Preview
FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1460 To commence the statutory time period
RECEIVED forappeals
NYSCEF: as09/08/2022
of right (CPLR § 5513 [a]), you are advised to serve a
copy of this order, with notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. LINDA S. JAMIESON
——————————————————————————————————————X
PAMELA GOLDSTEIN, ELLYN & TONY BERK,
as Administrators of the Estate of
Winifred Berk, and PAUL BENJAMIN,
on behalf of themselves and all others
similarly situated,
Index No. 60767/2018
Plaintiffs,
DECISION AND ORDER
-against-
HOULIHAN/LAWRENCE INC.
Defendant.
——————————————————————————————————————X
The following papers numbered 1 to 6 were read on the
motion (seq. no. 12) by class action plaintiffs pursuant to CPLR
§ 4403 and Section 202.44 of the Uniform Rules for Trial Courts
for an Order confirming the Seventeenth Report and
Recommendation dated June 30, 2022 (the “17th Report”) as
entered by the Discovery Referee William P. Harrington, Esq.
(the “Discovery Referee”), and on the related cross-motion of
defendant Houlihan/Lawrence Inc. (“defendant”) pursuant to CPLR
§ 4403 and Section 202.44 of the Uniform Rules for Trial Courts
for an Order rejecting that portion of the 17th Report relating
to the designation of discovery custodians:
Papers Numbered
Notice of Motion, Declaration and Exhibits 1
1
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Memorandum of Law in Support 2
Notice of Cross-Motion, Affirmation and Exhibits 3
Memorandum of Law in Opposition/Support of Cross-Motion 4
Reply Declaration and Exhibits 5
Memorandum of Law in Reply/Opposition to Cross-Motion 6
BACKGROUND
This class action lawsuit arises out of allegations that
defendant acted as an undisclosed, non-consensual dual agent in
representing both buyers and sellers in approximately 10,000
residential real estate sales transactions throughout the Hudson
Valley. Due to the highly litigious nature of this action, the
Court in May 2019 appointed the Discovery Referee to oversee and
manage the multitude of issues that have arisen in connection
with discovery in this three-year-old lawsuit. As such, the
Discovery Referee has served an invaluable role in diligently
managing both pre-class certification discovery as well as
discovery following the Court’s Decision and Order dated January
21, 2022 (the “Class Certification Order”), in which the Court
granted plaintiffs’ motion for class certification.1
1 The Class Certification Order provided, inter alia, that this
action may be maintained as a class action on behalf of all home
buyers and sellers of residential real estate in Westchester, Putnam,
and Dutchess counties from January 1, 2011 to July 14, 2018 in which
defendant represented both buyer and seller in the same transaction.
2
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As relevant hereto, the Discovery Referee in the 17th
Report resolved various discovery disputes in connection with
post-class certification discovery, including, inter alia,
defendant’s motion for a protective order “concerning what it
perceived to be plaintiffs’ request for 200 document
custodians.” See Donnellan Aff., Ex. A at pp. 2-5. In
particular, the 17th Report noted that although the parties
thereafter agreed “that plaintiffs are entitled to designate 10
document custodians,” defendant asserted that five prior
document custodians “designated by plaintiffs for pre-class
certification discovery purposes . . . should count toward
plaintiffs’ allotment” of ten discovery custodians. See id. at
pp. 2-3. The Discovery Referee in the 17th Report considered
the parties’ respective arguments concerning the number of
document custodians and the identity thereof, and ultimately
credited class action plaintiffs’ assertion that the five
document custodians that had been designated for pre-class
certification discovery would not count toward plaintiffs’
allotment of 10 post-certification discovery custodians. See
id. at pp. 3-5. The 17th Report then identified the 10 post-
certification discovery custodians, stating that this group
“provide[s] plaintiffs with an institutionally diverse
population of [defendant’s] witnesses to secure appropriate and
3
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proportional merits-based document production,” and noted that
“[t]his scenario addresses each of the competing arguments
advanced by the parties.” See id. at pp. 4-5.
Following the issuance of the 17th Report, class action
plaintiffs moved herein pursuant to CPLR § 4403 and Section
202.44 of the Uniform Rules for Trial Courts for an Order
confirming the 17th Report. Defendant opposed the motion and
cross-moved pursuant to CPLR § 4403 and Section 202.44 of the
Uniform Rules for Trial Courts for an Order rejecting that
portion of the 17th Report relating to the designation of
discovery custodians. Specifically, defendant asserts that the
17th Report is not supported by the Record and should be
rejected to the extent that the parties agreed that only ten
document custodians were necessary, and the 17th Report
erroneously excluded from that universe of ten custodians the
group of document custodians that had been agreed-upon for pre-
class certification discovery.
