificate of compliance, etc. is 974, which complies with the word count limit. Dated: June 28, 2021 COSTELLO, COON & FEARON, PLLC PAUL C. FERRARA Attorneys for Plaintiff, Costello, Cooney & Fearon, PLLC Office and Post Office Address 211 West Jefferson Street Syracuse, NY 13202 Telephone: (315) 422-1152 6 of 6