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MEMORANDUM OF LAW
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
CASTLEWOOD APPAREL CORP., MEMORANDUM OF LAW
IN REPLY AND IN
Plaintiff, OPPOSITION TO
CRQSS-MOTION
-against-
Index No. 150167/2017
DAVIDOFF HUTCHER & CITRON LLP,
Defendant.
x
Defendant Davidoff Hutcher & Citron LLP ["DHC"] respectfully submits
this Memor:ñdam of Law (a) in reply to the Affirmation of Daniel Abrams, Esq. dated
April 5, 2019 s-'-±ed by plaintiff Castlewood Apparel Corp. in opposition to DHC's
motion to compel discovery pursuant to CPLR 3124 and 3126, and in support of its
motion for a protective order, and (b) in opposition to the Cross-Motion of Castlewood
for a protective order.
Castlewood has s±±R no Memorandum of Law dispu*i=g the law
cited in DHC's original Memoned•= of Law, dated March 13, 2019, showing that the
standard for discovery in New York is a very liberal one.
The New York Court of Appeals has recognized that "open discovery is
truth...." case-
crucial to the search for Each discovery request "must be evaluated on a
disclosure...."
by-case basis with due regard for the strong policy supporting open Andon
ex rel. Andon v. 302-304 Mott Street Assoniates, 94 N.Y.2d 740, 731 N.E.2d 589, 709
N.Y.S.2d 873 (2000).
Similarly, the Appellate Division, First Department has held that a party
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necessary' defenses...."
"is entitled to 'all matter material and to its claims and In..m
418 (18
Steam Pipe Explosion at Street, 127 A.D.3d 554, 8 N.Y.S.3d 88 Dep't
bankers'
2015)(Defendant was entitled to disclosure from codefendant of "48 boxes of...
documents"
that had yet to be produced).
The Appellate Division, First Department applied this liberal standard in
necessary"
explaining how the words "material and should be defined and applied. "If
there is any possibility that the infameden is sought in good faith for possible use as
eviden.ce-in-chief or for cross-examination or in rebuttal, it should be considered
'material' 'necessary'
evidence in the action.... The word means needful and not
indispensable...." (3d
Shutt v. Pooley, 43 A.D.2d 59, 349 N.Y.S.2d 839 Dep't 1973),
cited with approval Fell v. Presbyterian Hose. in N9w York at Cohimbie-
in, City of
(18
Presbyterian Medical Center, 98 A.D.2d 624, 469 N.Y.S.2d 375 Dep't 1983).
ARGUMENT
POINT I
DHC RESPECTFULLY SUBMITS THAT MR. KLEIN'S
AFFIDAVIT, WHICH IS CONVERTED FROM HIS
EARLIER AFFIRMATION, SHOULD BE GIVEN FULL
CONSIDERATION BY THIS HONORABLE COURT
Castlewood's argument that the Affirmation of Charles Klein, Esq., dated
March 13, 2019 previously s±-lted in support of DHC's motics, should be rejected for
not being in affidavit format is contrary to law. Mr. Klein is not a to this action; he
party
is a partner of defendant DHC. Castlewood has not cited First Department or Court
any
of Appeals case in support of its argument.
Submission of an affirmation rather than an affidavit of a partner of a law
firm-party may be deemed merely a technical procedural which does not
irregularity
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prejudice the adversary. Warshaw Burstein Cohen, Schlesinger & Kuh, LLP v. Longmire,
82 A.D.3d 586, 829 N.Y.S.2d 23 (1st Dep't 2011)(Plaintiffs motion to disqualify defense
counsel was granted even though plaintiff submitted an affirmation rather than an
affidsvit of a partner). Defendants can "cure[ ] their improper submission of the attorney
reply...."
defendant's affirmation by snblaing the same affir=don in affidavit form on
Chanin v. Machcinski, 139 A.D.3d 490, 31 N.Y.S.3d 492 (1st Dep't 2016).
Submission of an attorney's affirmation, as opposed to an affidavit, is
"timeld remedied when the same affirmation was submitted in affidavit form in reply
papers... and there is no indication that [adversary]... was prejudiced by the techrdcal
motion."
defect in opposing the Berlanan Bottger & Rodd, LLP v. Moriarty, 58 A.D.3d
539, 871 N.Y.S.2d 135 (1st Dep't 2009)(Plaintiff law firm's motion for remmary
judgment was granted, even though plaintiff submitted an attorney's affinden in
support of itsmotion, as opposed to an affidavit; the same afErmation was sub-.2ted in
affidavit form in reply papers).
Mr. Klein's Affidavit is manifestly relevant to this motion. Through Mr.
Klein's Affidavit, the Affirmations of Glenn W. Dopf, Esq., and the documentary proof,
"Defendant deemtre.ted a factual basis for itsdefense and that the... 'discovery sought
will result in the disclosure of relevant evidence or is reasonably calculated to lead to the
[defense]'...."
discovery of information bearing on the SNI/SI Networks LLC v.
(18t
DIRECTV, LLC, 132 A.D.3d 616, 18 N.Y.S.3d 342 Dep't 2015)(Order directing
plaintiff to produce agreements it had with its other clients, subject to a confidewaii+y
agreement, was affirmed; agreements that plentiff had with its other distdbutors were
necessary"
"material and to defendant's defeme of antecedent breach). Thus, it is
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obvious as to why Castlewood seeks to preclude the court's ccñsideration of Mr. Klein's
Affidavit.