Class action plaintiffs oppose the cross-motion, asserting
that the 17th Report is amply and substantially supported by the
Record and should be confirmed in its entirety. In particular,
class action plaintiffs contend that the Discovery Referee
considered the parties’ voluminous submissions, weighed the
competing interests at stake herein, and issued a highly
4
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discretionary and fact-intensive ruling that is entitled to
deference. Class action plaintiffs argue that defendant has not
cited any statute, court rule, or case law compelling this Court
to overrule the Discovery Referee’s determination, and the mere
fact that defendant disagrees with such ruling is not an
adequate basis for this Court to reject any portion of the 17th
Report.
ANALYSIS
CPLR § 4403 provides in relevant part: “[u]pon the motion
of any party or on his own initiative, the judge required to
decide the issue may confirm or reject, in whole or in part, the
verdict of an advisory jury or the report of a referee to
report; may make new findings with or without taking additional
testimony; and may order a new trial or hearing.”2
It is well-settled that “[w]here a referee’s findings are
supported by the record, the court should confirm the referee’s
report and adopt the recommendation made therein.” Chambliss v
University Group Med. Assoc., 155 AD3d 996, 997 (2d Dept 2017),
quoting Shen v Shen, 21 AD3d 1078, 1079 (2d Dept 2005). Indeed,
2 Section 202.44 of the Uniform Rules for Trial Courts, on which
the parties’ respective motions are also based, provides in relevant
part that “[w]hen a judicial hearing officer or referee appointed to
hear and report has duly filed his or her report . . . and has duly
given notice to each party of the filing of the report, the plaintiff
shall move on notice to confirm or reject all or part of the report
within 15 days after notice of such filing was given.” See 22 NYCRR §
202.44(a).
5
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“[t]he report of a referee should be confirmed whenever the
findings are substantially supported by the record, and the
referee has clearly defined the issues and resolved matters of
credibility.” HSBC Bank USA, N.A. v Blair-Walker, 202 AD3d
1065, 1068 (2d Dept 2022), citing U.S. Bank N.A. v Morton, 196
AD3d 715, 717 (2d Dept 2021). “Generally, New York courts will
look with favor upon a Referee’s report, inasmuch as the
Referee, as trier of fact, is considered to be in the best
position to determine the issues presented.” European Am. Bank
& Trust Co. v H. Frenkel, Ltd., 163 AD2d 154, 155 (1st Dept
1990). Thus, the Court of Appeals has made clear that the
“broad discretion” afforded to trial courts regarding the
supervision of disclosure “extends to its decision to confirm a
referee’s report, so long as the report is supported by the
record.” Those Certain Underwriters at Lloyds, London v
Occidental Gems, Inc., 11 NY3d 843, 845 (2008).
Here, the 17th Report is substantially supported by the
Record. Indeed, the Discovery Referee reviewed the parties’
voluminous submissions, heard argument from counsel, and drew
reasonable factual and legal conclusions in accordance with both
the Record and with relevant law. Although the Court
acknowledges that defendant disagrees with the Discovery
Referee’s ruling in excluding from the list of ten discovery
6
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custodians those custodians who had previously been designated
for pre-class certification discovery, nothing cited in
defendant’s submissions demonstrates – or even suggests – that
the 17th Report is not supported by the Record.
As noted in class action plaintiffs’ submissions, the
Discovery Referee further explained and affirmed the relevant
ruling from the 17th Report in the Eighteenth Report and
Recommendation dated July 13, 2022 (the “18th Report”), which
stated in relevant part:
The 17th Report and Recommendation granted
plaintiffs the right to designate 10 merits
discovery document custodians. HLI argued
that plaintiffs should be required to again
designate its three of five Pre-Class
Certification document custodians as merits
discovery document custodians or be required
to “claw back” and forfeit the use at trial
of the Pre-Class Certification documents
previously produced from these custodians.
The 17th Report and Recommendation rejected
this rather novel argument and requested HLI
provide any legal authority to support same.
