Preview
FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/24/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
AFFIDAVIT OF
MELINDA B. BOWE, ESQ.
vs.
Index No.: 003917/2021
MELINDA BURDICK BOWE,
Defendant.
STATE OF NEW YORK)
COUNTY OF MONROE): ss
MELINDA B. BOWE, ESQ., being duly sworn, deposes and says:
1. I am an attorney at law and a former member of Plaintiff, Costello, Cooney &
Fearon, PLLC (the "Firm") and I am the named Defendant herein.
2. I make this Affidavit based on my personal knowledge of the facts set forth herein.
3. To cure any alleged deficiencies in my Affirmation dated May 11, 2022, I
respectfully request that this Affidavit be considered as if it has been submitted on May 11, 2022
in support of my cross-motion to compel and in opposition to Plaintiffs motion to compel.
BACKGROUND
4. I was a member of the Firm from 2017 until 2020, when I voluntarily left,
seemingly on good terms. In fact, after ceasing to be a member of the Firm, I was requested by
the Firm to continue to perform work for clients through the Firm pursuant to an Of Counsel
Agreement, a copy of which is attached hereto as Exhibit "A."
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5. The dispute arose in March 2021, when the Firm decided that it wanted to reclassify
certain of the 2020 profits that it had already paid to me, and asked me to pay back some of the
profits.
6. When I declined to do so without more explanation, the Firm filed a Complaint
against me, asserting five causes of action for unjust enrichment, breach of the Operating
Agreement, conversion, and breach of fiduciary duty, and breached the Of Counsel Agreement by
failing to adhere to the clear terms requiring bimonthly draws and payment of fees for work
performed.
7. As a result of the Firm's breach of the Of Counsel Agreement, I was forced to
terminate the Agreement as of April 18, 2020 as I was no longer being paid by the Firm for any
work I performed under the Agreement.
THE PLAINTIFF'S DISCOVERY DEMANDS
8. The Plaintiff served my counsel with over seventy (70) different demands for
discovery in this case (see, Affidavit of Andrew J. Ryan, Esq.). I was forced to spend a
considerable amount of time reviewing the Plaintiffs demands, searching for relevant documents,
and responding to the demands
9. There exists a lack of proportionality between the Plaintiffs discovery demands and
the amount of money at issue in this case. The Plaintiffs massive discovery demands were clearly
undertaken primarily to delay or prolong the resolution of the litigation, and were intended to do
nothing but harass and annoy me, and force me to incur unnecessary attorneys' fees in order to
respond to those demands.
10. However, I responded to their demands, with a few notable exceptions.
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FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/24/2022
11. For example, the Plaintiff served a Demand for Defendant's Residence, even though
the Plaintiff is fully aware of my residence address.
12. In fact, the Plaintiff mailed tax documents to my address, so it obviously knows my
address. This demand is petty and demonstrates the Plaintiffs strategy to force me to incur
unnecessary legal fees by responding to demands that have no other purpose but to force me to do
so.
13. Another example is the Plaintiffs Demand for Tax Returns, which seeks copies of
my personal tax returns from 2017 through 2021.
14. There are no allegations in the Complaint or my counterclaims relating to any
events that occurred prior to 2020, and yet, the Plaintiff seeks my tax returns from as far back as
2017.
15. The assertions in the Plaintiff's Complaint all relate to the alleged overpayment of
profit distributions made to me between December 2020 and March 2021 (See, Complaint at
¶¶ 19-21). There is nothing in the Complaint that would warrant the Plaintiff needing to see my
tax returns for three years prior to the occurrences alleged in the Complaint.
16. Furthermore, my personal tax returns have absolutely no relevance to the
allegations in the Complaint.
17. Plaintiff claims that it needs to see my tax returns in order to determine the "tax
treatment" of the money I received.
18. After I left the Firm, it sent me an IRS form K-9 for the 2020 tax year relating to
compensation that was paid to me as a member of the firm, and an IRS form 1099 for 2020 relating
to compensation that was paid to me pursuant to the Of Counsel Agreement.
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19. Thus, it was the Firm that determined the tax treatment of the monies that was paid
to me as both a member and as of counsel in 2020. I reported both types of income (the K-9
income and the 1099 income) as regular income.
20. The Plaintiff has articulated no legitimate reason why it needs to see my personal
tax returns in order to determine the amount of money that the firm paid to me in 2020 and 2021.
As far as I can tell, those amounts are not in dispute. The "tax treatment" of the money paid to me
by the Plaintiff is irrelevant.
21. I filed joint tax returns with my husband for each of those years, and there is
absolutely no reason that the Plaintiff needs to see mine and my husband's tax returns based on
the nature of the dispute in this case.
22. The Plaintiffs request for my tax returns is another example of the Plaintiff's tactic
of attempting to bury me with discovery requests and to harass me into submission.
23. I respectfully request that the Court issue an Order that I am not required to divulge
my personal tax returns to the Plaintiff, and deny the Plaintiffs motion in its entirety to prevent the
Plaintiff from continuing with this behavior.
Melinda B. B
Sworn to on this 9t-lik.
day of May, 2022
0 t111114,
Notary Public
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FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 64 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 929 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.
