Preview
FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1498 To commence the statutory time period
RECEIVED forappeals
NYSCEF: as12/20/2022
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 two
motions presently before the Court. The first is filed by by
class action plaintiffs pursuant to CPLR § 4403 and Section
202.44 of the Uniform Rules for Trial Courts. It seeks to
confirm the Twentieth and Twenty-First Reports and
Recommendations entered by the Discovery Referee William P.
Harrington, Esq. (the “Discovery Referee”). The second motion,
filed by defendant, seeks to have the Court reject these two
Reports:
Papers Numbered
Notice of Motion, Affirmation and Exhibits 1
Memorandum of Law 2
Notice of Cross-Motion, Affirmation and Exhibits 3
1
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Memorandum of Law in Opposition and in Support of
Cross-Motion 4
Affirmation and Exhibits in Opposition and in Reply 5
Memorandum of Law in Opposition and in Reply 6
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.
In November 2022, the Discovery Referee issued two Reports
addressing discovery issues. He issued the second report, the
21st, in order to answer certain questions raised by plaintiffs
(in an email that was sent to the Discovery Referee and all
counsel) about the 20th Report. After waiting two days and not
receiving any response from defendant’s counsel, the Discovery
Referee issued his second, clarifying Report.
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
2
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report; may make new findings with or without taking additional
testimony; and may order a new trial or hearing.”1
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,
“[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
1 Section 202.44 of the Uniform Rules for Trial Courts, on which
the class action plaintiffs’ motions is 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).
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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).
In this action, there are no matters of credibility for the
Discovery Referee to resolve. A review of the two Reports and
the two motions shows that there is no dispute that the
Discovery Referee has clearly defined the issues. The dispute
arises over whether or not his findings are “substantially
supported by the record.”
The Court finds that all of the Discovery Referee’s
findings are indeed substantially supported by the extremely
long and detailed record before him in this matter. He is
intimately familiar with the parties, their claims, their
positions and their counsel. The Discovery Referee has handled
“virtually every conceivable discovery issue.”
With respect to defendant’s complaints about the Discovery
Referee rejecting its request to use technology-assisted review
(“TAR”), the Court observes that in its motion, defendant
entirely ignores the two most important points raised by the
Discovery Referee in his Report: considerations of timing and
cooperation. Specifically, the Discovery Referee stated that
“with respect to TAR, [the Commercial Division Rule] directs the
4
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parties to confer at the outset of discovery and as needed
throughout the discovery period. Similarly, the ESI Guidelines
also direct discussion of ESI related issues prior to the entry
of a Preliminary Conference Order, including the use of TAR.”
There is no dispute that for “four years” defendant chose “not
to do so.” It is now too late given the notable delays that
have already occurred. Moreover, and not insignificantly, given
that “TAR protocol requires transparency and cooperation between
opposing counsel to achieve the benefits of a cost effective,
dispute-free timely ESI production process,” this case is
particularly not suited to it given the “unique and unfortunate
discovery dysfunction” present in this matter.
On the subject of delay, the Discovery Referee noted in the
20th Report that “These past disputes, which have included
multiple ESI issues, have resulted in substantial delay and
expense.” The Court will not tolerate more delay.
On that note, the Court addresses the timing issues raised
by defendant. First, these motions were not premature; the
Court does not require – or wish to have – pre-motion
conferences for motions to confirm or reject the Discovery
Referee’s Reports. Those motions are required by the CPLR, and
pre-motion conferences would only engender more delay. That
being said, the Court does credit defendant’s complaint that the
5
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deadlines ordered by the Discovery Referee “purport[] to
terminate Houlihan Lawrence’s right to judicial review.” In
future, the Court finds that deadlines set forth in the
Discovery Referee’s Reports should run from the date that the
Court decides the motions to confirm or reject the Discovery
Referee’s Reports. Those deadlines should be very tight,
however; since the parties can delay the filing of their
motions, they can drag out the process. To expedite matters,
all future motions to confirm or reject Reports issued by the
Discovery Referee should include a proposed Order.
With respect to the deadlines set forth in the 20th and 21st
Reports, in recognition of the approaching holidays, all
deadlines shall be extended until January 9, 2023.
Accordingly, the 20th and 21st Reports are confirmed
pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules
for Trial Courts.
The foregoing constitutes the decision and order of the
Court.
Dated: White Plains, New York
December 20, 2022
HON. LINDA S. JAMIESON
Justice of the Supreme Court
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NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022
To: Mintz, Levin et al.
Attorneys for Class Action Plaintiffs
666 Third Avenue
New York, New York 10017
Boise Schiller et al.
Attorneys for Class Action Plaintiffs
333 Main Street
Armonk, New York 10504
Delbello Donnellan et al.
