Preview
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
NORMA KNOPF and MICHAEL KNOPF,
Plaintiffs,
Index No. 150315/2019
-against-
IAS Part 7
FRANK M. ESPOSITO, DORSEY & WHITNEY, (Hon. Gerald Lebovits)
LLP, NATHANIEL H. AKERMAN, and EDWARD
S. FELDMAN, Motion Sequence No. 19
Defendants.
EDWARD S. FELDMAN,
Third-Party Plaintiff,
-against-
ERIC W. BERRY,
Third-Party Defendant.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS
DORSEY & WHITNEY LLP AND NATHANIEL AKERMAN’S
CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION
TO PLAINTIFF NORMA KNOPF’S MOTION FOR SUMMARY JUDGMENT
MORVILLO ABRAMOWITZ GRAND IASON
& ANELLO P.C.
565 Fifth Avenue
New York, New York 10017
(212) 856-9600 (telephone)
(212) 856-9494 (facsimile)
Attorneys for Defendants Dorsey & Whitney LLP
and Nathaniel H. Akerman
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .....................................................................................................1
KNOPF’S ALLEGATIONS AND THIS COURT’S PRIOR ORDERS .........................................3
UNDISPUTED FACTS ...................................................................................................................4
A. Akerman’s History ...................................................................................................4
B. Knopf’s Litigations Against Sanford .......................................................................5
C. The January 2016 Phone Call to the Court Attorney ...............................................6
D. The Sale of the Apartment and Subsequent Litigation ............................................7
E. The Federal Case Based on the January 2016 Phone Call .......................................8
ARGUMENT .................................................................................................................................10
I. PRIOR COURT ORDERS COLLATERALLY ESTOP KNOPF FROM
ASSERTING HER CONSPIRACY AND DAMAGE CLAIMS ..........................12
II. THE FIRST AND SECOND CLAIMS SHOULD BE DISMISSED
BECAUSE NEITHER “EGREGIOUS MISCONDUCT” NOR ANY
“CHRONIC AND EXTREME PATTERN OF BEHAVIOR” EXISTS ...............14
A. The Evidence Produced for the First Claim Does Not Establish the
Conduct New York Courts Require for §487 Violations ............................15
B. Actions as a Witness or Party Do Not Support §487 Liability ..................18
C. The Second Claim Should Be Dismissed Because of Collateral
Estoppel and the Absence of Evidence That Akerman Knowingly
Conspired With Anyone to Deprive Knopf of Her Rights..........................19
III. THE SEVENTH CLAIM SHOULD BE DISMISSED FOR AT LEAST
THREE INDEPENDENTLY DISPOSITIVE REASONS ....................................21
A. Actions as a Witness or Party Cannot Support §487 Liability....................21
B. Actions in a Prior Federal Case Cannot Support §487 Liability.................22
C. The Federal Court’s Denial of Sanctions Based on Akerman’s
Testimony Bars the Seventh Claim .............................................................22
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IV. KNOPF HAS NO DAMAGES ..............................................................................24
A. Knopf Is Estopped From Claiming That Her Damages Are More
Than $976,460.48 .......................................................................................24
B. Knopf Cannot Recover as Damages Other Amounts Constituting
Bona Fide Payments Out of the Sale Proceeds ...........................................26
C. Knopf Owns No “Equitable Mortgage” ......................................................29
D. Knopf Cannot Recover the Grossly Disproportionate Attorneys’
Fees That She Seeks to Add as Damages ...................................................30
V. KNOPF’S SUMMARY JUDGMENT MOTION, WHICH IGNORES
PRIOR COURT RULINGS AND SEEKS JUDGMENT BASED ON
SPECULATION ABOUT INTENT, SHOULD BE DENIED ..............................31
CONCLUSION ..............................................................................................................................34
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TABLE OF AUTHORITIES
Page(s)
Cases
Altman v. DiPreta,
204 A.D.3d 965, 168 N.Y.S.3d 86 (2d Dep’t 2022).................................................................. 18
Amalfitano v. Rosenberg,
12 N.Y.3d 8 (2009) .............................................................................................................. 11, 18
B.R. DeWitt, Inc. v. Hall,
19 N.Y.2d 141 (1967) ................................................................................................................ 13
Barrows v. Alexander,
78 A.D.3d 1693, 912 N.Y.S.2d 831 (4th Dep’t 2010)............................................................... 19
Bifolck v. Philip Morris USA Inc.,
936 F.3d 74 (2d Cir. 2019) ........................................................................................................ 12
Briarpatch Ltd., L.P. v. Frankfurt Garbus Klein & Selz, P.C.,
13 A.D.3d 296, 787 N.Y.S.2d 267 (1st Dep’t 2004) ................................................................. 23
Brooks v. Green’s Appliances Inc.,
259 A.D.2d 893, 686 N.Y.S.2d 533 (3d Dep’t 1999)................................................................ 24
Chowaiki & Co. Fine Art Ltd. v. Lacher,
115 A.D.3d 600, 982 N.Y.S.2d 474 (1st Dep’t 2014) ............................................................... 15
Cruz v. Gomez,
202 F.3d 593 (2d Cir. 2000) ...................................................................................................... 23
Doscher v. Mannatt, Phelps & Phillips, LLP,
148 A.D.3d 523, 48 N.Y.S.3d 593 (1st Dep’t 2017) ............................................... 11, 18, 22, 23
Facebook, Inc. v. DLA Piper LLP (US),
134 A.D.3d 610, 23 N.Y.S.3d 173 (1st Dep’t 2015) ................................................................. 15
Feinberg v. Boros,
99 A.D.3d 219, 951 N.Y.S.2d 110 (1st Dep’t 2012) ................................................................. 13
Ferring B.V. v. Serenity Pharmaceuticals, LLC,
391 F. Supp.3d 265 (S.D.N.Y. 2019) .................................................................................. 13, 14
Finance Investment Co. Ltd. v. Friedman, Leeds, Shorenstein & Armenakis,
159 A.D.2d 479, 552 N.Y.S.2d 351 (2d Dep’t 1990)................................................................ 17
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Franklin Development Co., Inc. v. Atlantic Mutual Insurance Co.,
60 A.D.3d 897, 876 N.Y.S.2d 103 (2nd Dep’t 2009)................................................................ 14
Fremont Investment & Loan v. DelSol,
65 A.D.3d 1013, 885 N.Y.S.2d 505 (2d Dep’t 2009)................................................................ 29
Georgakis v. E. Air Lines, Inc.,
512 F. Supp. 330 (E.D.N.Y. 1981) ............................................................................................ 14
Gillen v. McCarron,
126 A.D.3d 670, 6 N.Y.S.3d 253 (2d Dep’t 2015) .................................................................... 23
Idi Jewels, Inc. v. Abramov,
193 A.D.3d 699, 141 N.Y.S.3d 903 (2d Dep’t 2021)................................................................ 10
Jericho Grp. Ltd. v. Midtown Dev., L.P.,
67 A.D.3d 431, 889 N.Y.S.2d 18 (1st Dep’t 2009) ................................................................... 23
Kaminsky v. Herrick, Feinstein LLP,
59 A.D.3d 1, 870 N.Y.S.2d 1 (1st Dep’t 2008) ......................................................................... 15
Kaufman v. Eli Lilly and Co.,
65 N.Y.2d 449 (1985) ................................................................................................................ 13
Kershaw v. Hospital for Special Surgery,
114 A.D.3d 75, 978 N.Y.S.2d 13 (1st Dep’t 2013) ................................................................... 10
Knopf v. Esposito,
803 F. App’x 448 (2d Cir. 2020) ................................................................................................. 9
Knopf v. Esposito,
17 Civ. 5833 (DLC), 2018 WL 3579104 (S.D.N.Y. July 25, 2018) ............................... 8, 23, 24
Knopf v. Esposito,
17 Civ. 5833 (DLC), 2021 WL 2138459 (S.D.N.Y. May 26, 2021) ................................... 20, 21
Knopf v. Esposito,
17 Civ. 5833 (DLC), 2021 WL 2138460 (S.D.N.Y. May 26, 2021) .................................. Passim
Knopf v. Feldman & Associates, PLLC,
180 A.D.3d 508, 115 N.Y.S.3d 875 (1st Dep’t 2020) ......................................................... 27, 28
Knopf v. Sanford,