Castlewood does not claim any prejudice or hardship from Mr. Klein's
submission originally being in affirmation format. Despite the lack of any prejudice
flowing from the affirmation format of Mr. Klein's prior submission, DHC has converted
"1"
Mr. Klein's Afn---etion into an affidavit. That Affidavit is annexed as Exhibit to the
Reply AMmeon of Glenn W. Dopf, Esq. DHC respectfully requests that this Court
accept such affidavit.
POINTH
DHC EXHAUSTED ITS GOOD FAITH EFFORTS TO
MEET AND CONFER ON THE MANY ITEMS OF
DISCOVERYTHAT DHC SEEKS
Castlewood's argument that DHC did not confer in good faith is purely an
unworthy diversionary tactic, in light of the extensive and exhaustive discu-siem, both
oral and written, in which DHC engaged with Castlewood's counsel in an effort to
resolve the discovery issues without the need for judicial intervention. DHC filed its
motion only after it became clear that any further "effort to resolve the present dispute
'futile'...."
non-judicially would have been Carrasquillo ex rel.Rivera v. Netsloh Realty
Cg , 279 A.D.2d 334, 719 N.Y.S.2d 57 (18tDep't 2001).
DHC submitted substantial details in its AMmation of Good Faith
describing the extensive effort on thepartof DHC to meet and confer with counsel for
Castlewood. Most tcilingly, Glenn W. Dopf, Esq., counsel for DHC, sent to
Castlewood's counsel an eight-pageletterdated 11, 2019 (a) all the
January identiffing
outstanding discovery issues, (b) explaining why DHC is entitled to the discovery it
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"4"
seeks, and (c) setting forth coaticiling case law to support such disclosure (Exhibit to
Motion).
In addition, on January 15, 2019, Martin B. Adams, Esq., counsel for
defendant DHC, spoke with Mr. Abrams regarding Mr. Dopfs gcad-faith letter dated
January 11, 2019 sent to Mr. Abrams. In his Reply Affirmatica of April 17, 2019
submitted herewith, Mr. Adams describes these discussiens with Mr. Abrams in detail.
Abrams'
For all these reasons Mr. contentions about DHC's failure to
meet and confer are bald faced untruths.
confer"
The cases to which Castlewood cites concerning "meet and do not
support itsarguments. Plaintiffs motion in D9utsch v. Grunwald, 110 A.D.3d 949, 973
N.Y.S.2d 335 (2d Dep't 2013) was denied because the affirmation of good faith
s=kmi+ted by plaintiff s counsel "did not refer to any ec=-·±-Mons between the parties
that would evince a diligent effort by the plM£f to resolve the present discovery
dispute...." plaintiffs'
The affirmation of attomey in Yargeau v. Lasertron, 74 A.D.3d
(4*
1805, 904 N.Y.S.2d 840 Dep't 2010), "did not edahlish that they had made any good
faith effort to resolve the 'present dispute', i.e., the alleged inadequacy of defendant's
responses...."
: By stark contrast, in the case at bar, Mr. Dopfs Afunnation of Good Faith
clacaicles DHC's painstaking good faith efforts at obtaining discovery, and provides
dacamentary support for those efforts. Mr. Dopfs Affirmation of Good Faith and
supporting documents show the time, modes of oc---2rloation, the nature of the
consultation, and the issues discussed and any resolution. Suarez v. Shapiro Family
(1"
Realty3Associates, LLC, 149 A.D.3d 526, 53 N.Y.S.3d 23 Dep't 2017)("Plaintiff s
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argument that [defendant's] affirmation of good faith failed to comply with 22 NYCRR
202.7 is unavailing, since the record demonstrates that [defendant] repeatedly en=pted
to obtain discovery and depositions..., but to no avail. 'Under the unique cir=etances of
this case', any further attempt to resolve the diyate non judicially would have been
futile..,.").
DHC repeatedly made Castlewood aware of the many ways in which
Castlewood's document-production responses and Interrogatory responses were
incomplete and insufficient. Castlewood has nevertheless failed to redress its discovery
deficiencies. The parties continue to disagree as to discoverability of documents and
infor:netion that are critical to the defense. "In light of this, it would clearly have been
futile (clecügh plaintiff would have us conclude otherwise) for defendant to undertake
further 'good faith efforts'... toward resolving this dispute prior to seeking judicial
intervention...." (3'd
Qian v. Dugan, 256 A.D.2d 782, 681 N.Y.S.2d 408 Dep't 1998).
Any additional attempts by DHC to meet and confer with Castlewood
regarding the instant disputes would have been futile and are not required by law. That is
a point well-recognized by the Appellate Division.
POINT HI
"ALL"
DHC IS ENTITLED TO DOCUMENTS
BETWEEN CASTLEWOOD AND TSA
DHC's discovery demands are sufficiently specific to place Castlewood
on notice as to the exact nature of the particular items sought. "...the requested
being
items are discoverable as material and necessary to the defense of the underlying
action..."
