Motion for Admissions in Pamela Goldstein, Ellyn Berk, Tony Berk, Paul Benjamin v. Houlihan/Lawrence Inc.| Trellis.Law

On July 14, 2018 a Exhibit,Appendix was filed involving a dispute between Ellyn Berk, Pamela Goldstein, Paul Benjamin, Tony Berk, and Houlihan Lawrence Inc., for Commercial Division in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 12/06/2021 04:42 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 953 RECEIVED NYSCEF: 12/06/2021

HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY

EXHIBIT 61

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

PAMELA GOLDSTEIN,
ELLYN & TONY BERK as Administrators Index No. 60767/2018
of the Estate of Winifred Berk, and
PAUL BENJAMIN, on behalf of themselves Hon. Linda S. Jamieson
and all others similarly situated,
PLAINTIFFS' RESPONSES
Plaintiffs, AND OBJECTIONS TO
v. DEFENDANT'S FIRST
HOULIHAN/LAWRENCE INC., REQUEST FOR PRODUCTION
OF DOCUMENTS
Defendant.

Pursuant to CPLR 3122, plaintiffs Pamela Goldstein, Ellyn and Tony Berk as

Administrators of the Estate of Winifred Berk, and Paul Benjamin (''Plaintiffs"), on

behalf of themselves and all others similarly situated, hereby respond and object to

Defendant's First Request for Production of Documents, dated July 5, 2019 (the

"Requests," and each individual request therein a "Request").

GENERAL RESPONSES

The following general responses apply to all of the Requests.

1. Plaintiffs base their responses (and any production of, or commitment

to produce, documents) on information reasonably available to them at this time.

As discovery in this matter is ongoing, additional information may affect Plaintiffs'

responses. Plaintiffs' responses are given without prejudice to, and with

reservation of, their right to supplement and amend these responses when and if

necessary.

2. Plaintiffs make their responses and any production of documents

without waiving the right to object on any ground to the use of these responses or

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documents in this lawsuit or in any administrative action, investigation,

proceeding or other litigation, including in the trial of this or any other case.

Production of documents does not imply an agreement or concession that the

documents are relevant or admissible in this p1·oceeding.

3. Inadvertent production of documents protected by the attorney-client

privilege, the work-product doctrine, or any other applicable privilege, doctrine,

immunity or rule of confidentiality is not to be construed as a waiver of the

protections afforded by that privilege, doctrine, immunity or rule of confidentiality.

4. A response to a Request is not a representation that Plaintiffs adopt,

accept, affirm, or admit the assertions, contentions, characterizations, instructions

or definitions used or made in connection with the request.

5. Any agreement by Plaintiffs to produce documents responsive to a

Request does not constitute a representation that any responsive documents exist.

6. Plaintiffs are available to meet and confer about the proper scope of

these Requests and the use of reasonable search parameters for identifying

potentially responsive documents, if any.

RECURRING OBJECTIONS

Plaintiffs make the following objections with respect to the Requests, and

incorpo1·ate them by reference into each response as if set forth fully therein. By

responding to any Request or failing to specifically refer to or specify any particular

Recurring Objection in response to a particular Request, Plaintiffs do not intend to

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waive any of these Recurring Objections, nor admit or concede the appropriateness

of any purported Request or any assumptions contained therein.

1. Plaintiffs object to Defendant's demand that all documents responsive

to the Requests be produced within 20 days after service.

2. Plaintiffs object to each Request to the extent it is vague, ambiguous,

overbroad and unduly burdensome, or seeks the production of information that is

not relevant, material, or necessary to any claim or defense of any party, is not

related to any issue necessary to address class certification, or is not reasonably

calculated to lead to the discovery of admissible evidence.

3. Plaintiffs object to any Request to the extent that it seeks to impose

upon Plaintiffs' obligations greater than those required by applicable law and rules.

4. Plaintiffs object to any Request to the extent that it seeks to impose

upon Plaintiffs' obligations greater than those Defendant undertook in responding

to Plaintiffs' Requests for Production of Documents.

5. Plaintiffs object to any Request to the extent the information sought is

more readily available or appropriately obtainable through other means of

discovery and to the extent that such information can be obtained in a manner or

from a source that is more convenient, less burdensome, or less expensive.

