Preview
FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___________________________________________________Ç
JOSEPH HERTZ,
Plaintiff, Index No.: 526061/2019
-against-
SAMUEL HERTZ, Individually, and as the Nominated
Executor of the Purported Last Will & Testament of
Mira Hertz, dated November 26, 2008, and as Trustee
of the Purported Mira Hertz Revocable Trust Agreement,
dated November 26, 2008, and as Trustee of the
Purported Mira Hertz Family Trust Agreement, dated
November 26, 2008,
Defendant.
_________________________________________________Ç
NON-PARTIES'
RIVKIN MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF'S MOTION FOR CONTEMPT
RIVKIN RADLER LLP
Attorneys for Non-Parties
Rivkin Radler LLP, Scott Eisenmesser,
Yaron Kornblum and Walter Gumersell
926 RXR Plaza
Uniondale, New York 11556
(516) 357-3000
On the brief:
David S. Wilck, Esq.
Carol A. Lastorino, Esq.
March 13, 2023
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TABLEOFCONTENTS
Page
TABLE OF AUTHORITIES..............................................................................................................ii
PRELIMINARY STATEMENT........................................................................................................1
RELEVANT FACTS..........................................................................................................................4
ARGUMENT......................................................................................................................................4
POINT I
THE CONTEMPT MOTION IS PROCEDURALLY DEFECTIVE AS PLAINTIFF .
CONFER"
HAS FAILED TO CONDUCT THE REQUISITE "MEET AND WITH THE
RIVKIN NON-PARTIES WHICH WOULD HAVE OBVIATED THIS MOTION....................4
POINT II
THE RIVKIN NON-PARTIES DID NOT REFUSE OR WILLFULLY NEGLECT TO
OBEY THE SUBPOENAS DUCES TECUM...............................................................................7
POINT III
THE RIVKIN NON-PARTIES DID NOT DISOBEY ANY LAWFUL MANDATE OF
THE COURT..................................................................................................................................9
A. The Rivkin Non-Parties Did Not Disobey the May 11, 2022 Order................................10
B. The Rivkin Non-Parties Did Not Disobey the July 13, 2022 Order Either......................13
C. Plaintiff's Rights Have Not Been Prejudiced By The Rivkin Non-Parties ...................... 14
POINT IV
ATTORNEYS'
PLAINTIFF IS NOT ENTITLED TO RECEIVE FEES AND COSTS.............15
CONCLUSION.................................................................................................................................16
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TABLE OF AUTHORITIES
Page(s)
Cases
Benson Park Assocs. LLC v. Herman,
93 A.D.3d 609, 941 N.Y.S.2d 108 (1st Dep't 2012).................................................................7
Matter of Binong Xu v. Sullivan,
155 A.D.3d 1031, 65 N.Y.S.3d 204 (2d Dep't 2017)................................................................9
Department of Env't Prot. of the City of N.Y. v. Dep't of Env't Conservation of the
State of N.Y,
70 N.Y.2d 233, 519 N.Y.S.2d 539 (1987)...............................................................................11
El-Dehdan v. El-Dehdan,
26 N.Y.3d 19, 19 N.Y.S.3d 475 (2015).....................................................................................9
Heffer v. Krebs,
196 A.D.3d 684, 152 N.Y.S.3d 467 (2d Dep't 2021)..............................................................15
Hoglund v. Hoglund,
234 A.D.2d 794, 651 N.Y.S.2d 239 (3d Dep't 1996)..............................................................12
Lopez v. New York City Transit Auth.,
85 A.D.3d 543, 925 N.Y.S.2d 84 (1st Dep't 2011)...................................................................7
Mayorga v. Tate,
302 A.D.2d 11, 752 N.Y.S.2d 353 (2d Dep't 2002)................................................................12
Muchnik v. Mendez Trucking, Inc.,
2023 N.Y. App. Div. LEXIS 73 (2d Dep't Jan. 11, 2023) ........................................................5
Natoli v. Milazzo,
65 A.D.3d 1309, 886 N.Y.S.2d 205 (2d Dep't 2009)................................................................5
Pfeffer v. Board of Educ. of the City of N.Y,
1982 N.Y. App. Div. LEXIS 15865 (2d Dep't Mar. 8, 1982).................................................11
Quick v. ABS Really Corp.,
13 A.D.3d 1021, 787 N.Y.S.2d 455 (3d Dep't 2004)..............................................................11
Rienzi v. Rienzi,