65 Misc. 3d 463 (Sup. Ct. N.Y. Cnty. 2019) ............................................................................. 17
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LoSacco v. City of Middletown,
71 F.3d 88 (2d Cir. 1995) .......................................................................................................... 24
Manhattan Sports Rests. of America, LLC v. Lieu,
137 A.D.3d 504, 27 N.Y.S.3d 125 (1st Dep’t 2016) ................................................................. 19
Melcher v. Greenberg Traurig LLP,
135 A.D.3d 547, 24 N.Y.S.3d 249 (1st Dep’t 2016) ................................................................. 31
Montesa v. Schwartz,
2015 WL 13173165 (S.D.N.Y. Sept. 22, 2015) ........................................................................ 13
New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp.,
153 A.D.3d 1351, 61 N.Y.S.3d 136 (2d Dep’t 2017)................................................................ 16
Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians,
94 F.3d 747 (2d Cir. 1996) ........................................................................................................ 12
Pallian v. MetLife Bank,
2013 U.S. Dist. LEXIS 87561 (E.D.N.Y. June 21, 2013) ......................................................... 29
Pannone v. Silberstein,
118 A.D.3d 413, 990 N.Y.S.2d 164 (1st Dep’t 2014) ............................................................... 15
Pantoja v. Scott,
2001 WL 1313358 (S.D.N.Y. Oct. 26, 2001) ............................................................................ 14
Paramount Pictures Corp. v. Allianz Risk Transfer AG,
31 N.Y.3d 64 (2018) ............................................................................................................ 12, 13
Pena v. Travis,
2002 WL 31886175 (S.D.N.Y. Dec. 27, 2002) ......................................................................... 13
Philip S. Schwartzman, Inc. v. Pliskin, Rubano, Baum & Vitulli,
215 A.D.3d 699, 187 N.Y.S.3d 702 (2d Dep’t 2023)................................................................ 24
Pinkesz Mut. Holdings, LLC v Pinkesz,
198 A.D.3d 693, 156 N.Y.S.3d 216 (2d Dep’t 2021)................................................................ 19
Schwartz v. Public Adm’r of Bronx County,
24 N.Y.2d 65 (1969) .................................................................................................................. 13
Seldon v Spinnell,
95 A.D. 3d 779, 945 N.Y.S.2d 666 (1st Dep’t 2012) ................................................................ 18
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Shawe v. Elting,
161 A.D.3d 585, 77 N.Y.S.3d 400 (1st Dep’t 2018) ................................................................. 15
Soc’y v. City of Buffalo,
689 F.3d 263 (2d Cir. 2012) ...................................................................................................... 23
Strumwasser v. Zeiderman,
102 A.D.3d 630, 958 N.Y.S.2d 395 (1st Dep’t 2013) ............................................................... 15
Tepper v. Bendell,
2002 WL 31729601 (S.D.N.Y. Dec. 5, 2002) ........................................................................... 13
U.S. Dept. of Justice v. Hudson,
2007 WL 2461783 (N.D.N.Y. Aug. 24, 2007) .......................................................................... 14
U.S. v. Kellington,
217 F.3d 1084 (9th Cir. 2000) ................................................................................................... 12
Wilson v. Dantas,
29 N.Y.3d 1051 (2017) .............................................................................................................. 13
Winegrad v. NY Univ. Med. Ctr.,
64 N.Y.2d 851 (1985) ................................................................................................................ 10
Statutes
42 U.S.C. §1983 .............................................................................................................................. 8
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PRELIMINARY STATEMENT
Defendants Nathaniel Akerman and Dorsey & Whitney LLP (together, “Dorsey”) submit
this memorandum in support of their motion for summary judgment on the three remaining
claims in Norma Knopf’s 1 Amended Complaint (“AC”) and in opposition to Knopf’s motion for
summary judgment. These are the three remaining claims:
• The First Claim, alleging violations of Judiciary Law §487 before October 13,
2017;
• The Second Claim, alleging conspiracy to violate §487; and
• The Seventh Claim, alleging violations of §487, based on events in the parallel
federal civil rights action, now settled with respect to Dorsey.
Knopf’s claims all arise out of a four-minute call over seven years ago by Akerman and
Defendant Edward Feldman on behalf of their client Michael Sanford to a Court Attorney in the
First Department. Their purpose was to ascertain the procedural status of court orders relating to
sales proceeds of Sanford’s Manhattan apartment. The call was followed by Akerman’s short
memo and subsequent testimony by Akerman and others reporting the results of the call.
Akerman’s initial testimony about how his call reached the Court Attorney was incorrect but was
corrected promptly once telephone records establishing his error were voluntarily obtained by
Dorsey.
Years of aggressive discovery by Knopf’s counsel, with multiple depositions of every
relevant witness, have surely unearthed every possible available fact about Akerman’s four-
minute call and its aftermath. All that discovery has produced no evidence to rebut the
conclusions that Akerman lacked any knowledge of the Court Attorney’s marriage to Sanford
1
During much of the relevant period, Ms. Knopf’s deceased husband was also a plaintiff. For
simplicity, the two together or she alone are referred to as “Knopf.”
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attorney Frank Esposito. Akerman had never met or spoken to the Court Attorney or her
husband, and he had never talked to his supposed co-conspirator Feldman other than a few
communications relating to the short call. If, as the District Attorney has charged in the criminal
case scheduled for trial this fall, the Court Attorney and her husband conspired to commit
wrongdoing, Akerman was an unwitting tool, perhaps one with insufficient skepticism and
imperfect memory, that others used for that effort. That is why Akerman is a witness, not a
target, in the criminal trial scheduled for September. No plausible motive to join a conspiracy
with other attorneys he did not know to obtain approximately one hour of billable time has ever
appeared, especially for a respected attorney with decades of unblemished legal practice.
Dorsey seeks summary judgment, for these reasons:
1. As to the First Claim: Akerman’s four-minute phone call, follow-up memo, and
incorrect deposition testimony do not constitute the level or pattern of conduct or
intent to deceive that New York courts require before imposing §487 liability.
2. As to the Second Claim alleging conspiracy: Whoever else might have “conspired,”
no evidence indicates that Akerman knowingly participated. Like Feldman, to whom
the federal court has already granted summary judgment on Knopf’s parallel
conspiracy claim, Akerman was not part of any conspiracy.
3. As to the Seventh Claim: New York law establishes that conduct as a witness or
party, even when the witness or party is a lawyer, cannot establish §487 liability. Nor
can actions before a federal court—a fortiori, a resolved case including an
unappealed rejection of Knopf’s request for sanctions— form the basis for a §487
claim.
2
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4. As to all claims: Collateral estoppel combined with uncontradicted evidence
establishes that Knopf has no remaining damage claim. She has already recovered
more than she is entitled to. As a matter of law, there was no operative escrow order
prohibiting distribution of sale proceeds. This Court has nonetheless noted, with
Knopf, that Knopf could potentially have been harmed by her exclusion from the
January 2016 call because she might have obtained a new escrow order. But both the
Appellate Division and the federal court have held that she has no “equitable lien”
rights that would give her rights over other creditors. Indeed, she intentionally
forewent any effort to obtain a mortgage. In addition, collateral estoppel from the
parallel federal case establishes that Knopf’s damages total less than $1 million
before multiple exclusions are added in, and indisputable facts wholly eliminate her
remaining claim.