Attorneys for Defendant
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
7
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Preview
FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 To commence the statutory time period RECEIVED forappeals NYSCEF: as12/20/2022 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 two motions presently before the Court. The first is filed by by class action plaintiffs pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts. It seeks to confirm the Twentieth and Twenty-First Reports and Recommendations entered by the Discovery Referee William P. Harrington, Esq. (the “Discovery Referee”). The second motion, filed by defendant, seeks to have the Court reject these two Reports: Papers Numbered Notice of Motion, Affirmation and Exhibits 1 Memorandum of Law 2 Notice of Cross-Motion, Affirmation and Exhibits 3 1 1 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 Memorandum of Law in Opposition and in Support of Cross-Motion 4 Affirmation and Exhibits in Opposition and in Reply 5 Memorandum of Law in Opposition and in Reply 6 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. In November 2022, the Discovery Referee issued two Reports addressing discovery issues. He issued the second report, the 21st, in order to answer certain questions raised by plaintiffs (in an email that was sent to the Discovery Referee and all counsel) about the 20th Report. After waiting two days and not receiving any response from defendant’s counsel, the Discovery Referee issued his second, clarifying Report. 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 2 2 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 report; may make new findings with or without taking additional testimony; and may order a new trial or hearing.”1 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, “[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 1 Section 202.44 of the Uniform Rules for Trial Courts, on which the class action plaintiffs’ motions is 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). 3 3 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 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). In this action, there are no matters of credibility for the Discovery Referee to resolve. A review of the two Reports and the two motions shows that there is no dispute that the Discovery Referee has clearly defined the issues. The dispute arises over whether or not his findings are “substantially supported by the record.” The Court finds that all of the Discovery Referee’s findings are indeed substantially supported by the extremely long and detailed record before him in this matter. He is intimately familiar with the parties, their claims, their positions and their counsel. The Discovery Referee has handled “virtually every conceivable discovery issue.” With respect to defendant’s complaints about the Discovery Referee rejecting its request to use technology-assisted review (“TAR”), the Court observes that in its motion, defendant entirely ignores the two most important points raised by the Discovery Referee in his Report: considerations of timing and cooperation. Specifically, the Discovery Referee stated that “with respect to TAR, [the Commercial Division Rule] directs the 4 4 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 parties to confer at the outset of discovery and as needed throughout the discovery period. Similarly, the ESI Guidelines also direct discussion of ESI related issues prior to the entry of a Preliminary Conference Order, including the use of TAR.” There is no dispute that for “four years” defendant chose “not to do so.” It is now too late given the notable delays that have already occurred. Moreover, and not insignificantly, given that “TAR protocol requires transparency and cooperation between opposing counsel to achieve the benefits of a cost effective, dispute-free timely ESI production process,” this case is particularly not suited to it given the “unique and unfortunate discovery dysfunction” present in this matter. On the subject of delay, the Discovery Referee noted in the 20th Report that “These past disputes, which have included multiple ESI issues, have resulted in substantial delay and expense.” The Court will not tolerate more delay. On that note, the Court addresses the timing issues raised by defendant. First, these motions were not premature; the Court does not require – or wish to have – pre-motion conferences for motions to confirm or reject the Discovery Referee’s Reports. Those motions are required by the CPLR, and pre-motion conferences would only engender more delay. That being said, the Court does credit defendant’s complaint that the 5 5 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 deadlines ordered by the Discovery Referee “purport[] to terminate Houlihan Lawrence’s right to judicial review.” In future, the Court finds that deadlines set forth in the Discovery Referee’s Reports should run from the date that the Court decides the motions to confirm or reject the Discovery Referee’s Reports. Those deadlines should be very tight, however; since the parties can delay the filing of their motions, they can drag out the process. To expedite matters, all future motions to confirm or reject Reports issued by the Discovery Referee should include a proposed Order. With respect to the deadlines set forth in the 20th and 21st Reports, in recognition of the approaching holidays, all deadlines shall be extended until January 9, 2023. Accordingly, the 20th and 21st Reports are confirmed pursuant to CPLR § 4403 and Section 202.44 of the Uniform Rules for Trial Courts. The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York December 20, 2022 HON. LINDA S. JAMIESON Justice of the Supreme Court 6 6 of 7 FILED: WESTCHESTER COUNTY CLERK 12/20/2022 02:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1498 RECEIVED NYSCEF: 12/20/2022 To: Mintz, Levin et al. Attorneys for Class Action Plaintiffs 666 Third Avenue New York, New York 10017 Boise Schiller et al. Attorneys for Class Action Plaintiffs 333 Main Street Armonk, New York 10504 Delbello Donnellan et al. Attorneys for Defendant One North Lexington Avenue, 11th Floor White Plains, New York 10601 7 7 of 7