Roman Catholic Church of the Good ShepheM v. Tempco Systopia, 202
(18
A.D.2d 257, 608 N.Y.S.2d 647 Dep't 1994).
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DHC's use of the term, "all doenments", relates to specific subject matter,
"25"
namely, cc= -'saticas between Castlewood and TSA [Exhibit to Motion, Item
"9"], documents relating to orders placed by TSA for Prince merchandise with
Castlewood after June 26, 2014 [Id., at Item "49"], and documents relating to Prince
Merchandise shipped by Castlewood to TSA on a consignment basis after June 26, 2014.
Id.,at Item "50".
Use of the term, "all documents", does not impede a ready identification
of the,particular documents to be produced. "...it is not true, as it might once have
been...s that the designation of documents by the use of such phrases as 'all', 'allother',
all'
or 'any and necessarily and ente=_etically renders a request for documents pursuant to
imp-oper...."
CPLR 3120 Mandatowitz v. Xerox Corp., 169 A.D.2d 300, 573 N.Y.S.2d
548 (1? Dep't 1991).
The demanded documents are sufliciently described so that Castlewood
may readily understand what Castlewood is required to produce. Castlewood has not
shown that the damended documents are not material and necessary to this lita±ien. In
fact, Castlewood does not argue that itis unable to identify the particular documents that
are to be produced. Instead, Castlewood only makes a broad, unsubstan*ieted assertion of
the purportedly burdensome nature of the de-ends. Castlewood simply does not want to
produce the TSA documents.
Castlewood does not show an absence of (a) relevancy of, or (b) adequate
descriptions contained in DHC's document demands- Instead, Castlewood tries to exalt
form over substance and complain• about the particular form that the requests take, i.e.,
that they use the phrase "all documents". Castlewood's position was expressly rejected
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by the Appellate Division, First Department: "To hold that the items lack specificity
simply because they start with the word 'All', would be to exalt form over sabstance and
to frustrate the liberal discovery provisions which Article 31 of the CPLR was designed
accÖmplish." (l"
to Schtinfeld v. Burlant, 98 A.D.2d 603, 469 N.Y.S.2d 335 Dep't
1983)(Action to compel defendants to produce an assignment and mortgage instrument
which, purportedly, defendants were holding in escrow for the benefit of plaintiffs;
discovery demands that began with the phrases "All correspondence and/or memoranda",
"All documents and mememeda", "All notes, memoranda and/or documents", "Any and
documents"
all other documents", and "All financial records and sought limited and
specific subject matter and were proper). See gigo Mendelowitz v. Xerox Corp., 169
(1"
A.D.2d 300, 573 N.Y.S.2d 548 Dep't 1991).
The New York Court of Appeals has recognized that "New York
discovery rules do not condition a party's receipt of disclosure on a showing that the
items the party seeks actually exist;rather, the request need only be appropriately tailored
and reasonably calculated to yield relevant information. Indeed, as the name suggests, the
purpose of discovery is to determine if material relevant to a claim or defense exists. In
many if not most instances, a party seeking disclosure will not be able to dame-a..te that
evidence."
items it has not yet obtained contain material Forman v. Henkin, 30 N.Y.3d
656, 93 N.E.3d 882, 70 N.Y.S.3d 157 (2018). In this case, the da=..anded documents are
sufficiently described so that Castlewood may readily understand what it is required to
producte. In fact, Castlewood need only search its TSA received and sent items on its
computers and print out most of the documents requested. Castlewood has not shown,
necessary"
and cannot show, that the demanded documents are not "material and to the
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defense of this litigation.
Castlewood, as the party objecting to disclos=e, bears the burden of
showing that a discovery request is unduly burdensome. Munoz v. 147 Corp., 309
(18
A.D.2d 647, 767 N.Y.S.2d 1 Dep't 2003). Castlewood has not cited to any specific
issation from anyone at Castlewood with first-hand knowledge concerning the b".-d=
or expense of producing documents in the context of this case. Castlewood has not
provided detail or information in terms of time, money, or procedure that would be
any
involved in complying with DHC's requests.
POINT IV
CASTLEWOOD'S CLAIMED COMPLIANCE WITH
REQUEST NUMBERS 11-14, 16, 20-48, 51, 53-58, 62-77,
AND 81 OF DHC'S FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS IS NOT BORNE OUT
BY ITS OWN WORDS
Castlewood said it would produce documents responsive to request
"25"
numbe. 11-14, 16, 20-48, 51, 53-58, 62-77, and 81 of DHC's First Request (Exhibit
to motion). To date, Castlewood has not done so. Castlewood asserts that it "agreed to
documents" [Abrams'
produce Affirmation, para. 32], but does not say that Castlewood
has produced the dccr=ts. Instead, Castlewood is refusing to produce the demanded
documents. Nor has Castlewood advised DHC that after a diligent search, responsive
documents are not in Castlewood's possession, custody, or control.
Castiewood notes that it"agreed to produce documents, if any, to each and
demeds"
every of these other than demands 49 and 50, referred to in paragraphs 55-57
of Mr. Dopf's Affir-don in support of DHC's Motion (Abrams Affirmation, para. 32).
However, to date, no sposive documents have been produced.