23 A.D.3d 447, 808 N.Y.S.2d 113 (2d Dep't 2005)................................................................12
Matter of Rosenberg v. New York State Off of Parks, Recreation, & Hist. Pres.,
132 A.D.3d 684, 17 N.Y.S.3d 479 (2d Dep't 2015)................................................................15
ii
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Swidler & Berlin v. U.S.,
24 U5.S. 399 (1998).................................................................................................................12
Troiano v. Ilaria,
205 A.D.2d 752, 614 N.Y.S.2d 916 (2d Dep't 1994)..............................................................14
Winter v. ESRT Empire State Bldg., LLC,
201 A.D.3d 842, 161 N.Y.S.3d 314 (2d Dep't 2022)................................................................5
Other Authorities
CPLR 3122(d)............................................................................................................................3, 10
CPLR § 5251....................................................................................................................................7
Judiciary Law § 753.................................................................................................................1, 7, 9
Judiciary Law § 773...................................................................................................................4, 15
22 NYCRR § 202.7......................................................................................................................4, 5
22 NYCRR § 202.20........................................................................................................................5
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PRELIMINARY STATEMENT
This Memorandum of Law and the accompanying Affirmation of David S. Wilck, Esq., are
submitted on behalf of the non-party law firm, Rivkin Radler LLP, in addition to three non-party
attorneys with the law firm, Scott Eisenmesser, Yaron Kornblum and Walter Gumersell
(collectively, the "Rivkin Non-Parties") in opposition to Plaintiff's motion for contempt pursuant
to Judiciary Law §§ 753 and 773.
Background
This action is for a trust contest where Plaintiff seeks to invalidate two trust instruments
that were created in 2008 by his mother, Mira Hertz, who is now deceased (the "Decedent").
Rivkin Radler LLP represents Defendant, Samuel Hertz, in this action. The Rivkin Non-Parties
were served with Subpoenas Duces Tecum which seek documents concerning the drafting and
execution of the trust instruments and documents regarding unrelated matters. Nearly all of the
requests in the Subpoenas seek the same array of broad categories of documents that were
demanded from Defendant in three separate document demands, to which responsive documents
have been produced both before and after the Subpoenas were served. To this day, Plaintiff has
never once identified a single document requested in the Subpoenas that is necessary to prosecute
this action that he is not already in possession of from Defendant. Instead, Plaintiff resorts to
frivolous motion practice.
Summary of Arguments
Plaintiff's contempt motion is procedurally defective. It is bereft of the good faith
affirmation that must accompany such a motion as Plaintiff's counsel never met and conferred with
counsel for the Rivkin Non-Parties concerning the alleged disputes as required under the Court
Rules. In fact, had Plaintiff bothered to meet and confer with the Rivkin Non-Parties, the instant
contempt motion would have been obviated. As explained herein, the Rivkin Non-Parties and
Defendant appealed the Court's Order which erroneously held, among other things, that the
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Decedent no longer has an attorney-client relationship with Rivkin Radler LLP and, therefore, the
attorney-client privilege does not stand. The Rivkin Non-Parties and Defendant sought a stay of
enforcement of the Order pending appeal. The Appellate Division, Second Department recently
denied the stay application on January 30, 2023.
Thereafter, a practical decision was made to withdraw the appeal because it would have
taken a substantially period of time for the appeal to be decided. As a result, the Rivkin Non-
long
Parties were in the process of identifying and gathering the documents to produce to Plaintiff when
the contempt motion was made. On March 13, 2023, the Rivkin Non-Parties produced all
documents specific to the requests made to the Rivkin Non-Parties that are not duplicative of the
requests made to Defendant as well as additional documents that were not produced by Defendant.
