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FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
REPLY AFFIDAVIT OF
ANDREW J. RYAN, ESQ.
vs.
Index No.: 003917/2021
MELINDA BURDICK BOWE,
Defendant.
STATE OF NEW YORK)
COUNTY OF MONROE): ss
ANDREW J. RYAN, ESQ., being duly sworn, deposes and says:
1. I am an attorney at law and a member of the law firm of Woods Oviatt Gilman LLP,
attorneys for Defendant Melinda Burdick Bowe, Esq., in the above matter, and I make this
Affidavit based on my personal knowledge of the facts set forth herein.
2. I make this reply affidavit in further support of Defendant’s cross-motion to
compel.
PLAINTIFF’S RESPONSES TO
DEFENDANT’S INTERROGATORIES ARE INSUFFICIENT
A. Plaintiff's reference to hundreds of pages of documents is not an adequate
response.
3. In a good faith effort to resolve the dispute regarding the Plaintiff's Interrogatory
Responses, the undersigned communicated with counsel for the Plaintiff regarding their
Interrogatory responses (see NYCEF Doc. No. 55).
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4. The Plaintiff's initial Interrogatory Responses were admittedly insufficient, so the
Plaintiff submitted Amended Responses, which claimed that the answers had already been
provided in the documents that Plaintiff previously produced (NYCEF Doc. No. 54).
5. In an effort to resolve the issue, the undersigned requested that Mr. Rose "provide
me with the Bates numbers of the documents that you believe are responsive to those
interrogatories [5, 6, 7 and 8]" (see NYCEF Doc. No. 55).
6. Given that Plaintiff’s document production was over 9,000 pages, when the
undersigned requested the Bates numbers, I expected a reference to concise lists responsive to the
specific Interrogatories.
7. In response, Mr. Rose made reference to more than 100 pages of documents from
the Plaintiff's document production. Id. This was in no way responsive to the Defendant's
Interrogatories.
8. Notably, Mr. Rose’s reply email is dated May 10, 2022, the day before Defendant’s
cross-motion papers were due to be filed. Id.
9. It would be wholly unreasonable and burdensome to expect Plaintiff to sift through
more than 100 pages of documents to decipher the identities of the clients for whom Ms. Bowe
performed work for and the clients originated by Ms. Bowe under the Of Counsel Agreement in
order to glean a response to Interrogatories 5 and 6.
10. Similarly, Plaintiff’s reference to 170 pages of heavily redacted billing records is a
wholly insufficient response to Interrogatories 7 and 8, which specially ask for a list of payments
received by the Plaintiff in connection with the Of Counsel Agreement.
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B. Plaintiff's Interrogatory responses exclude relevant payments.
11. In addition to Plaintiff's failure to provide proper Interrogatory responses, Plaintiff's
purported responses exclude relevant information.
12. Interrogatory 7 states, “Provide a list of all payments received by Plaintiff for work
performed by Defendant on or after the execution of the Of Counsel Agreement through the
present, along with the date each payment was received.” (See NYCEF Doc. No. 52) (emphasis
added).
13. Interrogatory 8 states, “Provide a list of all payments received by Plaintiff for
clients originated by Defendant for work performed by others within the Plaintiff (other than
Defendant) on or after the execution of the Of Counsel Agreement, and the date that each
payment was received." Id. (emphasis added).
14. Plaintiff’s purported responsive summaries (NYCEF Doc. Nos. 59 and 61), are
reports of payments from Plaintiff's billing software which, according to the headers on the reports,
are limited to the time period between November 23, 2020 and April 18, 2021, when the Of Counsel
Agreement was terminated.
15. Thus, the reports exclude all payments received after April 18, 2021, which is not
fully responsive to the interrogatory.
16. Interrogatories 7 and 8 are not limited to that time frame, and Plaintiff’s response
is insufficient and patently improper.
17. Likewise, Plaintiff's Exhibit T (NYCEF Doc. No. 60), which purports to be a list
of payments received by Plaintiff for work performed by Ms. Bowe, only includes payments
"received as of 04/08/2021" Id. Thus, it excludes all payments received after that date and is
similarly deficient.
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18. Further, Plaintiff attempts to distract the Court by stating that Defendant failed to
object to the references to the Bates numbers that are purportedly responsive to the pertinent
Interrogatories.
19. Such a contention is disingenuous at best, as the undersigned received Mr. Rose’s
email referencing the Bates Numbers in the afternoon of the day before any cross-motion papers
were due to be filed.
20. There simply was not ample amount of time for the undersigned to review all
referenced Bates numbers to respond in any meaningful manner to Mr. Rose. In any event, the
Plaintiff's responses are insufficient, and according to Mr. Rose's affidavit, Plaintiff believes that
its responses were sufficient and is opposed to providing full responses (Rose Aff at ¶¶18-19).