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Castlewood has not shown what search, if any, it undertook to locate
responsive documents, who undertook the search, and the physical or electronic locations
of such a search. Castlewood has not provided any indication of "what efforts were
locate"
undertaken to the demanded documents. Sieamen v. Rosen 270 A.D.2d 14, 704
(18
N.Y.S.2d 40 Dep't 2000).
responding'
A court may direct prodüctics, despite the party's objection,
that it"does not have the requested documents in his possession", where the objection "is
not supported by an affidavit of [the respending party] himself or of any person having
located."
knowledge of where the documents are, or should be, Fugazy v. Time. Inc.. 24
(18
A.D.2d 443, 260 N.Y.S.2d 853 Dep*t 1965). A bare allegation that specific
documents are not within a responding party's possession or control is insufficient to
warrant modification of the discovery demand. Westchester County Pharmpceutical Soc.,
Inc. v. Abrams, 138 A.D.2d 721, 526 N.Y.S.2d 534 (2d Dep*t 1988).
POINT V
CASTLEWOOD SHOULD BE DIRECTED TO
PROVIDE ANSWERS TO INTERROGATORY
NUMBERS 1-7. 11, AND 12
Interrogatories 1 through 7, 11, and 12 relates to the factual circumstances
raised in allegations of Castlewood's own ccc;'aint. Castlewood does not aver that those
facts are not known to Castlewood. Instead, Castlewood only argues that Castlewood's
principals are not attorneys.
Castlewood cannot evade disclosure of the factual bases for their
allegations in itsown Complaint by hiding behind the disingenuous objection that its
principals are lay persons. The notion that Castlewood's principals "are not qualified to
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negligence"
provide honest, well M:ced answers related to the particulars of attorney
[Abrams Affirmation, para. 37] is belied by the affidavits of Messrs. Sutton and Koles,
submitted in opposition to DHC's pre-answer motion to dismiss the Co=pl=int (copies of
which are annexed as Exhibit 4 to Reply Papers), in which they set forth the kinds of acts
principals'
and omissions on DHC's part they claim constituted malpractice. The status
as lay witnesses does not preclude them from giving responsive answers to such
Interrogatories as the acts and omissions that they consider to be lawyer malpractice, the
location of each such act or omission, the dates of each legal service claimed to have
been rendered in a negligent manner, and legal advice that DHC allegedly should have
provided, but did not.
If the answer to any interrogatory requires the drawing of a conclusion, or
expression of an opinion or contention Castlewood, that conclusion pertains to a
by
matter of fact, rather than a matter of law. An interrogatory calling for a factual inference
or conclusion derived from the responding party's own pleading is proper. E. Cuker, Inc.
(18
v. New York Prop. Ins. Underwriting Assoc., 98 A.D.2d 621, 469 N.Y.S.2d 364
1983)(Plaintiffs' daraad-*
Dep't building and its contents were destroyed by fire; after
plaintiffs'
insurer rejected claim, plaintiff brought an action to recover on the policy of
insurance; defendant's answer contained eight affirmative defenses; plè*lff served with
63 interrogatories directed specifically to those defenses; the interrogatories were neither
overly broad nor do they contain improper demands or quesdeas, since they sought
'evidence material and necessary in the prosecution... of an action'....").
Castlewood's principals were able to provide what Mr. Abrams claimed to
well-informed"
be "honest, information when such principals idantified in their
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opposition papers to DHC's dismissal motion alleged acts and emimions on the part of
DHC that they asserted constituted lawyer malpractice. They also identified dates of
relevant contacts between DHC and Castlewood. Now, in an effort to resist providing
answers to Interrogatories, Castlewood impeaches its own principals by asserting that
well-informed"
those principals now lack qualif.cations to provide "honest, answers to
Interrogatories. This argument should be rejected.
POINT VI
CASTLEWOOD HAS FAILED TO MEET ITS HEAVY
BURDEN OF SHOWING ENTITLEMENT TO A
PROTECTIVE ORDER
Castlewood has cross-moved for a protective order in effect, to vacate
DHC's Third Document Request which concems Wonnacott's TSA-related
c---- :ations and to praclude DHC from serving further discovery demands.
There is a burden on the movant requesting the grant of a protective
heavy
order: ".... [T]he burden of establishing any right to protection is on the party asserting it;
the pretee*ion claimed must be narrowly construed.... Spectrum Systems Intern. Corp. v.
Chemical Bank, 78 N.Y.2d 371, 581 N.E.2d 1055, 575 N.Y.S.2d 809 (1991). "The party
to prevent disclosure has a heavy burden, especially where the materials sought
seeking
relevant."
are Marten v. Eden Park Health Services Inc., 250 A.D.2d 44, 680 N.Y.S.2d
(3"I
750 Dep't 1998). A motion for a protective order vacating a documents request will
irrelevant"
be denied where "the document request is neither overbroad nor is ...
(18
William Iselin & Co.. Inc. v. Continental Ins. Co., 101 A.D.2d 720, 475 N.Y.S.2d 29
Dep't 1984).
Castlewood has moved for a protective order (a) to vacate the Court
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authorized Third Document Request which relates exclusively to cc--mistions had by
Castlewood's consultant Richard S. Wonnacott about TSA, and (b) to preclude other
discovery requests.