Defendant also made a supplemental document production to Plaintiff on March 13, 2023 which
contains documents that are responsive to the Subpoenas. Thus, the instant contempt motion has
been rendered moot.
Plaintiff's contempt motion is also substantively meritless. Plaintiff's contention that the
document"
Rivkin Non-Parties "never produced a single in response to the Subpoenas is not only
meritless, it is misleading. The Rivkin Non-Parties have consistently made clear to Plaintiff that he
is in possession of responsive documents to the requests in the Subpoenas because they are
duplicative to the requests in the document demands served on Defendant, who is in fact
represented by Rivkin Radler LLP as noted above. Plaintiff's exaltation of form over substance, to
harass counsel for Defendant, is simply inadequate to establish that the Rivkin Non-Parties refused
or willfully neglected to obey the Subpoenas to warrant the drastic relief of contempt.
The Rivkin Non-Parties did not disobey any lawful mandate of the Court either. Plaintiff
has not satisfied his burden of demonstrating with clear and convincing evidence that the.subject
Orders clearly expressed an unequivocal mandate as to the Rivkin Non-Parties, disobedience of the
Orders and resulting prejudice to Plaintiff. The law is well-settled that when an order contains
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ambiguous, vague or indefinite language, a finding of civil contempt is not tenable. A party cannot
be found liable for adopting a common sense logical interpretation of an order. That is precisely
what occurred here.
The May 11, 2022 Order did not clearly express an unequivocal mandate as to the Rivkin
Non-Parties. The May 11, 2022 Order decided Plaintiff's motion to compel against Defendant and
the Rivkin Non-Parties in one set of motion papers. The motion to compel against the Rivkin Non-
Parties was very limited in scope and sought only two advance rulings from the Court (i.e., that
attorneys'
Plaintiff did not have to pay the Rivkin Non-Parties fees under CPLR 3122(d) and that
"all"
the Rivkin Non-Parties are not permitted to object to use of the term in any of the document
requests). Plaintiff did not seek the production of any documents from the Rivkin Non-Parties in
his motion to compel or seek any other ruling. When the May 11, 2022 Order granted Plaintiff's
motion to compel, the only logical reading of that Order is that the Court only granted the relief as
to the issues before it with respect to the Rivkin Non-Parties.
The July 13, 2022 Order did not clearly express an unequivocal mandate as to the Rivkin
Non-Parties either. That Order decided the Rivkin Non-Parties and Defendant's motion for leave
to reargue the May 11, 2022 Order. The July 13, 2022 Order granted leave to the extent that
"Rivkin Radler LLP shall produce a privilege log and submit subject documents for in camera
inspection."
The July 13, 2022 Order is vague and ambiguous when it refers to "Rivkin Radler
LLP"
because it does not specify if it is referring to Rivkin Radler, LLP as counsel for Defendant
or the Rivkin Non-Parties. The only logical interpretation of the July 13, 2022 Order is that it
pertains to Rivkin Radler LLP as counsel for Defendant based on the relief sought in Plaintiff's
motion to compel. Only Plaintiff's motion to compel against Defendant sought the production of a
privilege log and documents. The motion to compel against the Rivkin Non-Parties did not.
Plaintiff's contempt motion must be also denied as Plaintiff has wholly failed to establish
that his rights have been prejudiced by the alleged conduct of the Rivkin Non-Parties. Plaintiff's
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conclusory allegations that he has been prejudiced with no supporting facts do not suffice,
particularly where, as here, Plaintiff has received numerous documents in response to the
Subpoenas.
Finally, since the Rivkin Non-Parties clearly did not engage in contemptuous conduct that
attorneys'
caused Plaintiff prejudice, he is not entitled to an award of fees under Judiciary Law §
773 as matter of law.