6. Plaintiffs object to each Request that fails to identify a time frame for

production. Unless otherwise indicated in response to a specific Request, Plaintiffs

will regard the time frame for responsive documents to the period from January 1,

2011 to the commencement of this action.

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7. Plaintiffs object to each Request to the extent that it seeks production

of documents or information protected by the attorney-client privilege, the work-

product doctrine, the joint-defense or common-interest privilege, or any other

applicable privilege, immunity, or protection.

8. Plaintiffs object to each Request to the extent that it seeks production

of documents that cannot be located after a reasonable search.

·9_ Plaintiffs object to each Request to the extent that it seeks production

of documents that are public, already in Defendants' possession, custody or control,

or otherwise readily available to Defendant.

10. Plaintiffs object to any Request to the extent that it is unreasonably

duplicative or cumulative.

11. Plaintiffs object to each Request as vague and ambiguous to the extent

that it uses undefined terms that are not commonly well understood.

12. Plaintiffs object to the definition of "Plaintiffs" insofar as it purports to

include "any individual or entity acting on their behalf, including real-estate

agents, attorneys, and accountants." Plaintiffs respond to these requests solely on

their own behalf.

13. Plaintiffs object to the definition of "Putative class members" insofar as

it purports to include "any individual or entity acting on their behalf, including

real-estate agents, attorneys, and accountants."

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14. Plaintiffs object to the definition of "Documents" to the extent it would

require Plaintiffs to produce documents from sources not readily accessible or

imposes burdens beyond those allowable unde1· applicable law and rules.

15. Plaintiffs object to the definition of "communications" to the extent it

would require Plaintiffs to produce documents from sources not readily accessible

or imposes burdens beyond those allowable under applicable law and rules.

16. Plaintiffs object to the Instructions to the extent they seek to impose

burdens beyond those required by applicable law and rules.

17. Plaintiffs object to the Instructions to the extent they seek to impose

burdens on Plaintiffs beyond those Defendant undertook in responding to

Plaintiffs' Requests for Production of Documents.

18. Plaintiffs object to Instruction No. 5 to the extent it seeks to impose

obligations for logging documents withheld as privileged beyond the requirements

of applicable law and rules.

DOCUMENTS REQUESTED

REQUEST NO. 1: All communications between any Plaintiff and any

Houlihan Lawrence representative, any Houlihan Lawrence real estate agent or

any representative of a Houlihan Lawrence real estate agent.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, duplicative, unduly burdensome, lacks specificity, seeks irrelevant and

immaterial information, seeks information in the possession of third parties, and

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seeks information already in Defendant's possession, custody or control. Plaintiffs

object to the extent this Request calls for the production of privileged or otherwise

protected documents. Subject to and without waiver of these objections, Plaintiffs

will produce non-privileged, responsive communications relating to Plaintiffs'

transactions that are the subject of the Amended Complaint (the "Plaintiffs'

Transactions,,) which they locate after a reasonable search.

REQUEST NO. 2: All non-privileged communications concerning the

allegations in the Amended Complaint, between Plaintiffs' counsel and putative

class members other than the named putative class representatives.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

vague, overboard, unduly burdensome, lacks specificity, and seeks irrelevant and

immaterial information. Plaintiffs object to the extent this request calls for the

production of privileged or otherwise protected documents. Plaintiffs object to this

Request on the ground that Defendant has not agreed to produce communications

between Defendant and its counsel and putative class members other than those

involved in the Plaintiffs' Transactions.

REQUEST NO. 3: All documents, including all communications between

Pamela Goldstein and any Houlihan Lawrence representative, any Houlihan

Lawrence real estate agent or any representative of a Houlihan Lawrence real

estate agent or other third parties, calendar entries, notes, and voice mail messages,

relating to or in any way referencing the purchase of the property located at 6

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Wellington Terrace, White Plains, New York 10607 (the "6 Wellington Terrace

Property").

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

vague, overboard, duplicative, unduly burdensome, lacks specificity, seeks

irrelevant and immaterial information, seeks information in the possession of third

parties, and seeks information already in Defendant's possession, custody, or

control. Plaintiffs object to the extent this. Request calls for the production of

privileged or otherwise protected documents. Subject to and without waiver of

these objections, Plaintiffs will produce non-privileged, responsive documents for

each Plaintiff which they locate after a reasonable search.