Castlewood's primary complaint about the Third Document Request is
that it was p=portedly untimely, which is completely untrue. As shown in the Dopf
Reply Affirmation at paras. 10-11 and 15, the Third Dea.unent Request concerning the
TSA-rçlated cc-.-±etions of Wonnacott and related matters, was court-ordered and
unquestionably timely, and the documents requested therein are material and necessary to
Preview
FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 MEMORANDUM OF LAW 1 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CASTLEWOOD APPAREL CORP., MEMORANDUM OF LAW IN REPLY AND IN Plaintiff, OPPOSITION TO CRQSS-MOTION -against- Index No. 150167/2017 DAVIDOFF HUTCHER & CITRON LLP, Defendant. x Defendant Davidoff Hutcher & Citron LLP ["DHC"] respectfully submits this Memor:ñdam of Law (a) in reply to the Affirmation of Daniel Abrams, Esq. dated April 5, 2019 s-'-±ed by plaintiff Castlewood Apparel Corp. in opposition to DHC's motion to compel discovery pursuant to CPLR 3124 and 3126, and in support of its motion for a protective order, and (b) in opposition to the Cross-Motion of Castlewood for a protective order. Castlewood has s±±R no Memorandum of Law dispu*i=g the law cited in DHC's original Memoned•= of Law, dated March 13, 2019, showing that the standard for discovery in New York is a very liberal one. The New York Court of Appeals has recognized that "open discovery is truth...." case- crucial to the search for Each discovery request "must be evaluated on a disclosure...." by-case basis with due regard for the strong policy supporting open Andon ex rel. Andon v. 302-304 Mott Street Assoniates, 94 N.Y.2d 740, 731 N.E.2d 589, 709 N.Y.S.2d 873 (2000). Similarly, the Appellate Division, First Department has held that a party - 1 - 650394v.6 2 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 necessary' defenses...." "is entitled to 'all matter material and to its claims and In..m 418 (18 Steam Pipe Explosion at Street, 127 A.D.3d 554, 8 N.Y.S.3d 88 Dep't bankers' 2015)(Defendant was entitled to disclosure from codefendant of "48 boxes of... documents" that had yet to be produced). The Appellate Division, First Department applied this liberal standard in necessary" explaining how the words "material and should be defined and applied. "If there is any possibility that the infameden is sought in good faith for possible use as eviden.ce-in-chief or for cross-examination or in rebuttal, it should be considered 'material' 'necessary' evidence in the action.... The word means needful and not indispensable...." (3d Shutt v. Pooley, 43 A.D.2d 59, 349 N.Y.S.2d 839 Dep't 1973), cited with approval Fell v. Presbyterian Hose. in N9w York at Cohimbie- in, City of (18 Presbyterian Medical Center, 98 A.D.2d 624, 469 N.Y.S.2d 375 Dep't 1983). ARGUMENT POINT I DHC RESPECTFULLY SUBMITS THAT MR. KLEIN'S AFFIDAVIT, WHICH IS CONVERTED FROM HIS EARLIER AFFIRMATION, SHOULD BE GIVEN FULL CONSIDERATION BY THIS HONORABLE COURT Castlewood's argument that the Affirmation of Charles Klein, Esq., dated March 13, 2019 previously s±-lted in support of DHC's motics, should be rejected for not being in affidavit format is contrary to law. Mr. Klein is not a to this action; he party is a partner of defendant DHC. Castlewood has not cited First Department or Court any of Appeals case in support of its argument. Submission of an affirmation rather than an affidavit of a partner of a law firm-party may be deemed merely a technical procedural which does not irregularity - 2 - 650394v.6 3 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 prejudice the adversary. Warshaw Burstein Cohen, Schlesinger & Kuh, LLP v. Longmire, 82 A.D.3d 586, 829 N.Y.S.2d 23 (1st Dep't 2011)(Plaintiffs motion to disqualify defense counsel was granted even though plaintiff submitted an affirmation rather than an affidsvit of a partner). Defendants can "cure[ ] their improper submission of the attorney reply...." defendant's affirmation by snblaing the same affir=don in affidavit form on Chanin v. Machcinski, 139 A.D.3d 490, 31 N.Y.S.3d 492 (1st Dep't 2016). Submission of an attorney's affirmation, as opposed to an affidavit, is "timeld remedied when the same affirmation was submitted in affidavit form in reply papers... and there is no indication that [adversary]... was prejudiced by the techrdcal motion." defect in opposing the Berlanan Bottger & Rodd, LLP v. Moriarty, 58 A.D.3d 539, 871 N.Y.S.2d 135 (1st Dep't 2009)(Plaintiff law firm's motion for remmary judgment was granted, even though plaintiff submitted an attorney's affinden in support of itsmotion, as opposed to an affidavit; the same afErmation was sub-.2ted in affidavit form in reply papers). Mr. Klein's Affidavit is manifestly relevant to this motion. Through Mr. Klein's Affidavit, the Affirmations of Glenn W. Dopf, Esq., and the documentary proof, "Defendant deemtre.ted a factual basis for itsdefense and that the... 'discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the [defense]'...." discovery of information bearing on the SNI/SI Networks LLC v. (18t DIRECTV, LLC, 132 A.D.3d 616, 18 N.Y.S.3d 342 Dep't 2015)(Order directing plaintiff to produce agreements it had with its other clients, subject to a confidewaii+y agreement, was affirmed; agreements that plentiff had with its other distdbutors were necessary" "material and to defendant's defeme of antecedent breach). Thus, it is - 3 - 650394v.6 4 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 obvious as to why Castlewood seeks to preclude the court's ccñsideration of Mr. Klein's Affidavit. Castlewood does not claim any prejudice or hardship from Mr. Klein's submission originally being in affirmation format. Despite the lack of any prejudice flowing from the affirmation format of Mr. Klein's prior submission, DHC has converted "1" Mr. Klein's Afn---etion into an affidavit. That Affidavit is annexed as Exhibit to the Reply AMmeon of Glenn W. Dopf, Esq. DHC respectfully requests that this Court accept such affidavit. POINTH DHC EXHAUSTED ITS GOOD FAITH EFFORTS TO MEET AND CONFER ON THE MANY ITEMS OF DISCOVERYTHAT DHC SEEKS Castlewood's argument that DHC did not confer in good faith is purely an unworthy diversionary tactic, in light of the extensive and exhaustive discu-siem, both oral and written, in which DHC engaged with Castlewood's counsel in an effort to resolve the discovery issues without the need for judicial intervention. DHC filed its motion only after it became clear that any further "effort to resolve the present dispute 'futile'...." non-judicially would have been Carrasquillo ex rel.Rivera v. Netsloh Realty Cg , 279 A.D.2d 334, 719 N.Y.S.2d 57 (18tDep't 2001). DHC submitted substantial details in its AMmation of Good Faith describing the extensive effort on thepartof DHC to meet and confer with counsel for Castlewood. Most tcilingly, Glenn W. Dopf, Esq., counsel for DHC, sent to Castlewood's counsel an eight-pageletterdated 11, 2019 (a) all the January identiffing outstanding discovery issues, (b) explaining why DHC is entitled to the discovery it - 4 - 650394v.6 5 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 "4" seeks, and (c) setting forth coaticiling case law to support such disclosure (Exhibit to Motion). In addition, on January 15, 2019, Martin B. Adams, Esq., counsel for defendant DHC, spoke with Mr. Abrams regarding Mr. Dopfs gcad-faith letter dated January 11, 2019 sent to Mr. Abrams. In his Reply Affirmatica of April 17, 2019 submitted herewith, Mr. Adams describes these discussiens with Mr. Abrams in detail. Abrams' For all these reasons Mr. contentions about DHC's failure to meet and confer are bald faced untruths. confer" The cases to which Castlewood cites concerning "meet and do not support itsarguments. Plaintiffs motion in D9utsch v. Grunwald, 110 A.D.3d 949, 973 N.Y.S.2d 335 (2d Dep't 2013) was denied because the affirmation of good faith s=kmi+ted by plaintiff s counsel "did not refer to any ec=-·±-Mons between the parties that would evince a diligent effort by the plM£f to resolve the present discovery dispute...." plaintiffs' The affirmation of attomey in Yargeau v. Lasertron, 74 A.D.3d (4* 1805, 904 N.Y.S.2d 840 Dep't 2010), "did not edahlish that they had made any good faith effort to resolve the 'present dispute', i.e., the alleged inadequacy of defendant's responses...." : By stark contrast, in the case at bar, Mr. Dopfs Afunnation of Good Faith clacaicles DHC's painstaking good faith efforts at obtaining discovery, and provides dacamentary support for those efforts. Mr. Dopfs Affirmation of Good Faith and supporting documents show the time, modes of oc---2rloation, the nature of the consultation, and the issues discussed and any resolution. Suarez v. Shapiro Family (1" Realty3Associates, LLC, 149 A.D.3d 526, 53 N.Y.S.3d 23 Dep't 2017)("Plaintiff s -5- 650394v.6 6 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 argument that [defendant's] affirmation of good faith failed to comply with 22 NYCRR 202.7 is unavailing, since the record demonstrates that [defendant] repeatedly en=pted to obtain discovery and depositions..., but to no avail. 'Under the unique cir=etances of this case', any further attempt to resolve the diyate non judicially would have been futile..,."). DHC repeatedly made Castlewood aware of the many ways in which Castlewood's document-production responses and Interrogatory responses were incomplete and insufficient. Castlewood has nevertheless failed to redress its discovery deficiencies. The parties continue to disagree as to discoverability of documents and infor:netion that are critical to the defense. "In light of this, it would clearly have been futile (clecügh plaintiff would have us conclude otherwise) for defendant to undertake further 'good faith efforts'... toward resolving this dispute prior to seeking judicial intervention...." (3'd Qian v. Dugan, 256 A.D.2d 782, 681 N.Y.S.2d 408 Dep't 1998). Any additional attempts by DHC to meet and confer with Castlewood regarding the instant disputes would have been futile and are not required by law. That is a point well-recognized by the Appellate Division. POINT HI "ALL" DHC IS ENTITLED TO DOCUMENTS BETWEEN CASTLEWOOD AND TSA DHC's discovery demands are sufficiently specific to place Castlewood on notice as to the exact nature of the particular items sought. "...the requested being items are discoverable as material and necessary to the defense of the underlying action..." Roman Catholic Church of the Good ShepheM v. Tempco Systopia, 202 (18 A.D.2d 257, 608 N.Y.S.2d 647 Dep't 1994). - 6 - 650394t.6 7 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 DHC's use of the term, "all doenments", relates to specific subject matter, "25" namely, cc= -'saticas between Castlewood and TSA [Exhibit to Motion, Item "9"], documents relating to orders placed by TSA for Prince merchandise with Castlewood after June 26, 2014 [Id., at Item "49"], and documents relating to Prince