In sum, Plaintiff's contempt motion is procedurally defective and substantively meritless as
Plaintiff has failed as a matter of fact and law to demonstrate that the Rivkin Non-Parties refused or
willfully neglected to obey the Subpoena Duces Tecum or Court Orders at all, let alone with the
clear and convincing evidence required to sustain his burden of proof on this motion.
RELEVANT FACTS
The relevant facts are set forth in the accompanying Affirmation of David S. Wilck and the
exhibits annexed thereto and are incorporated by reference herein.
ARGUMENT
POINT I
THE CONTEMPT MOTION IS PROCEDURALLY DEFECTIVE AS PLAINTIFF HAS
CONFER"
FAILED TO CONDUCT THE REQUISITE "MEET AND WITH THE RIVKIN
NON-PARTIES WHICH WOULD HAVE OBVIATED THIS MOTION
Non-Parties'
As a threshold matter, the instant contempt motion based on the Rivkin
purported failure to comply with discovery is procedurally defective. Under 22 NYCRR § 202.7,
an affirmation of good faith must accompany all discovery motions. The affirmation must
"indicate the time, place and nature of the consultation and the issues discussed and any
resolutions, or shall indicate good cause why no such conferral with counsel for opposing counsel
held."
was 22 NYCRR § 202.7(c).
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Plaintiff has failed to provide any good faith affirmation whatsoever in support of his
contempt motion or indicate good cause why no such conferral with counsel was held. Plaintiff's
contempt motion is subject to dismissal on this ground alone. See Muchnik v. Mendez Trucking,
Inc., 2023 N.Y. App. Div. LEXIS 73, at *4 (2d Dep't Jan. 11, 2023) (holding that the motion to
compel and for sanctions should have been denied by the trial court as "the affirmation of good
plaintiffs'
faith submitted by the counsel in support of their motion to compel disclosure and for
other related relief failed to provide any detail of their efforts to resolve the issues"); Winter v.
ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 161 N.Y.S.3d 314 (2d Dep't 2022) (holding that
the Supreme Court properly denied discovery motion on the ground that the affirmation of good
faith did not substantively comply with the requirements of 22 NYCRR 202.7 as it did not evince a
diligent effort to resolve the discovery dispute); Natoli v. Milazzo, 65 A.D.3d 1309, 1310-11, 886
N.Y.S.2d 205, 207 (2d Dep't 2009) (holding that the trial court should have denied the cross
plaintiffs'
motion because "the affirmation of good faith submitted by the counsel was insufficient
as it did not refer to any communications between the parties that would ... resolve the discovery
dispute").
Plaintiff also failed to comply with 22 NYCRR § 202.20-f which provides that "[t]o the
maximum extent possible, discovery disputes should be resolved through informal procedures,
practice."
such as conferences, as opposed to motion 22 NYCRR § 202.20-f(a). This Court Rule
requires that each discovery motion that cannot be resolved through other than motion practice
must "be supported by an affidavit or affirmation from counsel attesting to counsel having
conducted an in-person or telephonic conference, setting forth the date and time of such
conference." 202.20-
conference, persons participating, and the length of time of the 22 NYCRR §
f(b). Plaintiff's contempt motion should be denied for failing to comply with 22 NYCRR §
202.20-f as well. See 22 NYCRR § 202.20-f(c).
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confer"
In fact, compliance with the "meet and rules is particularly compelling here because
Plaintiff has already received numerous documents from Defendant that are responsive to the
requests in the Subpoenas Duces Tecum. As explained herein, nearly all of the requests in the
Subpoenas Duces Tecum are redundant to the document demands served on the Defendant, to
which responsive documents have been produced. Plaintiff's counsel never once articulated to the
Rivkin Non-Parties that there are specific documents relevant and necessary to the prosecution of
this action that he is not already in possession of directly from Defendant. It is clear that Plaintiff
wants to bypass any attempts to meet and confer with counsel to resolve a dispute and instead rush
confer"
to making motions. Such unreasonable conduct is exactly what the "meet and rules are
designed to avoid.