5. Knopf is not entitled to summary judgment on any claim for the reasons stated in
support of Dorsey’s own motion and because a summary judgment motion relying on
invidious speculations about Akerman’s intent—the central element of a §487
claim—is improper.
KNOPF’S ALLEGATIONS AND THIS COURT’S PRIOR ORDERS
Knopf’s AC asserted five causes of action against Dorsey. NYSCEF 14 ¶¶185-208, 243-
58, 276-84. On March 4, 2021, this Court issued its Decision and Order granting in part and
denying in part Dorsey’s motion to dismiss. NYSCEF 305. The Court dismissed one fraud-
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based claim and a claim for a declaratory judgment. Three claims—the First, Second, and
Seventh, asserting violations of §487—remain. 2
The record has been exhaustively enlarged since that time. Though at the motion to
dismiss stage this Court ruled that Knopf had sufficiently alleged that “Akerman knowingly
helped Sanford, his client, evade a court order” by getting a First Department court attorney to
render an “(incorrect) legal opinion,” id. at 47, three appellate rulings surely undercut that
conclusion now. Dorsey contends that Knopf’s assumption has been wholly invalidated. In any
event, when three panels of the Appellate Division have ruled that no escrow order was in place
at the time of the call, at the very least it has to be said that no violation of any court order
sufficient to support a §487 violation could be deemed clear.
Knopf and this Court have hypothesized that had Knopf’s attorney been present on the
call, she could have sought another escrow order, as she in fact did. But all such an order would
have meant is that a court would have sorted out who was entitled to what share of the apartment
proceeds. Since Knopf had no recorded mortgage, no plausible “equitable mortgage,” or other
lien right, and other creditors did have lien or other formalized rights, the result of such sorting
out would have been that Knopf would have received no more than she already has.
UNDISPUTED FACTS
A. Akerman’s History
In over forty years as a member of the New York Bar, Akerman has never been the
subject of any disciplinary action. Ex. A 3 ¶1. He has been a commentator on public affairs and
2
The Court’s decision not to dismiss those three Claims remains on appeal, fully briefed but not
yet scheduled for argument after transfer to the Second Department.
3
References herein to “Ex._” are to the exhibits to the Affirmation of Edward M. Spiro, dated
June 16, 2023, filed in conjunction with this memorandum.
4
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has written three pieces published on the op-ed page of the New York Times, among other
publications. Id.
Akerman’s role in the events giving rise to this case consisted of a four-minute telephone
call, a memo to his client accurate in substantive respects, followed by later inaccurate testimony
about how the call occurred. He did not participate in the real estate closing. Ex. B at 48-49.
He billed for one hour of work on the day of the call and follow-up memo. Dorsey received no
direct payment for that hour; the firm received less than $12,000 from Sanford and his
companies after the sale of the apartment, for prior work on matters unrelated to the January
2016 phone call. Ex. A ¶2.
B. Knopf’s Litigations Against Sanford
Knopf began her series of litigations against Sanford and his companies in 2009, and she
has been relentlessly litigating ever since. The attorney fees generated by her litigations
undoubtedly far exceed the $3 million price of Sanford’s apartment. One of Sanford’s
companies, Pursuit Holdings, LLC, had allegedly failed to repay loans and to deliver mortgages
to Knopf on two properties, one the apartment at issue here. In 2015, Knopf made several
unsuccessful attempts to impair Sanford’s ability to sell the apartment, including unsuccessful
efforts at asserting a notice of pendency, for prejudgment attachment, NYSCEF 14 ¶47, and a
preliminary injunction preventing Sanford from selling the apartment. Id.
On October 22, 2015, in a separate motion sequence, Knopf requested an interim order
from the First Department staying any sale of the apartment. Id. ¶59. At the time, Knopf’s
counsel represented to the First Department under oath that both motions sought the same
preliminary injunction, and his second motion reiterated that request and incorporated by
reference the first motion. NYSCEF 87 ¶10. The requested stay was denied, but an order
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requiring “proceeds to be placed in escrow pending further court order” was entered. NYSCEF
53. On November 12, 2015, a First Department panel denied Knopf’s July 2015 motion for a
preliminary injunction. NYSCEF 54. On December 29, 2015, without explanations, a First
Department panel denied Knopf’s October 22, 2015 motion for reargument and denied a cross-
motion by Sanford and Pursuit to vacate the October 2015 interim order. NYSCEF 55.
C. The January 2016 Phone Call to the Court Attorney
In January 2016, in connection with the anticipated sale of the apartment to Michael
Phillips, Sanford asked Akerman to contact the First Department to clarify the status of any
escrow requirement. NYSCEF 14 ¶81. Akerman had represented Sanford and Pursuit in Knopf-
related litigation but was not then otherwise involved in any pending litigation before the First
Department. Ex. C at 7-8, 42. Akerman and Feldman, Sanford’s real estate attorney, called the
First Department. NYSCEF 14 ¶88. The phone number that Akerman dialed was the direct
number for Court Attorney Melissa Ringel. NYSCEF 14 ¶¶86, 88. Neither Akerman nor
Feldman knew Ringel, and they asked for her name at the end of the call. Ex. C at 36, 47.
Akerman did not include Knopf on the call because he regarded the call as confirmation of a
non-substantive procedural matter to determine the status of the escrow order. Ex. D at 72.
Unbeknownst to Akerman and Feldman, Ringel was the wife of another Sanford attorney,
Esposito, and she had previously discussed the issue with her husband. NYSCEF 14 ¶12.
During the four-minute call, Akerman and Feldman identified themselves as Sanford’s
attorneys, identified the case index number, and asked Ringel whether the November 2015 order
had dissolved the October 2015 interim order. NYSCEF 14 ¶89; Ex. E. Ringel confirmed that
the November 2015 order was the “further court order” referenced in the October 2015 order,
and that, as a result, the November 2015 order had dissolved the October 2015 order. Ex. E.
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Three First Department Orders have held that the Court Attorney was correct and that no escrow
order was in place on January 12, 2016:
1. On June 16, 2016, the First Department denied Knopf’s motion for contempt,
explaining in the second of two orders that day that “the [October 22, 2015 TRO]
was vacated once plaintiffs’ prior motion for a preliminary injunction was
denied.” NYSCEF 24.
2. More than a year later, on November 2, 2017, the First Department denied
Knopf’s motion to vacate the second June 2016 Order because of the stated
reasoning of the order. NYSCEF 27. No further appeal from that order was
made.
3. On February 13, 2020, the First Department reversed the decision of this Court
requiring Esposito to turn over proceeds that he had received from the sale of the
apartment, similarly ruling that Esposito’s receipt of the proceeds did not violate
any escrow or other court order. NYSCEF 179.
D. The Sale of the Apartment and Subsequent Litigation
Following the January 2016 phone call, both Sanford lawyers prepared short memos
summarizing the call, the sale of the apartment closed for $3 million, and proceeds from the sale
were distributed. NYSCEF 14 ¶95. Knopf soon learned of the sale and obtained an order
compelling escrow of remaining proceeds. Id. ¶101.
In August 2016, Knopf sued Pursuit and buyer Phillips, alleging fraudulent conveyance
of the apartment to Phillips. Id. ¶120. Although not a party to the Phillips action, or acting as
anyone’s attorney in the action, Akerman was deposed. Id. ¶129. Akerman erroneously testified
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that he had called the general number for the First Department Clerk’s Office and had been
transferred to Ringel. Id.
E. The Federal Case Based on the January 2016 Phone Call
On July 10, 2017, Knopf sued Sanford, Esposito, Feldman, Akerman, and Dorsey in
federal court. Id. ¶122. The federal case asserted claims pursuant to 42 U.S.C. §1983, based on
the theory that the January 2016 phone call deprived Knopf of due process rights to participate in
the call. Id. Dorsey moved to dismiss the federal case for failure to state a claim and for
sanctions. Id. ¶131. In supporting memoranda, Dorsey repeated Akerman’s incorrect testimony
that he had called the Clerk’s general number and had been transferred to Ringel. Id. The
federal court granted the motions and awarded sanctions against Knopf’s counsel for both the
filing and a variety of related unethical acts. Id. ¶124.