REQUEST NO. 4: All documents relating to Pamela Goldstein's claimed

damages in this case, if any.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, premature, duplicative, unduly burdensome, lacks specificity, calls for a

legal conclusion, seeks information in the possession of third parties, and seeks

information already in Defendant's possession, custody or control. Plaintiffs object

to the extent this Request calls for the production of privileged or otherwise

protected documents. Subject to and without waiver of these objections, Plaintiffs

will produce non-privileged, responsive documents for each Plaintiff which they

locate after a reasonable search.

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REQUEST NO. 5: All communications between Pamela Goldstein and any

third party regarding potential representation of Ms. Goldstein in her search for or

potential purchase of a home in 2017.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

vague, overboard, duplicative, unduly burdensome, lacks specificity, seeks

irrelevant and immaterial information, and seeks information in the possession of

third parties. Plaintiffs object to the extent this Request calls for the production of

privileged or otherwise protected documents. Subject to and without waiver of

these objections, Plaintiffs will produce non-privileged, responsive communications

for each Plaintiff which they locate after a reasonable search.

REQUEST NO. 6: All documents relating to Pamela Goldstein's purchase or

sale of any real property between 2008 and May 22, 2017, if any~

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overbroad, duplicative, unduly burdensome, lacks specificity, seeks irrelevant and

immaterial information, and seeks information in the possession of third parties.

Subject to and without waiver of these objections, Plaintiffs will produce non-

privileged, responsive documents to the extent they are among the documents

Plaintiffs have agreed to produce in response to Request Nos. 1, 3, and 5 above.

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REQUEST NO. 7: All agreements between Pamela Goldstein and her

counsel regarding compensation or payments to Ms. Goldstein for her acting as a

class representative in this case.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, and seeks irrelevant and

immaterial information. Plaintiffs object to the extent this Request calls for the

production of privileged or otherwise protected documents. Subject to and without

waiver of these objections, Plaintiffs will produce non-privileged, responsive

documents for each Plaintiff which they locate after a reasonable search.

REQUEST NO. 8: All documents evidencing any relationship between

Ms. Goldstein and her counsel in this case prior to July 14, 2018.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, and seeks irrelevant and

immaterial information. Plaintiffs object to the extent this Request calls for the

production of privileged or otherwise protected documents. Subject to and without

waiver of these objections, Plaintiffs will produce non-privileged, responsive

documents sufficient to show any relationship between the Plaintiffs and their

counsel prior to their involvement in this case.

REQUEST NO. 9: All documents evidencing each instance in which

Ms. Goldstein has acted as a class representative.

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RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, and seeks irrelevant and

immaterial information. Plaintiffs object to the extent this Request calls for the

production of privileged or otherwise protected documents. Subject to and without

waiver of these objections, Plaintiffs will produce responsive, non-privileged

documents sufficient to show each instance in which Plaintiffs have acted as a class

representative.

REQUEST NO. 10: All documents relating to all instances in which

Ms. Goldstein has been a plaintiff in a civil lawsuit.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, seeks irrelevant and immaterial

information, and seeks information that is public. Plaintiffs object to the extent this

Request calls for the production of privileged or otherwise protected documents.

REQUEST NO. 11: All documents evidencing any payments from

Ms. Goldstein to Houlihan Lawrence or its real estate agents or representatives.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, duplicative, unduly burdensome, lacks specificity, seeks irrelevant and

immaterial information, and seeks information that is already in Defendant's

possession, custody, or control. Plaintiffs object to the extent this Request calls for

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the production of privileged or otherwise protected documents. Subject to and

without waiver of these objections, Plaintiffs will produce non-privileged, responsive

documents sufficient to show any payments from Plaintiffs to Houlihan Lawrence in

connection with the Plaintiffs' Transactions which they locate after a reasonable

search.

REQUEST NO. 12: All documents, including all communications between

Tony Berk and/or Ellyn Berk and any Houlihan Lawrence representative, any

Houlihan Lawrence real estate agent or any representative of a Houlihan Lawrence

real estate agent or other third parties, calendar entries, notes, and voice mail

messages, relating to or in any way referencing the sale or purchase of the property

located at 190 Davis Avenue, White Plains, New York 10605 (the "190 Davis

Avenue Property").