Moreover, had Plaintiff's counsel complied with the Court Rules and reached out to the
Rivkin Non-Parties, the instant contempt motion would have been obviated. As explained herein,
in denying Defendant's cross-motion for a protective order, the Court erroneously held in the May
11, 2022 Order that the attorney-client privilege terminated upon the Decedent client's death. The
Rivkin Non-Parties
Preview
FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___________________________________________________Ç JOSEPH HERTZ, Plaintiff, Index No.: 526061/2019 -against- SAMUEL HERTZ, Individually, and as the Nominated Executor of the Purported Last Will & Testament of Mira Hertz, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Family Trust Agreement, dated November 26, 2008, Defendant. _________________________________________________Ç NON-PARTIES' RIVKIN MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION FOR CONTEMPT RIVKIN RADLER LLP Attorneys for Non-Parties Rivkin Radler LLP, Scott Eisenmesser, Yaron Kornblum and Walter Gumersell 926 RXR Plaza Uniondale, New York 11556 (516) 357-3000 On the brief: David S. Wilck, Esq. Carol A. Lastorino, Esq. March 13, 2023 1 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 TABLEOFCONTENTS Page TABLE OF AUTHORITIES..............................................................................................................ii PRELIMINARY STATEMENT........................................................................................................1 RELEVANT FACTS..........................................................................................................................4 ARGUMENT......................................................................................................................................4 POINT I THE CONTEMPT MOTION IS PROCEDURALLY DEFECTIVE AS PLAINTIFF . CONFER" HAS FAILED TO CONDUCT THE REQUISITE "MEET AND WITH THE RIVKIN NON-PARTIES WHICH WOULD HAVE OBVIATED THIS MOTION....................4 POINT II THE RIVKIN NON-PARTIES DID NOT REFUSE OR WILLFULLY NEGLECT TO OBEY THE SUBPOENAS DUCES TECUM...............................................................................7 POINT III THE RIVKIN NON-PARTIES DID NOT DISOBEY ANY LAWFUL MANDATE OF THE COURT..................................................................................................................................9 A. The Rivkin Non-Parties Did Not Disobey the May 11, 2022 Order................................10 B. The Rivkin Non-Parties Did Not Disobey the July 13, 2022 Order Either......................13 C. Plaintiff's Rights Have Not Been Prejudiced By The Rivkin Non-Parties ...................... 14 POINT IV ATTORNEYS' PLAINTIFF IS NOT ENTITLED TO RECEIVE FEES AND COSTS.............15 CONCLUSION.................................................................................................................................16 i 2 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 TABLE OF AUTHORITIES Page(s) Cases Benson Park Assocs. LLC v. Herman, 93 A.D.3d 609, 941 N.Y.S.2d 108 (1st Dep't 2012).................................................................7 Matter of Binong Xu v. Sullivan, 155 A.D.3d 1031, 65 N.Y.S.3d 204 (2d Dep't 2017)................................................................9 Department of Env't Prot. of the City of N.Y. v. Dep't of Env't Conservation of the State of N.Y, 70 N.Y.2d 233, 519 N.Y.S.2d 539 (1987)...............................................................................11 El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 19 N.Y.S.3d 475 (2015).....................................................................................9 Heffer v. Krebs, 196 A.D.3d 684, 152 N.Y.S.3d 467 (2d Dep't 2021)..............................................................15 Hoglund v. Hoglund, 234 A.D.2d 794, 651 N.Y.S.2d 239 (3d Dep't 1996)..............................................................12 Lopez v. New York City Transit Auth., 85 A.D.3d 543, 925 N.Y.S.2d 84 (1st Dep't 2011)...................................................................7 Mayorga v. Tate, 302 A.D.2d 11, 752 N.Y.S.2d 353 (2d Dep't 2002)................................................................12 Muchnik v. Mendez Trucking, Inc., 2023 N.Y. App. Div. LEXIS 73 (2d Dep't Jan. 11, 2023) ........................................................5 Natoli v. Milazzo, 65 A.D.3d 1309, 886 N.Y.S.2d 205 (2d Dep't 2009)................................................................5 Pfeffer v. Board of Educ. of the City of