After the federal court dismissal, the Inspector General of the New York State Office of
Court Administration (“OCA”) issued a report on Ringel’s conduct. NYSCEF 51. Based on
First Department telephone records, the OCA concluded that Akerman had called Ringel’s direct
line rather than the general phone number. Id. at 8-9. Dorsey then promptly obtained its own
phone records, which were consistent with the First Department records. Ex. F. Acknowledging
his erroneous testimony, Akerman submitted a May 3, 2018 Declaration in the federal case
correcting the record. NYSCEF 140 ¶7.
In the federal case, Knopf sought sanctions against Dorsey based on the allegation that
Akerman committed perjury in his Phillips deposition and in submitting that deposition
testimony to the federal court. The federal court denied Knopf’s motion, stating that it “declines
to exercise its discretion to award sanctions against the defendants.” Knopf v. Esposito, 17 Civ.
5833 (DLC), 2018 WL 3579104, at *6 (S.D.N.Y. July 25, 2018).
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Although the federal court’s dismissal order was eventually reversed by the Second
Circuit, 803 F. App’x 448 (2d Cir. 2020), Knopf did not appeal the sanctions ruling. See Knopf
v. Esposito, 17-4151 (2d Cir.) (ECF Doc. No. 30). Knopf’s AC alleging perjury by Akerman
largely replicates, often verbatim, her memorandum submitted to the federal court on her
sanctions motion. Compare NYSCEF 31 at 22-25, with NYSCEF 14 ¶129 (alleging, with quotes
from the same excerpted deposition testimony, that Akerman “made . . . materially false
statements to the effect that he had called the general number for the First Department clerk’s
office . . . and then been randomly transferred to Ringel,” and that this “testimony was not
truthful”), NYSCEF 14 ¶¶130-34 (“Based on the foregoing testimony, Akerman and Dorsey
falsely contended in their memoranda of law . . . that Akerman had called the general clerk’s
number and was ultimately, randomly and coincidentally transferred to Ringel”)). Knopf’s
Seventh Claim is thus an effort to relitigate her rejected and unappealed federal arguments.
In March 2021, all Knopf’s federal claims against Dorsey were resolved, including any
possible claim for attorneys’ fees, following Dorsey’s offer of judgment. The Stipulation of
Settlement provides that “Plaintiffs will not move in this case against Dorsey, and Dorsey will
not move in this case against Knopf, for attorneys’ fees, costs or any sanctions.” NYSCEF 1062
¶4. It also provides that “the $250,000 payment to be made by Dorsey pursuant to this
stipulation shall constitute an offset against any damages that may be awarded to Plaintiffs
against Dorsey in” this state court case. Id ¶5.
Thereafter, Feldman obtained complete summary judgment on Knopf’s federal claims
because Knopf had failed to produce sufficient evidence that Feldman knowingly joined any
alleged conspiracy. In holding that “Knopf has not identified sufficient evidence to raise an issue
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of fact that Feldman knew of the [the alleged conspiratorial] agreement,” most of the Court’s
reasoning applies equally to Akerman and Dorsey, as explained more fully in section II below.
Sanford has been deposed multiple times, and his most relevant testimony with respect to
Knopf’s charges against Akerman occurred in the second of two depositions taken on November
1, 2019, without notice to or participation by Dorsey, promptly after Knopf settled her claims
against Sanford. By that point, Sanford had no motive to protect himself or Dorsey. Sanford
testified that while he gave Akerman the Court Attorney telephone number, Akerman did not
know it was Melissa Ringel’s number. Ex. G at 6, 50-51. Sanford testified that he obtained the
number from Esposito, id. at 7, 18 and believed it was “a number for the switchboard.” Id. at 9.
Sanford’s undisputed testimony is that Akerman “never knew he was calling anyone in
particular. He was just calling a general number . . ..” Id. at 7-8. “Akerman had no idea who he
was calling,” id. at 10, and he “had no intention to do anything but just to confirm something.”
Id. at 69.
ARGUMENT
A party moving for summary judgment “must make a prima facie showing of entitlement
to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of
fact from the case.” E.g., Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). If the
moving party fails to make its prima facie showing, the court must deny the motion, regardless of
the sufficiency of the non-movant’s papers. Id. at 853. If the moving party meets its burden,
“the burden shifts to the opposing party to submit proof in admissible form sufficient to create a
question of fact requiring a trial.” Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 82,
978 N.Y.S.2d 13 (1st Dep’t 2013). When deciding cross-motions for summary judgment, the
court must construe the evidence in each case in the light most favorable to the non-moving
party. Idi Jewels, Inc. v. Abramov, 193 A.D.3d 699, 141 N.Y.S.3d 903, 906 (2d Dep’t 2021).
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The basis for every remaining claim in this case is §487. The New York Court of
Appeals has stated that “[t]he operative language at issue [in §487] —‘guilty of any deceit’—
focuses on the attorney’s intent to deceive. . . .” Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14
(2009)). That is because §487 is derived from the criminal law, and as a result, “it must be
interpreted narrowly.” Doscher v. Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 524, 48
N.Y.S.3d 593 (1st Dep’t 2017) (citing, inter alia, Amalfitano). The claims against Dorsey here
are unlike every reported decision finding liability, simply because no other case rests on an
alleged failing so limited as a single four-minute call, an accurate follow-up memo stating a legal
conclusion New York courts have held to be correct, followed by incorrect testimony about
procedural aspects of the call. Add to that limited fact pattern the absence of any direct evidence
of any conspiracy (a “conspiracy” that every alleged participant has denied) and no benefit other
than possible compensation for the single hour of work. Unlike many §487 claims, here no
client has complained about Akerman’s actions.
Underlying all Knopf’s claims is the notion that an attorney should distrust his client
rather than believe the facts the client provides. She assumes that Akerman should have been
suspicious when his client asked him to verify the status of court orders, and, having obviously
already studied the court orders himself, then provided Akerman a court phone number. That
assumption contravenes most attorneys’ standard ethical practices. As noted in a widely-cited
case, lawyers “tend to strongly believe [their] clients” and, at least in the civil bar, lawyers “tend
not, by and large, to be immediately suspicious of [clients] if they ask us to do things.” U.S. v.
Kellington, 217 F.3d 1084, 1190 (9th Cir. 2000). 4
4
The ABA Ethics Committee cites that case in its current consideration of changes to its model
rules in light of increasing money laundering and terrorist financing concerns. To guard against
such egregious violations of law, the potential changes would require due diligence procedures
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I. PRIOR COURT ORDERS COLLATERALLY ESTOP KNOPF FROM
ASSERTING HER CONSPIRACY AND DAMAGE CLAIMS
Knopf ignores the prior decisions, state and federal, rejecting her arguments. That is an
insupportable approach, because both the state court orders establishing the absence of any
operative escrow order and the federal court’s May 26, 2021 summary judgment orders are
entitled to collateral estoppel effect. Those orders preclude Knopf from relitigating (1) that an
escrow order was in place on January 12, 2016; (2) that Akerman joined a conspiracy with
Feldman when Feldman has been determined not to have participated in a conspiracy, or (3) that
she is entitled to more than $976,460.48 in damages.
Although collateral estoppel rules are substantially the same in New York and federal
courts, since the federal court’s orders were issued in a federal question case, technically federal
law governing collateral estoppel applies to the federal court orders. E.g., Niagara Mohawk
Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 755 (2d Cir. 1996);
Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 69 (2018).