Attorneysforfor Plaintiff
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. 64 RECEIVED NYSCEF: 05/24/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, AFFIDAVIT OF MELINDA B. BOWE, ESQ. vs. Index No.: 003917/2021 MELINDA BURDICK BOWE, Defendant. STATE OF NEW YORK) COUNTY OF MONROE): ss MELINDA B. BOWE, ESQ., being duly sworn, deposes and says: 1. I am an attorney at law and a former member of Plaintiff, Costello, Cooney & Fearon, PLLC (the "Firm") and I am the named Defendant herein. 2. I make this Affidavit based on my personal knowledge of the facts set forth herein. 3. To cure any alleged deficiencies in my Affirmation dated May 11, 2022, I respectfully request that this Affidavit be considered as if it has been submitted on May 11, 2022 in support of my cross-motion to compel and in opposition to Plaintiffs motion to compel. BACKGROUND 4. I was a member of the Firm from 2017 until 2020, when I voluntarily left, seemingly on good terms. In fact, after ceasing to be a member of the Firm, I was requested by the Firm to continue to perform work for clients through the Firm pursuant to an Of Counsel Agreement, a copy of which is attached hereto as Exhibit "A." {8865894: } 1 of 5 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/24/2022 5. The dispute arose in March 2021, when the Firm decided that it wanted to reclassify certain of the 2020 profits that it had already paid to me, and asked me to pay back some of the profits. 6. When I declined to do so without more explanation, the Firm filed a Complaint against me, asserting five causes of action for unjust enrichment, breach of the Operating Agreement, conversion, and breach of fiduciary duty, and breached the Of Counsel Agreement by failing to adhere to the clear terms requiring bimonthly draws and payment of fees for work performed. 7. As a result of the Firm's breach of the Of Counsel Agreement, I was forced to terminate the Agreement as of April 18, 2020 as I was no longer being paid by the Firm for any work I performed under the Agreement. THE PLAINTIFF'S DISCOVERY DEMANDS 8. The Plaintiff served my counsel with over seventy (70) different demands for discovery in this case (see, Affidavit of Andrew J. Ryan, Esq.). I was forced to spend a considerable amount of time reviewing the Plaintiffs demands, searching for relevant documents, and responding to the demands 9. There exists a lack of proportionality between the Plaintiffs discovery demands and the amount of money at issue in this case. The Plaintiffs massive discovery demands were clearly undertaken primarily to delay or prolong the resolution of the litigation, and were intended to do nothing but harass and annoy me, and force me to incur unnecessary attorneys' fees in order to respond to those demands. 10. However, I responded to their demands, with a few notable exceptions. {8865894: } 2 of 5 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/24/2022 11. For example, the Plaintiff served a Demand for Defendant's Residence, even though the Plaintiff is fully aware of my residence address. 12. In fact, the Plaintiff mailed tax documents to my address, so it obviously knows my address. This demand is petty and demonstrates the Plaintiffs strategy to force me to incur unnecessary legal fees by responding to demands that have no other purpose but to force me to do so. 13. Another example is the Plaintiffs Demand for Tax Returns, which seeks copies of my personal tax returns from 2017 through 2021. 14. There are no allegations in the Complaint or my counterclaims relating to any events that occurred prior to 2020, and yet, the Plaintiff seeks my tax returns from as far back as 2017. 15. The assertions in the Plaintiff's Complaint all relate to the alleged overpayment of profit distributions made to me between December 2020 and March 2021 (See, Complaint at ¶¶ 19-21). There is nothing in the Complaint that would warrant the Plaintiff needing to see my tax returns for three years prior to the occurrences alleged in the Complaint. 16. Furthermore, my personal tax returns have absolutely no relevance to the allegations in the Complaint. 17. Plaintiff claims that it needs to see my tax returns in order to determine the "tax treatment" of the money I received. 18. After I left the Firm, it sent me an IRS form K-9 for the 2020 tax year relating to compensation that was paid to me as a member of the firm, and an IRS form 1099 for 2020 relating to compensation that was paid to me pursuant to the Of Counsel Agreement. {8865894: } 3 of 5 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/24/2022 19. Thus, it was the Firm that determined the tax treatment of the monies that was paid to me as both a member and as of counsel in 2020. I reported both types of income (the K-9 income and the 1099 income) as regular income. 20. The Plaintiff has articulated no legitimate reason why it needs to see my personal tax returns in order to determine the amount of money that the firm paid to me in 2020 and 2021. As far as I can tell, those amounts are not in dispute. The "tax treatment" of the money paid to me by the Plaintiff is irrelevant. 21. I filed joint tax returns with my husband for each of those years, and there is absolutely no reason that the Plaintiff needs to see mine and my husband's tax returns based on the nature of the dispute in this case. 22. The Plaintiffs request for my tax returns is another example of the Plaintiff's tactic of attempting to bury me with discovery requests and to harass me into submission. 23. I respectfully request that the Court issue an Order that I am not required to divulge my personal tax returns to the Plaintiff, and deny the Plaintiffs motion in its entirety to prevent the Plaintiff from continuing with this behavior. Melinda B. B Sworn to on this 9t-lik. day of May, 2022 0 t111114, Notary Public {8865894: } 4 of 5 FILED: ONONDAGA COUNTY CLERK 05/24/2022 05:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 64 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 929 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. Attorneysforfor Plaintiff Plaintiff 1900 Bausch & Lomb Pl. Rochester, New York 14604 585-987-2800 {8865894: } {8865894:} 5 of 5