N.Y, 1982 N.Y. App. Div. LEXIS 15865 (2d Dep't Mar. 8, 1982).................................................11 Quick v. ABS Really Corp., 13 A.D.3d 1021, 787 N.Y.S.2d 455 (3d Dep't 2004)..............................................................11 Rienzi v. Rienzi, 23 A.D.3d 447, 808 N.Y.S.2d 113 (2d Dep't 2005)................................................................12 Matter of Rosenberg v. New York State Off of Parks, Recreation, & Hist. Pres., 132 A.D.3d 684, 17 N.Y.S.3d 479 (2d Dep't 2015)................................................................15 ii 3 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 Swidler & Berlin v. U.S., 24 U5.S. 399 (1998).................................................................................................................12 Troiano v. Ilaria, 205 A.D.2d 752, 614 N.Y.S.2d 916 (2d Dep't 1994)..............................................................14 Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 161 N.Y.S.3d 314 (2d Dep't 2022)................................................................5 Other Authorities CPLR 3122(d)............................................................................................................................3, 10 CPLR § 5251....................................................................................................................................7 Judiciary Law § 753.................................................................................................................1, 7, 9 Judiciary Law § 773...................................................................................................................4, 15 22 NYCRR § 202.7......................................................................................................................4, 5 22 NYCRR § 202.20........................................................................................................................5 111 4 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 PRELIMINARY STATEMENT This Memorandum of Law and the accompanying Affirmation of David S. Wilck, Esq., are submitted on behalf of the non-party law firm, Rivkin Radler LLP, in addition to three non-party attorneys with the law firm, Scott Eisenmesser, Yaron Kornblum and Walter Gumersell (collectively, the "Rivkin Non-Parties") in opposition to Plaintiff's motion for contempt pursuant to Judiciary Law §§ 753 and 773. Background This action is for a trust contest where Plaintiff seeks to invalidate two trust instruments that were created in 2008 by his mother, Mira Hertz, who is now deceased (the "Decedent"). Rivkin Radler LLP represents Defendant, Samuel Hertz, in this action. The Rivkin Non-Parties were served with Subpoenas Duces Tecum which seek documents concerning the drafting and execution of the trust instruments and documents regarding unrelated matters. Nearly all of the requests in the Subpoenas seek the same array of broad categories of documents that were demanded from Defendant in three separate document demands, to which responsive documents have been produced both before and after the Subpoenas were served. To this day, Plaintiff has never once identified a single document requested in the Subpoenas that is necessary to prosecute this action that he is not already in possession of from Defendant. Instead, Plaintiff resorts to frivolous motion practice. Summary of Arguments Plaintiff's contempt motion is procedurally defective. It is bereft of the good faith affirmation that must accompany such a motion as Plaintiff's counsel never met and conferred with counsel for the Rivkin Non-Parties concerning the alleged disputes as required under the Court Rules. In fact, had Plaintiff bothered to meet and confer with the Rivkin Non-Parties, the instant contempt motion would have been obviated. As explained herein, the Rivkin Non-Parties and Defendant appealed the Court's Order which erroneously held, among other things, that the 1 5 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 Decedent no longer has an attorney-client relationship with Rivkin Radler LLP and, therefore, the attorney-client privilege does not stand. The Rivkin Non-Parties and Defendant sought a stay of enforcement of the Order pending appeal. The Appellate Division, Second Department recently denied the stay application on January 30, 2023. Thereafter, a practical decision was made to withdraw the appeal because it would have taken a substantially period of time for the appeal to be decided. As a result, the Rivkin Non- long Parties were in the process