Collateral estoppel applies when four conditions exist: (1) the issues in both proceedings
must be identical, (2) the issue in the prior proceeding must have been actually litigated and
decided, (3) there must have been a full and fair opportunity to litigate in the prior proceeding,
and (4) the issue previously litigated must have been necessary to support a valid and final
judgment on the merits. Bifolck v. Philip Morris USA Inc., 936 F.3d 74, 79-80 (2d Cir. 2019).
Collateral estoppel may be used by a non-party to the prior proceeding so long as those
requirements are met. See Id. at 79 (nonmutual collateral estoppel permitted under federal law);
Montesa v. Schwartz, 2015 WL 13173165, at *3 (S.D.N.Y. Sept. 22, 2015) (same); Pena v.
by attorneys in what the Committee acknowledges to be a substantial change to professional
practices.
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Preview
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NORMA KNOPF and MICHAEL KNOPF, Plaintiffs, Index No. 150315/2019 -against- IAS Part 7 FRANK M. ESPOSITO, DORSEY & WHITNEY, (Hon. Gerald Lebovits) LLP, NATHANIEL H. AKERMAN, and EDWARD S. FELDMAN, Motion Sequence No. 19 Defendants. EDWARD S. FELDMAN, Third-Party Plaintiff, -against- ERIC W. BERRY, Third-Party Defendant. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS DORSEY & WHITNEY LLP AND NATHANIEL AKERMAN’S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF NORMA KNOPF’S MOTION FOR SUMMARY JUDGMENT MORVILLO ABRAMOWITZ GRAND IASON & ANELLO P.C. 565 Fifth Avenue New York, New York 10017 (212) 856-9600 (telephone) (212) 856-9494 (facsimile) Attorneys for Defendants Dorsey & Whitney LLP and Nathaniel H. Akerman 1 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 KNOPF’S ALLEGATIONS AND THIS COURT’S PRIOR ORDERS .........................................3 UNDISPUTED FACTS ...................................................................................................................4 A. Akerman’s History ...................................................................................................4 B. Knopf’s Litigations Against Sanford .......................................................................5 C. The January 2016 Phone Call to the Court Attorney ...............................................6 D. The Sale of the Apartment and Subsequent Litigation ............................................7 E. The Federal Case Based on the January 2016 Phone Call .......................................8 ARGUMENT .................................................................................................................................10 I. PRIOR COURT ORDERS COLLATERALLY ESTOP KNOPF FROM ASSERTING HER CONSPIRACY AND DAMAGE CLAIMS ..........................12 II. THE FIRST AND SECOND CLAIMS SHOULD BE DISMISSED BECAUSE NEITHER “EGREGIOUS MISCONDUCT” NOR ANY “CHRONIC AND EXTREME PATTERN OF BEHAVIOR” EXISTS ...............14 A. The Evidence Produced for the First Claim Does Not Establish the Conduct New York Courts Require for §487 Violations ............................15 B. Actions as a Witness or Party Do Not Support §487 Liability ..................18 C. The Second Claim Should Be Dismissed Because of Collateral Estoppel and the Absence of Evidence That Akerman Knowingly Conspired With Anyone to Deprive Knopf of Her Rights..........................19 III. THE SEVENTH CLAIM SHOULD BE DISMISSED FOR AT LEAST THREE INDEPENDENTLY DISPOSITIVE REASONS ....................................21 A. Actions as a Witness or Party Cannot Support §487 Liability....................21 B. Actions in a Prior Federal Case Cannot Support §487 Liability.................22 C. The Federal Court’s Denial of Sanctions Based on Akerman’s Testimony Bars the Seventh Claim .............................................................22 i 2 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 IV. KNOPF HAS NO DAMAGES ..............................................................................24 A. Knopf Is Estopped From Claiming That Her Damages Are More Than $976,460.48 .......................................................................................24 B. Knopf Cannot Recover as Damages Other Amounts Constituting Bona Fide Payments Out of the Sale Proceeds ...........................................26 C. Knopf Owns No “Equitable Mortgage” ......................................................29 D. Knopf Cannot Recover the Grossly Disproportionate Attorneys’ Fees That She Seeks to Add as Damages ...................................................30 V. KNOPF’S SUMMARY JUDGMENT MOTION, WHICH IGNORES PRIOR COURT RULINGS AND SEEKS JUDGMENT BASED ON SPECULATION ABOUT INTENT, SHOULD BE DENIED ..............................31 CONCLUSION ..............................................................................................................................34 ii 3 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 TABLE OF AUTHORITIES Page(s) Cases Altman v. DiPreta, 204 A.D.3d 965, 168 N.Y.S.3d 86 (2d Dep’t 2022).................................................................. 18 Amalfitano v. Rosenberg, 12 N.Y.3d 8 (2009) .............................................................................................................. 11, 18 B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141 (1967) ................................................................................................................ 13 Barrows v. Alexander, 78 A.D.3d 1693, 912 N.Y.S.2d 831 (4th Dep’t 2010)............................................................... 19 Bifolck v. Philip Morris USA Inc., 936 F.3d 74 (2d Cir. 2019) ........................................................................................................ 12 Briarpatch Ltd., L.P. v. Frankfurt Garbus Klein & Selz, P.C., 13 A.D.3d 296, 787 N.Y.S.2d 267 (1st Dep’t 2004) ................................................................. 23 Brooks v. Green’s Appliances Inc., 259 A.D.2d 893, 686 N.Y.S.2d 533 (3d Dep’t 1999)................................................................ 24 Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 A.D.3d 600, 982 N.Y.S.2d 474 (1st Dep’t 2014) ............................................................... 15 Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000) ...................................................................................................... 23 Doscher v. Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 48 N.Y.S.3d 593 (1st Dep’t 2017) ............................................... 11, 18, 22, 23 Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 23 N.Y.S.3d 173 (1st Dep’t 2015) ................................................................. 15 Feinberg v. Boros, 99 A.D.3d 219, 951 N.Y.S.2d 110 (1st Dep’t 2012) ................................................................. 13 Ferring B.V. v. Serenity Pharmaceuticals, LLC, 391 F. Supp.3d 265 (S.D.N.Y. 2019) .................................................................................. 13, 14 Finance Investment Co. Ltd. v. Friedman, Leeds, Shorenstein & Armenakis, 159 A.D.2d 479, 552 N.Y.S.2d 351 (2d Dep’t 1990)................................................................ 17 iii 4 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 Franklin Development Co., Inc. v. Atlantic Mutual Insurance Co., 60 A.D.3d 897, 876 N.Y.S.2d 103 (2nd Dep’t 2009)................................................................ 14 Fremont Investment & Loan v. DelSol, 65 A.D.3d 1013, 885 N.Y.S.2d 505 (2d Dep’t 2009)................................................................ 29 Georgakis v. E. Air Lines, Inc., 512 F. Supp. 330 (E.D.N.Y. 1981) ............................................................................................ 14 Gillen v. McCarron, 126 A.D.3d 670, 6 N.Y.S.3d 253 (2d Dep’t 2015) .................................................................... 23 Idi Jewels, Inc. v. Abramov, 193 A.D.3d 699, 141 N.Y.S.3d 903 (2d Dep’t 2021)................................................................ 10 Jericho Grp. Ltd. v. Midtown Dev., L.P., 67 A.D.3d 431, 889 N.Y.S.2d 18 (1st Dep’t 2009) ................................................................... 23 Kaminsky v. Herrick, Feinstein LLP, 59 A.D.3d 1, 870 N.Y.S.2d 1 (1st Dep’t 2008) ......................................................................... 15 Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449 (1985) ................................................................................................................ 13 Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 978 N.Y.S.2d 13 (1st Dep’t 2013) ................................................................... 10 Knopf v. Esposito, 803 F. App’x 448 (2d Cir. 2020) ................................................................................................. 9 Knopf v. Esposito, 17 Civ. 5833 (DLC), 2018 WL 3579104 (S.D.N.Y. July 25, 2018) ............................... 8, 23, 24 Knopf v. Esposito, 17 Civ. 5833 (DLC), 2021 WL 2138459 (S.D.N.Y. May 26, 2021) ................................... 