RESPONSE: See response to Request No. 3.

REQUEST NO. 13: All documents relating to Tony and Ellyn Berk's

claimed damages in this case, if any.

RESPONSE: See response to Request No. 4.

REQUEST NO. 14: All communications between Tony Berk and/or Ellyn

Berk and any third party regarding potential representation of Tony and Ellyn Berk

in their search for or potential purchase of a home from 2013 to 2014.

RESPONSE: See response to Request No. 5.

REQUEST NO. 15: All documents relating to Tony Berk's or Ellyn Berk's

purchase or sale of any real property between 2008 and June 30, 2014, if any.

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RESPONSE: See response to Request No. 6.

REQUEST NO. 16: All agreements between Tony Berk and/or Ellyn Berk

and counsel regarding compensation or payments to the Berks for their acting as

class representatives in this case.

RESPONSE: See response to Request No. 7.

REQUEST NO. 17: All documents evidencing any relationship between

Tony and/or Ellyn Berk and their counsel in this case prior to July 14, 2018.

RESPONSE: See response to Request No. 8.

REQUEST NO. 18: All documents evidencing each instance in which Tony

Berk or Ellyn Berk has acted as a class representative.

RESPONSE: See response to Request No. 9.

REQUEST NO. 19: All documents relating to all instances in which Tony

Berk or Ellyn Berk has been a plaintiff in a civil lawsuit.

RESPONSE: See response to Request No. 10.

REQUEST NO. 20: All documents evidencing any payments from Tony

Berk and/or Ellyn Berk to Houlihan Lawrence or its real estate agents or

representatives.

RESPONSE: See response to Request No. 11.

REQUEST NO. 21: All documents, including all communications between

Paul Benjamin and any Houlihan Lawrence representative, any Houlihan

Lawrence real estate agent or any representative of a Houlihan Lawrence real

estate agent or other third parties, calendar entries, notes, and voice mail messages,

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relating to or in any way referencing the purchase or sale of the property located at

16 Old Logging Road, Bedford, New York 10506 (the "16 Old Logging Road

Property").

RESPONSE: See response to Request No. 3.

REQUEST NO. 22: All documents relating to Paul Benjamin's claimed

damages in this case, if any.

RESPONSE: See response to Request No. 4.

REQUEST NO. 23: All communications between Paul Benjamin and any

third party regarding potential representation of Mr. Benjamin in his search for or

potential purchase of a home in 2016.

RESPONSE: See response to Request No. 5.

REQUEST NO. 24: All documents relating to Paul Benjamin's purchase or

sale of any real property between 2008 and July 5, 2016, if any.

RESPONSE: See response to Request No. 6.

REQUEST NO. 25: All agreements between Paul Benjamin and his counsel

regarding compensation or payments to Mr. Benjamin for his acting as a class

representative in this case.

RESPONSE: See response to Request No. 7.

REQUEST NO. 26: All documents evidencing any relationship between

Mr. Benjamin and his counsel in this case prior to July 14, 2018.

RESPONSE: See response to Request No. 8.

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REQUEST NO. 27: All documents evidencing each instance in which

Mr. Benjamin has acted as a class representative.

RESPONSE: See response to Request No. 9.

REQUEST NO. 28: All documents relating to all instances in which

Mr. Benjamin has been a plaintiff in a civil lawsuit.

RESPONSE: See response to Request No. 10.

REQUEST NO. 29: All documents evidencing any payments from

Mr. Benjaminto Houlihan Lawrence or its real estate agents or representatives.

RESPONSE: See response to Request No. 11.

REQUEST NO. 30: All communications with any testifying expert in

this matter.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, seeks irrelevant and immaterial

information, calls for the production of privileged or otherwise protected documents.

REQUEST NO. 31: All attorney appearances that Plaintiffs Pamela

Goldstein and/or Tony Berk have filed in litigation involving real estate, agency

law, or informed consent.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, unduly burdensome, lacks specificity, seeks irrelevant and immaterial

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information, and seeks information that is public. Plaintiffs object to the extent this

Request calls for the production of privileged or otherwise protected documents.