Merchandise shipped by Castlewood to TSA on a consignment basis after June 26, 2014. Id.,at Item "50". Use of the term, "all documents", does not impede a ready identification of the,particular documents to be produced. "...it is not true, as it might once have been...s that the designation of documents by the use of such phrases as 'all', 'allother', all' or 'any and necessarily and ente=_etically renders a request for documents pursuant to imp-oper...." CPLR 3120 Mandatowitz v. Xerox Corp., 169 A.D.2d 300, 573 N.Y.S.2d 548 (1? Dep't 1991). The demanded documents are sufliciently described so that Castlewood may readily understand what Castlewood is required to produce. Castlewood has not shown that the damended documents are not material and necessary to this lita±ien. In fact, Castlewood does not argue that itis unable to identify the particular documents that are to be produced. Instead, Castlewood only makes a broad, unsubstan*ieted assertion of the purportedly burdensome nature of the de-ends. Castlewood simply does not want to produce the TSA documents. Castlewood does not show an absence of (a) relevancy of, or (b) adequate descriptions contained in DHC's document demands- Instead, Castlewood tries to exalt form over substance and complain• about the particular form that the requests take, i.e., that they use the phrase "all documents". Castlewood's position was expressly rejected . -7- 6503944.6 8 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 by the Appellate Division, First Department: "To hold that the items lack specificity simply because they start with the word 'All', would be to exalt form over sabstance and to frustrate the liberal discovery provisions which Article 31 of the CPLR was designed accÖmplish." (l" to Schtinfeld v. Burlant, 98 A.D.2d 603, 469 N.Y.S.2d 335 Dep't 1983)(Action to compel defendants to produce an assignment and mortgage instrument which, purportedly, defendants were holding in escrow for the benefit of plaintiffs; discovery demands that began with the phrases "All correspondence and/or memoranda", "All documents and mememeda", "All notes, memoranda and/or documents", "Any and documents" all other documents", and "All financial records and sought limited and specific subject matter and were proper). See gigo Mendelowitz v. Xerox Corp., 169 (1" A.D.2d 300, 573 N.Y.S.2d 548 Dep't 1991). The New York Court of Appeals has recognized that "New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist;rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if not most instances, a party seeking disclosure will not be able to dame-a..te that evidence." items it has not yet obtained contain material Forman v. Henkin, 30 N.Y.3d 656, 93 N.E.3d 882, 70 N.Y.S.3d 157 (2018). In this case, the da=..anded documents are sufficiently described so that Castlewood may readily understand what it is required to producte. In fact, Castlewood need only search its TSA received and sent items on its computers and print out most of the documents requested. Castlewood has not shown, necessary" and cannot show, that the demanded documents are not "material and to the - 8- 650394v.6 9 of 15 A FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 defense of this litigation. Castlewood, as the party objecting to disclos=e, bears the burden of showing that a discovery request is unduly burdensome. Munoz v. 147 Corp., 309 (18 A.D.2d 647, 767 N.Y.S.2d 1 Dep't 2003). Castlewood has not cited to any specific issation from anyone at Castlewood with first-hand knowledge concerning the b".-d= or expense of producing documents in the context of this case. Castlewood has not provided detail or information in terms of time, money, or procedure that would be any involved in complying with DHC's requests. POINT IV CASTLEWOOD'S CLAIMED COMPLIANCE WITH REQUEST NUMBERS 11-14, 16, 20-48, 51, 53-58, 62-77, AND 81 OF DHC'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS IS NOT BORNE OUT BY ITS OWN WORDS Castlewood said it would produce documents responsive to request "25" numbe. 11-14, 16, 20-48, 51, 53-58, 62-77, and 81 of DHC's First Request (Exhibit to motion). To date, Castlewood has not done so. Castlewood asserts that it "agreed to documents" [Abrams' produce Affirmation, para. 32], but does not say that Castlewood has produced the dccr=ts. Instead, Castlewood is refusing to produce the demanded documents. Nor has Castlewood advised DHC that after a diligent search, responsive documents are not in Castlewood's possession, custody, or control. Castiewood notes that it"agreed to produce documents, if any, to each and demeds" every of these other than demands 49 and 50, referred to in paragraphs 55-57 of Mr. Dopf's Affir-don in support of DHC's Motion (Abrams Affirmation, para. 32). However, to date, no sposive documents have been produced. - 9 - 650394v½6 10 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 Castlewood has not shown what search, if any, it undertook to locate responsive documents, who undertook the search, and the physical or electronic locations of such a search. Castlewood has not provided any indication of "what efforts were locate" undertaken to the demanded documents. Sieamen v. Rosen 270 A.D.2d 14, 704 (18 N.Y.S.2d 40 Dep't 2000). responding' A court may direct prodüctics, despite the party's objection, that it"does not have the requested documents in his possession", where the objection "is not supported by an affidavit of [the respending party] himself or of any person having located." knowledge of where the documents are, or should be, Fugazy v. Time. Inc.. 24 (18 A.D.2d 443, 260 N.Y.S.2d 853 Dep*t 1965). A bare allegation that specific documents are not within a responding party's possession or control is insufficient to warrant modification of the discovery demand. Westchester County Pharmpceutical Soc., Inc. v. Abrams, 138 A.D.2d 721, 526 N.Y.S.2d 534 (2d Dep*t 1988). POINT V CASTLEWOOD SHOULD BE DIRECTED TO PROVIDE ANSWERS TO INTERROGATORY NUMBERS 1-7. 