20, 21 Knopf v. Esposito, 17 Civ. 5833 (DLC), 2021 WL 2138460 (S.D.N.Y. May 26, 2021) .................................. Passim Knopf v. Feldman & Associates, PLLC, 180 A.D.3d 508, 115 N.Y.S.3d 875 (1st Dep’t 2020) ......................................................... 27, 28 Knopf v. Sanford, 65 Misc. 3d 463 (Sup. Ct. N.Y. Cnty. 2019) ............................................................................. 17 iv 5 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 LoSacco v. City of Middletown, 71 F.3d 88 (2d Cir. 1995) .......................................................................................................... 24 Manhattan Sports Rests. of America, LLC v. Lieu, 137 A.D.3d 504, 27 N.Y.S.3d 125 (1st Dep’t 2016) ................................................................. 19 Melcher v. Greenberg Traurig LLP, 135 A.D.3d 547, 24 N.Y.S.3d 249 (1st Dep’t 2016) ................................................................. 31 Montesa v. Schwartz, 2015 WL 13173165 (S.D.N.Y. Sept. 22, 2015) ........................................................................ 13 New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp., 153 A.D.3d 1351, 61 N.Y.S.3d 136 (2d Dep’t 2017)................................................................ 16 Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747 (2d Cir. 1996) ........................................................................................................ 12 Pallian v. MetLife Bank, 2013 U.S. Dist. LEXIS 87561 (E.D.N.Y. June 21, 2013) ......................................................... 29 Pannone v. Silberstein, 118 A.D.3d 413, 990 N.Y.S.2d 164 (1st Dep’t 2014) ............................................................... 15 Pantoja v. Scott, 2001 WL 1313358 (S.D.N.Y. Oct. 26, 2001) ............................................................................ 14 Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64 (2018) ............................................................................................................ 12, 13 Pena v. Travis, 2002 WL 31886175 (S.D.N.Y. Dec. 27, 2002) ......................................................................... 13 Philip S. Schwartzman, Inc. v. Pliskin, Rubano, Baum & Vitulli, 215 A.D.3d 699, 187 N.Y.S.3d 702 (2d Dep’t 2023)................................................................ 24 Pinkesz Mut. Holdings, LLC v Pinkesz, 198 A.D.3d 693, 156 N.Y.S.3d 216 (2d Dep’t 2021)................................................................ 19 Schwartz v. Public Adm’r of Bronx County, 24 N.Y.2d 65 (1969) .................................................................................................................. 13 Seldon v Spinnell, 95 A.D. 3d 779, 945 N.Y.S.2d 666 (1st Dep’t 2012) ................................................................ 18 v 6 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 Shawe v. Elting, 161 A.D.3d 585, 77 N.Y.S.3d 400 (1st Dep’t 2018) ................................................................. 15 Soc’y v. City of Buffalo, 689 F.3d 263 (2d Cir. 2012) ...................................................................................................... 23 Strumwasser v. Zeiderman, 102 A.D.3d 630, 958 N.Y.S.2d 395 (1st Dep’t 2013) ............................................................... 15 Tepper v. Bendell, 2002 WL 31729601 (S.D.N.Y. Dec. 5, 2002) ........................................................................... 13 U.S. Dept. of Justice v. Hudson, 2007 WL 2461783 (N.D.N.Y. Aug. 24, 2007) .......................................................................... 14 U.S. v. Kellington, 217 F.3d 1084 (9th Cir. 2000) ................................................................................................... 12 Wilson v. Dantas, 29 N.Y.3d 1051 (2017) .............................................................................................................. 13 Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851 (1985) ................................................................................................................ 10 Statutes 42 U.S.C. §1983 .............................................................................................................................. 8 vi 7 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 PRELIMINARY STATEMENT Defendants Nathaniel Akerman and Dorsey & Whitney LLP (together, “Dorsey”) submit this memorandum in support of their motion for summary judgment on the three remaining claims in Norma Knopf’s 1 Amended Complaint (“AC”) and in opposition to Knopf’s motion for summary judgment. These are the three remaining claims: • The First Claim, alleging violations of Judiciary Law §487 before October 13, 2017; • The Second Claim, alleging conspiracy to violate §487; and • The Seventh Claim, alleging violations of §487, based on events in the parallel federal civil rights action, now settled with respect to Dorsey. Knopf’s claims all arise out of a four-minute call over seven years ago by Akerman and Defendant Edward Feldman on behalf of their client Michael Sanford to a Court Attorney in the First Department. Their purpose was to ascertain the procedural status of court orders relating to sales proceeds of Sanford’s Manhattan apartment. The call was followed by Akerman’s short memo and subsequent testimony by Akerman and others reporting the results of the call. Akerman’s initial testimony about how his call reached the Court Attorney was incorrect but was corrected promptly once telephone records establishing his error were voluntarily obtained by Dorsey. Years of aggressive discovery by Knopf’s counsel, with multiple depositions of every relevant witness, have surely unearthed every possible available fact about Akerman’s four- minute call and its aftermath. All that discovery has produced no evidence to rebut the conclusions that Akerman lacked any knowledge of the Court Attorney’s marriage to Sanford 1 During much of the relevant period, Ms. Knopf’s deceased husband was also a plaintiff. For simplicity, the two together or she alone are referred to as “Knopf.” 8 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 attorney Frank Esposito. Akerman had never met or spoken to the Court Attorney or her husband, and he had never talked to his supposed co-conspirator Feldman other than a few communications relating to the short call. If, as the District Attorney has charged in the criminal case scheduled for trial this fall, the Court Attorney and her husband conspired to commit wrongdoing, Akerman was an unwitting tool, perhaps one with insufficient skepticism and imperfect memory, that others used for that effort. That is why Akerman is a witness, not a target, in the criminal trial scheduled for September. No plausible motive to join a conspiracy with other attorneys he did not know to obtain approximately one hour of billable time has ever appeared, especially for a respected attorney with decades of unblemished legal practice. Dorsey seeks summary judgment, for these reasons: 1. As to the First Claim: Akerman’s four-minute phone call, follow-up memo, and incorrect deposition testimony do not constitute the level or pattern of conduct or intent to deceive that New York courts require before imposing §487 liability. 2. As to the Second Claim alleging conspiracy: Whoever else might have “conspired,” no evidence indicates that Akerman knowingly participated. Like Feldman, to whom the federal court has already granted summary judgment on Knopf’s parallel conspiracy claim, Akerman was not part of any conspiracy. 3. As to the Seventh Claim: New York law establishes that conduct as a witness or party, even when the witness or party is a lawyer, cannot establish §487 liability. Nor can actions before a federal court—a fortiori, a resolved case including an unappealed rejection of Knopf’s request for sanctions— form the basis for a §487 claim. 2 9 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 4. As to all claims: Collateral estoppel combined with uncontradicted evidence establishes that Knopf has no remaining damage claim. She has already recovered more than she is entitled to. As a matter of law, there was no operative escrow order prohibiting distribution of sale proceeds. This Court has nonetheless noted, with Knopf, that Knopf could potentially have been harmed by her exclusion from the January 2016 call because she might have obtained a new escrow order. But both the Appellate Division and the federal court have held that she has no “equitable lien” rights that would give her rights over other creditors. Indeed, she intentionally forewent any effort to obtain a mortgage. In addition, collateral estoppel from the parallel federal case establishes that Knopf’s damages total less than $1 million before multiple exclusions are added in, and indisputable facts wholly eliminate her remaining claim. 