of identifying and gathering the documents to produce to Plaintiff when the contempt motion was made. On March 13, 2023, the Rivkin Non-Parties produced all documents specific to the requests made to the Rivkin Non-Parties that are not duplicative of the requests made to Defendant as well as additional documents that were not produced by Defendant. Defendant also made a supplemental document production to Plaintiff on March 13, 2023 which contains documents that are responsive to the Subpoenas. Thus, the instant contempt motion has been rendered moot. Plaintiff's contempt motion is also substantively meritless. Plaintiff's contention that the document" Rivkin Non-Parties "never produced a single in response to the Subpoenas is not only meritless, it is misleading. The Rivkin Non-Parties have consistently made clear to Plaintiff that he is in possession of responsive documents to the requests in the Subpoenas because they are duplicative to the requests in the document demands served on Defendant, who is in fact represented by Rivkin Radler LLP as noted above. Plaintiff's exaltation of form over substance, to harass counsel for Defendant, is simply inadequate to establish that the Rivkin Non-Parties refused or willfully neglected to obey the Subpoenas to warrant the drastic relief of contempt. The Rivkin Non-Parties did not disobey any lawful mandate of the Court either. Plaintiff has not satisfied his burden of demonstrating with clear and convincing evidence that the.subject Orders clearly expressed an unequivocal mandate as to the Rivkin Non-Parties, disobedience of the Orders and resulting prejudice to Plaintiff. The law is well-settled that when an order contains 2 6 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 ambiguous, vague or indefinite language, a finding of civil contempt is not tenable. A party cannot be found liable for adopting a common sense logical interpretation of an order. That is precisely what occurred here. The May 11, 2022 Order did not clearly express an unequivocal mandate as to the Rivkin Non-Parties. The May 11, 2022 Order decided Plaintiff's motion to compel against Defendant and the Rivkin Non-Parties in one set of motion papers. The motion to compel against the Rivkin Non- Parties was very limited in scope and sought only two advance rulings from the Court (i.e., that attorneys' Plaintiff did not have to pay the Rivkin Non-Parties fees under CPLR 3122(d) and that "all" the Rivkin Non-Parties are not permitted to object to use of the term in any of the document requests). Plaintiff did not seek the production of any documents from the Rivkin Non-Parties in his motion to compel or seek any other ruling. When the May 11, 2022 Order granted Plaintiff's motion to compel, the only logical reading of that Order is that the Court only granted the relief as to the issues before it with respect to the Rivkin Non-Parties. The July 13, 2022 Order did not clearly express an unequivocal mandate as to the Rivkin Non-Parties either. That Order decided the Rivkin Non-Parties and Defendant's motion for leave to reargue the May 11, 2022 Order. The July 13, 2022 Order granted leave to the extent that "Rivkin Radler LLP shall produce a privilege log and submit subject documents for in camera inspection." The July 13, 2022 Order is vague and ambiguous when it refers to "Rivkin Radler LLP" because it does not specify if it is referring to Rivkin Radler, LLP as counsel for Defendant or the Rivkin Non-Parties. The only logical interpretation of the July 13, 2022 Order is that it pertains to Rivkin Radler LLP as counsel for Defendant based on the relief sought in Plaintiff's motion to compel. Only Plaintiff's motion to compel against Defendant sought the production of a privilege log and documents. The motion to compel against the Rivkin Non-Parties did not. Plaintiff's contempt motion must be also denied as Plaintiff has wholly failed to establish that his rights have been prejudiced by the alleged conduct of the Rivkin Non-Parties. Plaintiff's 3 7 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 conclusory allegations that he has been prejudiced with no supporting facts do not suffice, particularly where, as here, Plaintiff has received numerous documents in response to the Subpoenas. Finally, since the Rivkin Non-Parties clearly did not engage in contemptuous conduct that attorneys' caused Plaintiff prejudice, he is not entitled to an award of fees under Judiciary Law § 773 as matter of law. In sum, Plaintiff's contempt motion is procedurally defective and substantively