HLI failed to do so. Instead, HLI argues
that “it makes no sense” to allow plaintiffs
what, in effect, are 15 document custodians.
HLI’s argument is without merit. HLI’s
argument would effectively reduce without
justification the number of plaintiffs’
merits discovery document custodians from 10
to 7. Mandating the designation of these
same individuals for merits-based discovery
under the threat of a document claw back is
not supported by the applicable law or
facts.
7
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Plaintiffs are entitled to designate 10
merits-based discovery document custodians
from the roster of individuals identified in
the 17th Report and Recommendation.
See NYSCEF Doc. No. 1412 at p. 3.3
As stated in the 18th Report, the Record underlying the
17th Report reflects that defendant has not cited any authority
to support the “rather novel argument” that the document
custodians utilized for pre-class certification discovery must
count toward the ten document custodians to which class action
plaintiffs are entitled to use for post-class certification
discovery. Given that “the Referee, as trier of fact, is
considered to be in the best position to determine the issues
presented,” and in reviewing both the 17th Report and the Record
including the parties’ respective submissions, the 17th Report
is substantially supported by the Record and is therefore
confirmed in its totality. See Namer v 152-54-56 West 15th
Street Realty Corp., 108 AD2d 705, 706 (1st Dept 1985)
(confirming a referee’s report “in its totality” and noting that
such referee was “in the best position to determine the issues
presented”). See also Saks v Saks, 199 AD3d 948, 949-950 (2d
Dept 2021) (holding that the referee’s report was properly
confirmed where “the record substantially supports the referee’s
3 The Court notes that class action plaintiffs have separately
moved to confirm the 18th Report, which motion is currently returnable
on August 5, 2022.
8
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recommendation” therein); Courtview Owners Corp. v Courtview
Holding, 193 AD3d 1032, 1033 (2d Dept 2021) (affirming the
Supreme Court’s confirmation of a referee’s report and denial of
a cross-motion to reject portions thereof where the referee’s
findings were “substantially supported by the record”).
Therefore, for the reasons stated above, class action
plaintiffs’ motion to confirm the 17th Report is granted in its
entirety, the 17th Report is confirmed, and defendant’s cross-
motion to reject portions thereof is denied.4
The foregoing constitutes the decision and order of the
Court.
Dated: White Plains, New York
July 27, 2022
HON. LINDA S. JAMIESON
Justice of the Supreme Court
To: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Attorneys for Class Action Plaintiffs
666 Third Avenue
New York, New York 10017
Boise Schiller Flexner LLP
Attorneys for Class Action Plaintiffs
333 Main Street
Armonk, New York 10504
4 All other arguments raised on this motion and all materials
submitted by the parties in connection therewith have been considered
by this Court, notwithstanding the specific absence of reference
thereto.
9
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Delbello Donnellan Weingarten Wise & Wiederkehr LLP
Attorneys for Defendant
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
10
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Preview
FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 To commence the statutory time period RECEIVED forappeals NYSCEF: as09/08/2022 of right (CPLR § 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON ——————————————————————————————————————X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and all others similarly situated, Index No. 60767/2018 Plaintiffs, DECISION AND ORDER -against- HOULIHAN/LAWRENCE INC. Defendant. ——————————————————————————————————————X The following papers numbered 1 to 6 were read on the motion (seq. no. 12) by class action plaintiffs pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts for an Order confirming the Seventeenth Report and Recommendation dated June 30, 2022 (the “17th Report”) as entered by the Discovery Referee William P. Harrington, Esq. (the “Discovery Referee”), and on the related cross-motion of defendant Houlihan/Lawrence Inc. (“defendant”) pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts for an Order rejecting that portion of the 17th Report relating to the designation of discovery custodians: Papers Numbered Notice of Motion, Declaration and Exhibits 1 1 1 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 Memorandum of Law in Support 2 Notice of Cross-Motion, Affirmation and Exhibits 3 Memorandum of Law in Opposition/Support of Cross-Motion 4 Reply Declaration and Exhibits 5 Memorandum of Law in Reply/Opposition to Cross-Motion 6 BACKGROUND This class action lawsuit arises out of allegations that defendant acted as an undisclosed, non-consensual dual agent in representing both buyers and sellers in approximately 10,000 residential real estate sales transactions throughout the Hudson Valley. Due to the highly litigious nature of this action, the Court in May 2019 appointed the Discovery Referee to oversee and manage the multitude of issues that have arisen in connection with discovery in this three-year-old lawsuit. As such, the Discovery Referee has served an invaluable role in diligently managing both pre-class certification discovery as well as discovery following the Court’s Decision and Order dated January 21, 2022 (the “Class Certification Order”), in which the Court granted plaintiffs’ motion for class certification.1 1 The Class Certification Order provided, inter alia, that this action may be maintained as a class action on behalf of all home buyers and sellers of residential real estate in Westchester, Putnam, and Dutchess counties from January 1, 2011 to July 14, 2018 in which defendant represented both buyer and seller in the same transaction. 