5. Knopf is not entitled to summary judgment on any claim for the reasons stated in support of Dorsey’s own motion and because a summary judgment motion relying on invidious speculations about Akerman’s intent—the central element of a §487 claim—is improper. KNOPF’S ALLEGATIONS AND THIS COURT’S PRIOR ORDERS Knopf’s AC asserted five causes of action against Dorsey. NYSCEF 14 ¶¶185-208, 243- 58, 276-84. On March 4, 2021, this Court issued its Decision and Order granting in part and denying in part Dorsey’s motion to dismiss. NYSCEF 305. The Court dismissed one fraud- 3 10 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 based claim and a claim for a declaratory judgment. Three claims—the First, Second, and Seventh, asserting violations of §487—remain. 2 The record has been exhaustively enlarged since that time. Though at the motion to dismiss stage this Court ruled that Knopf had sufficiently alleged that “Akerman knowingly helped Sanford, his client, evade a court order” by getting a First Department court attorney to render an “(incorrect) legal opinion,” id. at 47, three appellate rulings surely undercut that conclusion now. Dorsey contends that Knopf’s assumption has been wholly invalidated. In any event, when three panels of the Appellate Division have ruled that no escrow order was in place at the time of the call, at the very least it has to be said that no violation of any court order sufficient to support a §487 violation could be deemed clear. Knopf and this Court have hypothesized that had Knopf’s attorney been present on the call, she could have sought another escrow order, as she in fact did. But all such an order would have meant is that a court would have sorted out who was entitled to what share of the apartment proceeds. Since Knopf had no recorded mortgage, no plausible “equitable mortgage,” or other lien right, and other creditors did have lien or other formalized rights, the result of such sorting out would have been that Knopf would have received no more than she already has. UNDISPUTED FACTS A. Akerman’s History In over forty years as a member of the New York Bar, Akerman has never been the subject of any disciplinary action. Ex. A 3 ¶1. He has been a commentator on public affairs and 2 The Court’s decision not to dismiss those three Claims remains on appeal, fully briefed but not yet scheduled for argument after transfer to the Second Department. 3 References herein to “Ex._” are to the exhibits to the Affirmation of Edward M. Spiro, dated June 16, 2023, filed in conjunction with this memorandum. 4 11 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 has written three pieces published on the op-ed page of the New York Times, among other publications. Id. Akerman’s role in the events giving rise to this case consisted of a four-minute telephone call, a memo to his client accurate in substantive respects, followed by later inaccurate testimony about how the call occurred. He did not participate in the real estate closing. Ex. B at 48-49. He billed for one hour of work on the day of the call and follow-up memo. Dorsey received no direct payment for that hour; the firm received less than $12,000 from Sanford and his companies after the sale of the apartment, for prior work on matters unrelated to the January 2016 phone call. Ex. A ¶2. B. Knopf’s Litigations Against Sanford Knopf began her series of litigations against Sanford and his companies in 2009, and she has been relentlessly litigating ever since. The attorney fees generated by her litigations undoubtedly far exceed the $3 million price of Sanford’s apartment. One of Sanford’s companies, Pursuit Holdings, LLC, had allegedly failed to repay loans and to deliver mortgages to Knopf on two properties, one the apartment at issue here. In 2015, Knopf made several unsuccessful attempts to impair Sanford’s ability to sell the apartment, including unsuccessful efforts at asserting a notice of pendency, for prejudgment attachment, NYSCEF 14 ¶47, and a preliminary injunction preventing Sanford from selling the apartment. Id. On October 22, 2015, in a separate motion sequence, Knopf requested an interim order from the First Department staying any sale of the apartment. Id. ¶59. At the time, Knopf’s counsel represented to the First Department under oath that both motions sought the same preliminary injunction, and his second motion reiterated that request and incorporated by reference the first motion. NYSCEF 87 ¶10. The requested stay was denied, but an order 5 12 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 requiring “proceeds to be placed in escrow pending further court order” was entered. NYSCEF 53. On November 12, 2015, a First Department panel denied Knopf’s July 2015 motion for a preliminary injunction. NYSCEF 54. On December 29, 2015, without explanations, a First Department panel denied Knopf’s October 22, 2015 motion for reargument and denied a cross- motion by Sanford and Pursuit to vacate the October 2015 interim order. NYSCEF 55. C. The January 2016 Phone Call to the Court Attorney In January 2016, in connection with the anticipated sale of the apartment to Michael Phillips, Sanford asked Akerman to contact the First Department to clarify the status of any escrow requirement. NYSCEF 14 ¶81. Akerman had represented Sanford and Pursuit in Knopf- related litigation but was not then otherwise involved in any pending litigation before the First Department. Ex. C at 7-8, 42. Akerman and Feldman, Sanford’s real estate attorney, called the First Department. NYSCEF 14 ¶88. The phone number that Akerman dialed was the direct number for Court Attorney Melissa Ringel. NYSCEF 14 ¶¶86, 88. Neither Akerman nor Feldman knew Ringel, and they asked for her name at the end of the call. Ex. C at 36, 47. Akerman did not include Knopf on the call because he regarded the call as confirmation of a non-substantive procedural matter to determine the status of the escrow order. Ex. D at 72. Unbeknownst to Akerman and Feldman, Ringel was the wife of another Sanford attorney, Esposito, and she had previously discussed the issue with her husband. NYSCEF 14 ¶12. During the four-minute call, Akerman and Feldman identified themselves as Sanford’s attorneys, identified the case index number, and asked Ringel whether the November 2015 order had dissolved the October 2015 interim order. NYSCEF 14 ¶89; Ex. E. Ringel confirmed that the November 2015 order was the “further court order” referenced in the October 2015 order, and that, as a result, the November 2015 order had dissolved the October 2015 order. Ex. E. 6 13 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 Three First Department Orders have held that the Court Attorney was correct and that no escrow order was in place on January 12, 2016: 1. On June 16, 2016, the First Department denied Knopf’s motion for contempt, explaining in the second of two orders that day that “the [October 22, 2015 TRO] was vacated once plaintiffs’ prior motion for a preliminary injunction was denied.” NYSCEF 24. 2. More than a year later, on November 2, 2017, the First Department denied Knopf’s motion to vacate the second June 2016 Order because of the stated reasoning of the order. NYSCEF 27. No further appeal from that order was made. 3. On February 13, 2020, the First Department reversed the decision of this Court requiring Esposito to turn over proceeds that he had received from the sale of the apartment, similarly ruling that Esposito’s receipt of the proceeds did not violate any escrow or other court order. NYSCEF 179. D. The Sale of the Apartment and Subsequent Litigation Following the January 2016 phone call, both Sanford lawyers prepared short memos summarizing the call, the sale of the apartment closed for $3 million, and proceeds from the sale were distributed. NYSCEF 14 ¶95. Knopf soon learned of the sale and obtained an order compelling escrow of remaining proceeds. Id. ¶101. In August 2016, Knopf sued Pursuit and buyer Phillips, alleging fraudulent conveyance of the apartment to Phillips. Id. ¶120. Although not a party to the Phillips action, or acting as anyone’s attorney in the action, Akerman was deposed. Id. ¶129. Akerman erroneously testified 7 14 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 that he had called the general number for the First Department Clerk’s Office and had been transferred to Ringel. Id. E. The Federal Case Based on the January 2016 Phone Call On July 10, 2017, Knopf sued Sanford, Esposito, Feldman, Akerman, and Dorsey in federal court. Id. ¶122. The federal case asserted claims pursuant to 42 U.S.C. §1983, based on the theory that the January 2016 phone call deprived Knopf of due process rights to participate in the call. Id. Dorsey moved to dismiss the federal case for failure to state a claim and for sanctions. Id. ¶131. In supporting memoranda, Dorsey repeated Akerman’s incorrect testimony that he had called the Clerk’s general number and had been transferred to Ringel. Id. The federal court granted the motions and awarded sanctions against Knopf’s counsel for both the filing and a variety of related unethical acts. Id. ¶124. After the federal court dismissal, the Inspector General of the New York State Office of Court Administration (“OCA”) issued a report on Ringel’s conduct. NYSCEF 51. Based on First Department telephone records, the OCA concluded that Akerman had called Ringel’s direct line rather than the general phone number. Id. at 8-9. Dorsey then promptly obtained its own phone records, which were consistent with the First Department records. Ex. F. Acknowledging his erroneous testimony, Akerman submitted a May 3, 2018 Declaration in the federal case correcting the record. NYSCEF 140 ¶7. In the federal case, Knopf sought sanctions against Dorsey based on the allegation that Akerman committed perjury in his Phillips deposition and in submitting that deposition testimony to the federal court. The federal court denied Knopf’s motion, stating that it “declines to exercise its discretion to award sanctions against the defendants.” Knopf v. Esposito, 17 Civ. 5833 (DLC), 2018 WL 3579104, at *6 (S.D.N.Y. July 25, 2018). 