Therefore, any additional good faith discussions would have been futile.
THERE IS NO REASON TO REJECT ATTORNEY BOWE'S AFFIRMATION
21. Plaintiff objects to Attorney Bowe's use of an affirmation instead of an affidavit
because she is a party to this action. It is respectfully submitted that the Court reject the Plaintiff's
elevation of form over substance, and accept Attorney Bowe's previously submitted affirmation.
22. However, in order to satisfy the Plaintiff and cure any alleged infirmity, Attorney
Bowe executed an affidavit, which is identical to her previously submitted affirmation, that is
being filed herewith.
CONCLUSION
23. Based on the foregoing, it is respectfully requested that the Court order the Plaintiff
to provide: (a) full and complete responses to Interrogatories 5, 6, 7 and 8, including payments
received after the Of Counsel Agreement was terminated; and (b) all documents that were withheld
under the attorney client privilege where Ms. Bowe was a party to the communication; (c) all
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documents that were withheld under the attorney work product privilege where Ms. Bowe was the
attorney who made the work product., and (d) unredacted documents where the redaction was based
on alleged irrelevancy. This information is necessary to the Defendant in order to calculate the
amount of money that is due to her under the Of Counsel Agreement. The information requested
— the amount of fees collected by the firm for work done by Ms. Bowe and others at the firm — is
solely in the Plaintiffs possession. Plaintiff is withholding this information, making it impossible
for the Defendant to calculate the amounts due to her.
dr yan, Esq.
Sworn to on this ")41.th
day of May, 2022
Notary Public
VIRGINIA A. TRIOLI
Notary Public, State of New York
Qualified in Wayne County
No. 01TR6308867
Commission Expires August 4, 2022
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FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the word count limit pursuant to
22 NYCRR 202.70 Rule 17 because it contains 1,018 words, excluding the parts of the document
exempted by said Rule.
Dated: May 24, 2022 WOODS OVIATT GILMAN LLP
By: /s/ Andrew J. Ryan
Andrew J. Ryan, Esq.
Attorneys for Plaintiff
1900 Bausch & Lomb Pl.
Rochester, New York 14604
585-987-2800
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Preview
FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, REPLY AFFIDAVIT OF ANDREW J. RYAN, ESQ. vs. Index No.: 003917/2021 MELINDA BURDICK BOWE, Defendant. STATE OF NEW YORK) COUNTY OF MONROE): ss ANDREW J. RYAN, ESQ., being duly sworn, deposes and says: 1. I am an attorney at law and a member of the law firm of Woods Oviatt Gilman LLP, attorneys for Defendant Melinda Burdick Bowe, Esq., in the above matter, and I make this Affidavit based on my personal knowledge of the facts set forth herein. 2. I make this reply affidavit in further support of Defendant’s cross-motion to compel. PLAINTIFF’S RESPONSES TO DEFENDANT’S INTERROGATORIES ARE INSUFFICIENT A. Plaintiff's reference to hundreds of pages of documents is not an adequate response. 3. In a good faith effort to resolve the dispute regarding the Plaintiff's Interrogatory Responses, the undersigned communicated with counsel for the Plaintiff regarding their Interrogatory responses (see NYCEF Doc. No. 55). {8868648: } 1 of 6 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 4. The Plaintiff's initial Interrogatory Responses were admittedly insufficient, so the Plaintiff submitted Amended Responses, which claimed that the answers had already been provided in the documents that Plaintiff previously produced (NYCEF Doc. No. 54). 5. In an effort to resolve the issue, the undersigned requested that Mr. Rose "provide me with the Bates numbers of the documents that you believe are responsive to those interrogatories [5, 6, 7 and 8]" (see NYCEF Doc. No. 55). 6. Given that Plaintiff’s document production was over 9,000 pages, when the undersigned requested the Bates numbers, I expected a reference to concise lists responsive to the specific Interrogatories. 7. In response, Mr. Rose made reference to more than 100 pages of documents from the Plaintiff's document production. Id. This was in no way responsive to the Defendant's Interrogatories. 8. Notably, Mr. Rose’s reply email is dated May 10, 2022, the day before Defendant’s cross-motion papers were due to be filed. Id. 9. It would be wholly unreasonable and burdensome to expect Plaintiff to sift through more than 100 pages of documents to decipher the identities of the clients for whom Ms. Bowe performed work for and the clients originated by Ms. Bowe under the Of Counsel Agreement in order to glean a response to Interrogatories 5 and 6. 10. Similarly, Plaintiff’s reference to 170 pages of heavily redacted billing records is a wholly insufficient response to Interrogatories 7 and 8, which specially ask for a list of payments received by the Plaintiff in connection with the Of Counsel Agreement. {8868648: } 2 of 6 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 B. Plaintiff's Interrogatory responses exclude relevant payments. 