meritless as Plaintiff has failed as a matter of fact and law to demonstrate that the Rivkin Non-Parties refused or willfully neglected to obey the Subpoena Duces Tecum or Court Orders at all, let alone with the clear and convincing evidence required to sustain his burden of proof on this motion. RELEVANT FACTS The relevant facts are set forth in the accompanying Affirmation of David S. Wilck and the exhibits annexed thereto and are incorporated by reference herein. ARGUMENT POINT I THE CONTEMPT MOTION IS PROCEDURALLY DEFECTIVE AS PLAINTIFF HAS CONFER" FAILED TO CONDUCT THE REQUISITE "MEET AND WITH THE RIVKIN NON-PARTIES WHICH WOULD HAVE OBVIATED THIS MOTION Non-Parties' As a threshold matter, the instant contempt motion based on the Rivkin purported failure to comply with discovery is procedurally defective. Under 22 NYCRR § 202.7, an affirmation of good faith must accompany all discovery motions. The affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing counsel held." was 22 NYCRR § 202.7(c). 4 8 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 Plaintiff has failed to provide any good faith affirmation whatsoever in support of his contempt motion or indicate good cause why no such conferral with counsel was held. Plaintiff's contempt motion is subject to dismissal on this ground alone. See Muchnik v. Mendez Trucking, Inc., 2023 N.Y. App. Div. LEXIS 73, at *4 (2d Dep't Jan. 11, 2023) (holding that the motion to compel and for sanctions should have been denied by the trial court as "the affirmation of good plaintiffs' faith submitted by the counsel in support of their motion to compel disclosure and for other related relief failed to provide any detail of their efforts to resolve the issues"); Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 161 N.Y.S.3d 314 (2d Dep't 2022) (holding that the Supreme Court properly denied discovery motion on the ground that the affirmation of good faith did not substantively comply with the requirements of 22 NYCRR 202.7 as it did not evince a diligent effort to resolve the discovery dispute); Natoli v. Milazzo, 65 A.D.3d 1309, 1310-11, 886 N.Y.S.2d 205, 207 (2d Dep't 2009) (holding that the trial court should have denied the cross plaintiffs' motion because "the affirmation of good faith submitted by the counsel was insufficient as it did not refer to any communications between the parties that would ... resolve the discovery dispute"). Plaintiff also failed to comply with 22 NYCRR § 202.20-f which provides that "[t]o the maximum extent possible, discovery disputes should be resolved through informal procedures, practice." such as conferences, as opposed to motion 22 NYCRR § 202.20-f(a). This Court Rule requires that each discovery motion that cannot be resolved through other than motion practice must "be supported by an affidavit or affirmation from counsel attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time of such conference." 202.20- conference, persons participating, and the length of time of the 22 NYCRR § f(b). Plaintiff's contempt motion should be denied for failing to comply with 22 NYCRR § 202.20-f as well. See 22 NYCRR § 202.20-f(c). 5 9 of 21 FILED: KINGS COUNTY CLERK 03/13/2023 05:16 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 265 RECEIVED NYSCEF: 03/13/2023 confer" In fact, compliance with the "meet and rules is particularly compelling here because Plaintiff has already received numerous documents from Defendant that are responsive to the requests in the Subpoenas Duces Tecum. As explained herein, nearly all of the requests in the Subpoenas Duces Tecum are redundant to the document demands served on the Defendant, to which responsive documents have been produced. Plaintiff's counsel never once articulated to the Rivkin Non-Parties that there are specific documents relevant and necessary to the prosecution of this action that he is not already in possession of directly from Defendant. It is clear that Plaintiff wants to bypass any attempts to meet and confer with counsel to resolve a dispute and instead rush confer" to making motions. Such unreasonable conduct is exactly what the "meet and rules are designed to avoid. Moreover, had Plaintiff's counsel complied with the Court Rules and reached out to the Rivkin Non-Parties, the instant contempt motion would have been obviated. As explained herein, in denying Defendant's cross-motion for a protective order, the Court erroneously held in the May 11, 2022 Order that the attorney-client privilege terminated upon the Decedent client's death. The Rivkin Non-Parties