11, AND 12 Interrogatories 1 through 7, 11, and 12 relates to the factual circumstances raised in allegations of Castlewood's own ccc;'aint. Castlewood does not aver that those facts are not known to Castlewood. Instead, Castlewood only argues that Castlewood's principals are not attorneys. Castlewood cannot evade disclosure of the factual bases for their allegations in itsown Complaint by hiding behind the disingenuous objection that its principals are lay persons. The notion that Castlewood's principals "are not qualified to - 10 - 6503949.d 11 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 negligence" provide honest, well M:ced answers related to the particulars of attorney [Abrams Affirmation, para. 37] is belied by the affidavits of Messrs. Sutton and Koles, submitted in opposition to DHC's pre-answer motion to dismiss the Co=pl=int (copies of which are annexed as Exhibit 4 to Reply Papers), in which they set forth the kinds of acts principals' and omissions on DHC's part they claim constituted malpractice. The status as lay witnesses does not preclude them from giving responsive answers to such Interrogatories as the acts and omissions that they consider to be lawyer malpractice, the location of each such act or omission, the dates of each legal service claimed to have been rendered in a negligent manner, and legal advice that DHC allegedly should have provided, but did not. If the answer to any interrogatory requires the drawing of a conclusion, or expression of an opinion or contention Castlewood, that conclusion pertains to a by matter of fact, rather than a matter of law. An interrogatory calling for a factual inference or conclusion derived from the responding party's own pleading is proper. E. Cuker, Inc. (18 v. New York Prop. Ins. Underwriting Assoc., 98 A.D.2d 621, 469 N.Y.S.2d 364 1983)(Plaintiffs' daraad-* Dep't building and its contents were destroyed by fire; after plaintiffs' insurer rejected claim, plaintiff brought an action to recover on the policy of insurance; defendant's answer contained eight affirmative defenses; plè*lff served with 63 interrogatories directed specifically to those defenses; the interrogatories were neither overly broad nor do they contain improper demands or quesdeas, since they sought 'evidence material and necessary in the prosecution... of an action'...."). Castlewood's principals were able to provide what Mr. Abrams claimed to well-informed" be "honest, information when such principals idantified in their - 11 - 650394v.6 12 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 opposition papers to DHC's dismissal motion alleged acts and emimions on the part of DHC that they asserted constituted lawyer malpractice. They also identified dates of relevant contacts between DHC and Castlewood. Now, in an effort to resist providing answers to Interrogatories, Castlewood impeaches its own principals by asserting that well-informed" those principals now lack qualif.cations to provide "honest, answers to Interrogatories. This argument should be rejected. POINT VI CASTLEWOOD HAS FAILED TO MEET ITS HEAVY BURDEN OF SHOWING ENTITLEMENT TO A PROTECTIVE ORDER Castlewood has cross-moved for a protective order in effect, to vacate DHC's Third Document Request which concems Wonnacott's TSA-related c---- :ations and to praclude DHC from serving further discovery demands. There is a burden on the movant requesting the grant of a protective heavy order: ".... [T]he burden of establishing any right to protection is on the party asserting it; the pretee*ion claimed must be narrowly construed.... Spectrum Systems Intern. Corp. v. Chemical Bank, 78 N.Y.2d 371, 581 N.E.2d 1055, 575 N.Y.S.2d 809 (1991). "The party to prevent disclosure has a heavy burden, especially where the materials sought seeking relevant." are Marten v. Eden Park Health Services Inc., 250 A.D.2d 44, 680 N.Y.S.2d (3"I 750 Dep't 1998). A motion for a protective order vacating a documents request will irrelevant" be denied where "the document request is neither overbroad nor is ... (18 William Iselin & Co.. Inc. v. Continental Ins. Co., 101 A.D.2d 720, 475 N.Y.S.2d 29 Dep't 1984). Castlewood has moved for a protective order (a) to vacate the Court - 12 - 650394v.6 13 of 15 FILED: NEW YORK COUNTY CLERK 04/18/2019 12:58 PM INDEX NO. 150167/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 04/18/2019 authorized Third Document Request which relates exclusively to cc--mistions had by Castlewood's consultant Richard S. Wonnacott about TSA, and (b) to preclude other discovery requests. Castlewood's primary complaint about the Third Document Request is that it was p=portedly untimely, which is completely untrue. As shown in the Dopf Reply Affirmation at paras. 10-11 and 15, the Third Dea.unent Request concerning the TSA-rçlated cc-.-±etions of Wonnacott and related matters, was court-ordered and unquestionably timely, and the documents requested therein are material and necessary to