11. In addition to Plaintiff's failure to provide proper Interrogatory responses, Plaintiff's purported responses exclude relevant information. 12. Interrogatory 7 states, “Provide a list of all payments received by Plaintiff for work performed by Defendant on or after the execution of the Of Counsel Agreement through the present, along with the date each payment was received.” (See NYCEF Doc. No. 52) (emphasis added). 13. Interrogatory 8 states, “Provide a list of all payments received by Plaintiff for clients originated by Defendant for work performed by others within the Plaintiff (other than Defendant) on or after the execution of the Of Counsel Agreement, and the date that each payment was received." Id. (emphasis added). 14. Plaintiff’s purported responsive summaries (NYCEF Doc. Nos. 59 and 61), are reports of payments from Plaintiff's billing software which, according to the headers on the reports, are limited to the time period between November 23, 2020 and April 18, 2021, when the Of Counsel Agreement was terminated. 15. Thus, the reports exclude all payments received after April 18, 2021, which is not fully responsive to the interrogatory. 16. Interrogatories 7 and 8 are not limited to that time frame, and Plaintiff’s response is insufficient and patently improper. 17. Likewise, Plaintiff's Exhibit T (NYCEF Doc. No. 60), which purports to be a list of payments received by Plaintiff for work performed by Ms. Bowe, only includes payments "received as of 04/08/2021" Id. Thus, it excludes all payments received after that date and is similarly deficient. {8868648: } 3 of 6 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 18. Further, Plaintiff attempts to distract the Court by stating that Defendant failed to object to the references to the Bates numbers that are purportedly responsive to the pertinent Interrogatories. 19. Such a contention is disingenuous at best, as the undersigned received Mr. Rose’s email referencing the Bates Numbers in the afternoon of the day before any cross-motion papers were due to be filed. 20. There simply was not ample amount of time for the undersigned to review all referenced Bates numbers to respond in any meaningful manner to Mr. Rose. In any event, the Plaintiff's responses are insufficient, and according to Mr. Rose's affidavit, Plaintiff believes that its responses were sufficient and is opposed to providing full responses (Rose Aff at ¶¶18-19). Therefore, any additional good faith discussions would have been futile. THERE IS NO REASON TO REJECT ATTORNEY BOWE'S AFFIRMATION 21. Plaintiff objects to Attorney Bowe's use of an affirmation instead of an affidavit because she is a party to this action. It is respectfully submitted that the Court reject the Plaintiff's elevation of form over substance, and accept Attorney Bowe's previously submitted affirmation. 22. However, in order to satisfy the Plaintiff and cure any alleged infirmity, Attorney Bowe executed an affidavit, which is identical to her previously submitted affirmation, that is being filed herewith. CONCLUSION 23. Based on the foregoing, it is respectfully requested that the Court order the Plaintiff to provide: (a) full and complete responses to Interrogatories 5, 6, 7 and 8, including payments received after the Of Counsel Agreement was terminated; and (b) all documents that were withheld under the attorney client privilege where Ms. Bowe was a party to the communication; (c) all {8868648: } 4 of 6 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 documents that were withheld under the attorney work product privilege where Ms. Bowe was the attorney who made the work product., and (d) unredacted documents where the redaction was based on alleged irrelevancy. This information is necessary to the Defendant in order to calculate the amount of money that is due to her under the Of Counsel Agreement. The information requested — the amount of fees collected by the firm for work done by Ms. Bowe and others at the firm — is solely in the Plaintiffs possession. Plaintiff is withholding this information, making it impossible for the Defendant to calculate the amounts due to her. dr yan, Esq. Sworn to on this ")41.th day of May, 2022 Notary Public VIRGINIA A. TRIOLI Notary Public, State of New York Qualified in Wayne County No. 01TR6308867 Commission Expires August 4, 2022 :tiS68648: 5 of 6 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/24/2022 CERTIFICATE OF COMPLIANCE I hereby certify that this document complies with the word count limit pursuant to 22 NYCRR 202.70 Rule 17 because it contains 1,018 words, excluding the parts of the document exempted by said Rule. Dated: May 24, 2022 WOODS OVIATT GILMAN LLP By: /s/ Andrew J. Ryan Andrew J. Ryan, Esq. Attorneys for Plaintiff 1900 Bausch & Lomb Pl. Rochester, New York 14604 585-987-2800 {8868648: } 6 of 6