REQUEST NO. 32: All documents and communications in any way relating

to the anonymous correspondence that the named Plaintiffs or their counsel have

received concerning this lawsuit.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this request on the grounds that it is

overboard, unduly burdensome, lacks specificity, seeks irrelevant and immaterial

information, and call£? for the ,production of privileged or otherwise protected

documents. Subject to and without waiver of these objections, Plaintiffs will

produce the anonymous correspondence that the Plaintiffs or their counsel have

received· concerning this lawsuit.

REQUEST NO. 33: All documents, communications, comments, photos,

videos, or other material that any Plaintiff has placed on soGial media, in connection

with the real estate described in or the allegations in the Amended Complaint.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, duplicative, unduly burdensome, lacks specificity, seeks irrelevant and

immaterial information, and seeks information that is public. Subject to and

without waiver of these objections, Plaintiffs will produce non-privileged, responsive

documents relating to the Plaintiffs' Transactions which they locate after a

reasonable search.

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REQUEST NO. 34: All documents, communications, photos, videos, or other

material concerning the renovation, remodeling, or pre-sale preparation of the

190 Davis Avenue Property between the date on which Tony and Ellyn Berk signed

such property's listing agreement and the date on which Tony and Ellyn Berk

agreed to sell such property to Carlton and Katherine Light.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

vague, overboard, unduly burdensome, lacks specificity, seeks irrelevant and

immaterial information, seeks information in the possession of third parties, and

seeks information that is already in Defendant's possession, custody, or control.

Plaintiffs object to the extent this Request calls for the production of privileged or

otherwise protected documents. Subject to and without waiver of these objections,

Plaintiffs will produce non-privileged, responsive documents which they locate after

a reasonable search.

REQUEST NO. 35: All documents and communications concerning the

decision whether to list the 190 Davis Avenue Property on the Multiple Listing

Service, the Hudson Gateway Multiple Listing Service, any other listing service, or

any publicly accessible platform, including online databases such as Zillow, Trulia,

Realtor.com and Redfin.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboru.·d, unduly burdensome, lacks specificity, seeks irrelevant and immaterial

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information, and calls for the production of privileged or otherwise protected

documents. Subject to and without waiver of these objections, Plaintiffs will

produce non-privileged, responsive documents relating to Tony and Ellyn Berk's

sale of the 190 Davis Avenue property which they locate after a reasonable search.

REQUEST NO. 36: All documents and communications evidencing or

concerning the harm, monetary or otherwise, allegedly suffered by Plaintiffs or

other putative class members.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, premature, unduly burdensome, lacks specificity, calls for a legal

conclusion, and calls for the production of privileged or otherwise protected

documents. Plaintiffs object to the extent this Request calls for the production of

privileged or otherwise protected documents. Subject to and without waiver of

these objections, Plaintiffs will produce non-privileged, responsive documents

relating to the Plaintiffs' Transactions which they locate after a reasonable search.

REQUEST NO. 37: All documents and communications evidencing or

concerning the price that Pamela Goldstein would have paid for the 6 Wellington

Terrace Property but for Houlihan Lawrence's alleged failure to obtain

Ms. Goldstein's informed consent to dual agency.

RESPONSE: In addition to the General Responses and Recurring

Objections set forth above, Plaintiffs object to this Request on the grounds that it is

overboard, premature, unduly burdensome, lacks specificity, seeks irrelevant and

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immaterial information, calls for a legal conclusion, and calls for the production of

privileged or otherwise protected documents. Plaintiffs object to the extent this

Request calls for the production of privileged or otherwise protected documents.

Subject to and without waiver of these objections, Plaintiffs will produce non-

privileged, responsive documents which they locate after a reasonable search.

REQUEST NO. 38: All documents and communications evidencing or

concerning the price that Paul Benjamin would have paid for the 16 Old Logging Road

Property but for Houlihan Lawrence's alleged failure to obtain Mr. Benjamin's

informed consent to dual agency.

RESPONSE: See response to Request No. 37.

REQUEST NO. 39: All documents and communications evidencing or

concerning the price that Tony and Ellyn Berk would have accepted for the

190 Davis Avenue Property but for Houlihan Lawrence's alleged failure to obtain

the Berks' informed consent to dual agency.