2 2 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 As relevant hereto, the Discovery Referee in the 17th Report resolved various discovery disputes in connection with post-class certification discovery, including, inter alia, defendant’s motion for a protective order “concerning what it perceived to be plaintiffs’ request for 200 document custodians.” See Donnellan Aff., Ex. A at pp. 2-5. In particular, the 17th Report noted that although the parties thereafter agreed “that plaintiffs are entitled to designate 10 document custodians,” defendant asserted that five prior document custodians “designated by plaintiffs for pre-class certification discovery purposes . . . should count toward plaintiffs’ allotment” of ten discovery custodians. See id. at pp. 2-3. The Discovery Referee in the 17th Report considered the parties’ respective arguments concerning the number of document custodians and the identity thereof, and ultimately credited class action plaintiffs’ assertion that the five document custodians that had been designated for pre-class certification discovery would not count toward plaintiffs’ allotment of 10 post-certification discovery custodians. See id. at pp. 3-5. The 17th Report then identified the 10 post- certification discovery custodians, stating that this group “provide[s] plaintiffs with an institutionally diverse population of [defendant’s] witnesses to secure appropriate and 3 3 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 proportional merits-based document production,” and noted that “[t]his scenario addresses each of the competing arguments advanced by the parties.” See id. at pp. 4-5. Following the issuance of the 17th Report, class action plaintiffs moved herein pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts for an Order confirming the 17th Report. Defendant opposed the motion and cross-moved pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts for an Order rejecting that portion of the 17th Report relating to the designation of discovery custodians. Specifically, defendant asserts that the 17th Report is not supported by the Record and should be rejected to the extent that the parties agreed that only ten document custodians were necessary, and the 17th Report erroneously excluded from that universe of ten custodians the group of document custodians that had been agreed-upon for pre- class certification discovery. Class action plaintiffs oppose the cross-motion, asserting that the 17th Report is amply and substantially supported by the Record and should be confirmed in its entirety. In particular, class action plaintiffs contend that the Discovery Referee considered the parties’ voluminous submissions, weighed the competing interests at stake herein, and issued a highly 4 4 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 discretionary and fact-intensive ruling that is entitled to deference. Class action plaintiffs argue that defendant has not cited any statute, court rule, or case law compelling this Court to overrule the Discovery Referee’s determination, and the mere fact that defendant disagrees with such ruling is not an adequate basis for this Court to reject any portion of the 17th Report. ANALYSIS CPLR § 4403 provides in relevant part: “[u]pon the motion of any party or on his own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing.”2 It is well-settled that “[w]here a referee’s findings are supported by the record, the court should confirm the referee’s report and adopt the recommendation made therein.” Chambliss v University Group Med. Assoc., 155 AD3d 996, 997 (2d Dept 2017), quoting Shen v Shen, 21 AD3d 1078, 1079 (2d Dept 2005). Indeed, 2 Section 202.44 of the Uniform Rules for Trial Courts, on which the parties’ respective motions are also based, provides in relevant part that “[w]hen a judicial hearing officer or referee appointed to hear and report has duly filed his or her report . . . and has duly given notice to each party of the filing of the report, the plaintiff shall move on notice to confirm or reject all or part of the report within 15 days after notice of such filing was given.” See 22 NYCRR § 202.44(a). 5 5 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 “[t]he report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility.” HSBC Bank USA, N.A. v Blair-Walker, 202 AD3d 1065, 1068 (2d Dept 2022), citing U.S. Bank N.A. v Morton, 196 AD3d 715, 717 (2d Dept 2021). “Generally, New York courts will look with favor upon a Referee’s report, inasmuch as the Referee, as trier of fact, is considered to be in the best position to determine the issues presented.” European Am. Bank & Trust Co. v H. Frenkel, Ltd., 163 AD2d 154, 155 (1st Dept 1990). Thus, the Court of Appeals has made clear that the “broad discretion” afforded to trial courts regarding the supervision of disclosure “extends to its decision to confirm a referee’s report, so long as the report is supported by the record.” Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 (2008). Here, the 17th Report is substantially supported by the Record. Indeed, the Discovery Referee reviewed the parties’ voluminous submissions, heard argument from counsel, and drew reasonable factual and legal conclusions in accordance with both the Record and with relevant law. Although the Court acknowledges that defendant disagrees with the Discovery Referee’s ruling in excluding from the list of ten discovery 6 6 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 custodians those custodians who had previously been designated for pre-class certification discovery, nothing cited in defendant’s submissions demonstrates – or even suggests – that the 17th Report is not supported by the Record. As noted in class action plaintiffs’ submissions, the Discovery Referee further explained and affirmed the relevant ruling from the 17th Report in the Eighteenth Report and Recommendation dated July 13, 2022 (the “18th Report”), which stated in relevant part: The 17th Report and Recommendation granted plaintiffs the right to designate 10 merits discovery document custodians. HLI argued that plaintiffs should be required to again designate its three of five Pre-Class Certification document custodians as merits discovery document custodians or be required to “claw back” and forfeit the use at trial of the Pre-Class Certification documents previously produced from these custodians. The 17th Report and Recommendation rejected this rather novel argument and requested HLI provide any legal authority to support same. HLI failed to do so. Instead, HLI argues that “it makes no sense” to allow plaintiffs what, in effect, are 15 document custodians. HLI’s argument is without merit. HLI’s argument would effectively reduce without justification the number of plaintiffs’ merits discovery document custodians from 10 to 7. Mandating the designation of these same individuals for merits-based discovery under the threat of a document claw back is not supported by the applicable law or facts. 7 7 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 Plaintiffs are entitled to designate 10 merits-based discovery document custodians from the roster of individuals identified in the 17th Report and Recommendation. See NYSCEF Doc. No. 1412 at p. 3.3 As stated in the 18th Report, the Record underlying the 17th Report reflects that defendant has not cited any authority to support the “rather novel argument” that the document custodians utilized for pre-class certification discovery must count toward the ten document custodians to which class action plaintiffs are entitled to use for post-class certification discovery. Given that “the Referee, as trier of fact, is considered to be in the best position to determine the issues presented,” and in reviewing both the 17th Report and the Record including the parties’ respective submissions, the 17th Report is substantially supported by the Record and is therefore confirmed in its totality. See Namer v 152-54-56 West 15th Street Realty Corp., 108 AD2d 705, 706 (1st Dept 1985) (confirming a referee’s report “in its totality” and noting that such referee was “in the best position to determine the issues presented”). See also Saks v Saks, 199 AD3d 948, 949-950 (2d Dept 2021) (holding that the referee’s report was properly confirmed where “the record substantially supports the referee’s 3 The Court notes that class action plaintiffs have separately moved to confirm the 18th Report, which motion is currently returnable on August 5, 2022. 8 8 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 recommendation” therein); Courtview Owners Corp. v Courtview Holding, 193 AD3d 1032, 1033 (2d Dept 2021) (affirming the Supreme Court’s confirmation of a referee’s report and denial of a cross-motion to reject portions thereof where the referee’s findings were “substantially supported by the record”). Therefore, for the reasons stated above, class action plaintiffs’ motion to confirm the 17th Report is granted in its entirety, the 17th Report is confirmed, and defendant’s cross- motion to reject portions thereof is denied.4 The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York July 27, 2022 HON. LINDA S. JAMIESON Justice of the Supreme Court To: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Attorneys for Class Action Plaintiffs 666 Third Avenue New York, New York 10017 Boise Schiller Flexner LLP Attorneys for Class Action Plaintiffs 333 Main Street Armonk, New York 10504 4 All other arguments raised on this motion and all materials submitted by the parties in connection therewith have been considered by this Court, notwithstanding the specific absence of reference thereto. 9 9 of 10 FILED: WESTCHESTER COUNTY CLERK 09/08/2022 02:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1460 RECEIVED NYSCEF: 09/08/2022 Delbello Donnellan Weingarten Wise & Wiederkehr LLP Attorneys for Defendant One North Lexington Avenue, 11th Floor White Plains, New York 10601 10 10 of 10