8 15 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 Although the federal court’s dismissal order was eventually reversed by the Second Circuit, 803 F. App’x 448 (2d Cir. 2020), Knopf did not appeal the sanctions ruling. See Knopf v. Esposito, 17-4151 (2d Cir.) (ECF Doc. No. 30). Knopf’s AC alleging perjury by Akerman largely replicates, often verbatim, her memorandum submitted to the federal court on her sanctions motion. Compare NYSCEF 31 at 22-25, with NYSCEF 14 ¶129 (alleging, with quotes from the same excerpted deposition testimony, that Akerman “made . . . materially false statements to the effect that he had called the general number for the First Department clerk’s office . . . and then been randomly transferred to Ringel,” and that this “testimony was not truthful”), NYSCEF 14 ¶¶130-34 (“Based on the foregoing testimony, Akerman and Dorsey falsely contended in their memoranda of law . . . that Akerman had called the general clerk’s number and was ultimately, randomly and coincidentally transferred to Ringel”)). Knopf’s Seventh Claim is thus an effort to relitigate her rejected and unappealed federal arguments. In March 2021, all Knopf’s federal claims against Dorsey were resolved, including any possible claim for attorneys’ fees, following Dorsey’s offer of judgment. The Stipulation of Settlement provides that “Plaintiffs will not move in this case against Dorsey, and Dorsey will not move in this case against Knopf, for attorneys’ fees, costs or any sanctions.” NYSCEF 1062 ¶4. It also provides that “the $250,000 payment to be made by Dorsey pursuant to this stipulation shall constitute an offset against any damages that may be awarded to Plaintiffs against Dorsey in” this state court case. Id ¶5. Thereafter, Feldman obtained complete summary judgment on Knopf’s federal claims because Knopf had failed to produce sufficient evidence that Feldman knowingly joined any alleged conspiracy. In holding that “Knopf has not identified sufficient evidence to raise an issue 9 16 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 of fact that Feldman knew of the [the alleged conspiratorial] agreement,” most of the Court’s reasoning applies equally to Akerman and Dorsey, as explained more fully in section II below. Sanford has been deposed multiple times, and his most relevant testimony with respect to Knopf’s charges against Akerman occurred in the second of two depositions taken on November 1, 2019, without notice to or participation by Dorsey, promptly after Knopf settled her claims against Sanford. By that point, Sanford had no motive to protect himself or Dorsey. Sanford testified that while he gave Akerman the Court Attorney telephone number, Akerman did not know it was Melissa Ringel’s number. Ex. G at 6, 50-51. Sanford testified that he obtained the number from Esposito, id. at 7, 18 and believed it was “a number for the switchboard.” Id. at 9. Sanford’s undisputed testimony is that Akerman “never knew he was calling anyone in particular. He was just calling a general number . . ..” Id. at 7-8. “Akerman had no idea who he was calling,” id. at 10, and he “had no intention to do anything but just to confirm something.” Id. at 69. ARGUMENT A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” E.g., Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). If the moving party fails to make its prima facie showing, the court must deny the motion, regardless of the sufficiency of the non-movant’s papers. Id. at 853. If the moving party meets its burden, “the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial.” Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 82, 978 N.Y.S.2d 13 (1st Dep’t 2013). When deciding cross-motions for summary judgment, the court must construe the evidence in each case in the light most favorable to the non-moving party. Idi Jewels, Inc. v. Abramov, 193 A.D.3d 699, 141 N.Y.S.3d 903, 906 (2d Dep’t 2021). 10 17 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 The basis for every remaining claim in this case is §487. The New York Court of Appeals has stated that “[t]he operative language at issue [in §487] —‘guilty of any deceit’— focuses on the attorney’s intent to deceive. . . .” Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 (2009)). That is because §487 is derived from the criminal law, and as a result, “it must be interpreted narrowly.” Doscher v. Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 524, 48 N.Y.S.3d 593 (1st Dep’t 2017) (citing, inter alia, Amalfitano). The claims against Dorsey here are unlike every reported decision finding liability, simply because no other case rests on an alleged failing so limited as a single four-minute call, an accurate follow-up memo stating a legal conclusion New York courts have held to be correct, followed by incorrect testimony about procedural aspects of the call. Add to that limited fact pattern the absence of any direct evidence of any conspiracy (a “conspiracy” that every alleged participant has denied) and no benefit other than possible compensation for the single hour of work. Unlike many §487 claims, here no client has complained about Akerman’s actions. Underlying all Knopf’s claims is the notion that an attorney should distrust his client rather than believe the facts the client provides. She assumes that Akerman should have been suspicious when his client asked him to verify the status of court orders, and, having obviously already studied the court orders himself, then provided Akerman a court phone number. That assumption contravenes most attorneys’ standard ethical practices. As noted in a widely-cited case, lawyers “tend to strongly believe [their] clients” and, at least in the civil bar, lawyers “tend not, by and large, to be immediately suspicious of [clients] if they ask us to do things.” U.S. v. Kellington, 217 F.3d 1084, 1190 (9th Cir. 2000). 4 4 The ABA Ethics Committee cites that case in its current consideration of changes to its model rules in light of increasing money laundering and terrorist financing concerns. To guard against such egregious violations of law, the potential changes would require due diligence procedures 11 18 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1163 RECEIVED NYSCEF: 06/16/2023 I. PRIOR COURT ORDERS COLLATERALLY ESTOP KNOPF FROM ASSERTING HER CONSPIRACY AND DAMAGE CLAIMS Knopf ignores the prior decisions, state and federal, rejecting her arguments. That is an insupportable approach, because both the state court orders establishing the absence of any operative escrow order and the federal court’s May 26, 2021 summary judgment orders are entitled to collateral estoppel effect. Those orders preclude Knopf from relitigating (1) that an escrow order was in place on January 12, 2016; (2) that Akerman joined a conspiracy with Feldman when Feldman has been determined not to have participated in a conspiracy, or (3) that she is entitled to more than $976,460.48 in damages. Although collateral estoppel rules are substantially the same in New York and federal courts, since the federal court’s orders were issued in a federal question case, technically federal law governing collateral estoppel applies to the federal court orders. E.g., Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 755 (2d Cir. 1996); Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 69 (2018). Collateral estoppel applies when four conditions exist: (1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and decided, (3) there must have been a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits. Bifolck v. Philip Morris USA Inc., 936 F.3d 74, 79-80 (2d Cir. 2019). Collateral estoppel may be used by a non-party to the prior proceeding so long as those requirements are met. See Id. at 79 (nonmutual collateral estoppel permitted under federal law); Montesa v. Schwartz, 2015 WL 13173165, at *3 (S.D.N.Y. Sept. 22, 2015) (same); Pena v. by attorneys in what the Committee acknowledges to be a substantial change to professional practices. 12 19 of 41 FILED: NEW YORK COUNTY CLERK 06/16/2023 10:49 PM