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FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Index No.
In the Matter of the Application of
RUSSELL M. WOODS, GAVIN I.
HANDWERKER, AND BRAMNICK,
RODRIGUEZ, GRABAS, ARNOLD &
MANGAN, LLC,
Petitioners,
To Enforce a Subpoena for the Documents and
Testimony of
STACY LEIGH,
Respondent.
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MEMORANDUM OF LAW IN SUPPORT OF PETITION TO ENFORCE SUBPOENA
TO STACY LEIGH
On the Brief:
David M. Dugan, Esq.
CHIESA SHAHINIAN & GIANTOMASI PC
11 Times Square, 34th Floor
New York, New York 10036
(212) 973-0572
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS AND PROCEDURAL HISTORY...................................................... 3
LEGAL ARGUMENT .................................................................................................................... 5
I. THE COURT SHOULD COMPEL RESPONDENT TO COMPLY WITH
THE SUBPOENA............................................................................................................... 5
A. THE SUBPOENA MEETS THE CPLR’S PROCEDURAL NOTICE
REQUIREMENTS.................................................................................................. 6
B. THE DISCOVERY PETITIONERS SEEK IS RELEVANT AND
MATERIAL ............................................................................................................ 7
II. THE COURT SHOULD HOLD RESPONDENT IN CONTEMPT AND
AWARD PETITIONERS THEIR ATTORNEYS’ FEES AND COSTS
INCURRED IN SEEKING TO ENFORCE THIS SUBPOENA ....................................... 8
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TABLE OF AUTHORITIES
Page(s)
Cases
Cortez v. Gindhart,
435 N.J. Super. 589 (App. Div. 2014) .......................................................................................7
Impact Car Park, LLC v Mut. Redevelopment Houses, Inc.,
2021 N.Y. Slip Op. 30950[U] [N.Y. Sup Ct, New York County 2021] ....................................8
Vaisman v Vil. of Croton-on-Hudson,
76 Misc 3d 1214(A) [Sup Ct 2022] ...........................................................................................7
Velez v Hunts Point Multi-Serv. Ctr., Inc.,
29 AD3d 104 [1st Dept 2006]....................................................................................................6
Statutes
Judiciary Law § 773 .........................................................................................................................8
Uniform Interstate Depositions and Discovery Act .........................................................................3
Other Authorities
CPLR § 2308....................................................................................................................................8
CPLR § 3101................................................................................................................................6, 7
CPLR § 3102....................................................................................................................................5
CPLR § 3119....................................................................................................................................3
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PRELIMINARY STATEMENT
Petitioners Russell M. Woods, Gavin I. Handwerker and Bramnick, Rodriguez, Grabas,
Arnold & Mangan, LLC (the “Bramnick Firm”) (collectively, “Petitioners”) are seeking to enforce
a straightforward Subpoena requesting limited documents and a Zoom deposition from
Respondent Stacy Leigh (“Respondent”) in connection with a legal malpractice action against
Petitioners pending in New Jersey. Despite Petitioners’ demonstrated efforts to explain why they
need this plainly relevant discovery and Petitioners’ attempts to minimize the resulting
inconvenience to Respondent, she has refused without justification to comply, necessitating this
application.
The legal malpractice action arises out of a lawsuit Respondent filed in this Court against
Sean Nicholas and Castor and Pollux (the “Castor Parties”) entitled, Stacy Leigh v. Castor and
Pollux Ltd. LLC d/b/a Castor Gallery, Index No. 654923/2017 (the “Underlying Action”). The
Bramnick Firm represented the Castor Parties in the Underlying Action. Respondent obtained a
judgment against the Castor Parties based on, among other things, their failure to pay commissions
due and owing to Respondent for the Castor Parties’ sale of Respondent’s artwork, for damaging
other of Respondent’s artwork and for punitive damages and attorneys’ fees. In the malpractice
action, the Castor Parties seek to hold Petitioners liable for Respondent’s judgment against them
based on what the Castor Parties claim was Petitioners’ inadequate defense against Respondent’s
claims.
Petitioners domesticated and served a Subpoena on Respondent seeking testimony and a
narrow set of documents that are relevant and material to at least one of Petitioners’ defenses to
the malpractice claims: that Respondent’s claims against the Castor Parties were indefensible and
that any purported malpractice on Petitioners’ part was, therefore, not the proximate cause of their
damages – a well-recognized defense under New Jersey law. Toward that end, Petitioners seek
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discovery concerning, among other things, the Castor Parties’ treatment of Respondent, their
failure to return her artwork and pay commissions despite Respondent’s multiple demands, the
value of the unreturned artwork and certain statements they made to Respondent that would have
undermined the Castor Parties’ alleged defenses to those claims.
As set forth below, the Castor Parties’ malpractice claims are based on Mr. Woods’ and
his co-counsel Mr. Wise’s allegedly allowing Respondent to obtain a default judgment against
them instead of fully litigating the matter. Putting aside the reasons the default judgment occurred
(which is not relevant to the discovery Petitioners seek from Respondent), the Castor Parties must
prove that, had the matter been fully litigated without the alleged malpractice, they would have
obtained a more favorable result than that which occurred. Petitioners are entitled to demonstrate
the Castor Parties would have been liable regardless but cannot do so without a fuller record that
did not develop as a result of the default judgments.
Despite the relevance as explained above and previously to Respondent’s counsel, and
despite Petitioners’ expressed willingness to accommodate Respondent however reasonably
possible, Respondent has refused to comply with the Subpoena based on purported procedural and
substantive objections. Aside from incorrectly arguing the Subpoena seeks irrelevant discovery (a
contention addressed above), Respondent incorrectly argues the Subpoena is procedurally
defective because it does not adequately explain the purpose for which Petitioners seek the
documents. That argument fails for several reasons. First, the Subpoena itself does provide a brief
but adequate explanation. Second, Respondent and her counsel (who represented Respondent in
the Underlying Action) are closely familiar with the parties and facts involved in the Underlying
Action, and, in turn, how the Underlying Action relates to the resulting malpractice action. Third,
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as set forth below, Petitioners further explained to Respondent’s counsel both verbally and in
writing the relevance and purpose of the discovery they seek.
In reality, it appears Respondent’s primary issue is that she does not want to deal with the
issues stemming from her own Underlying Action anymore. That desire is understandable, but it
is not a basis for refusing to comply with a validly issued subpoena seeking narrow and plainly
relevant information. As such, Respondent’s repeated failure to comply with the Subpoena is
unwarranted, and this Court should exercise its authority to enforce the Subpoena, find Respondent
in contempt, and award Petitioners their attorneys’ fees and costs incurred in bringing this
proceeding.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In the interest of brevity, Petitioners will set forth only the facts and procedural background
relevant to this application. The discovery Petitioners seek from Respondent is in connection with
an action pending in New Jersey Superior Court entitled Nicholas, et al. v. Woods, et al., Docket
No. ESX-L-307-22 (the “Malpractice Action”). The Castor Parties filed the Malpractice Action
on January 13, 2022 against Petitioners and other defendants. (See Verified Petition dated June 26,
2023 (“Pet.”) at ¶ 6, Ex. A). The Castor Parties’ claims against Petitioners in the Malpractice
Action are based on alleged legal malpractice in the handling of the Underlying Action and certain
other matters in which Petitioners served (or in one case allegedly served) as defense counsel for
the Castor Parties. (Id. at ¶¶ 7-8).
On January 23, 2023, Petitioners (through counsel) issued a Subpoena Duces Tecum and
Ad Testificandum to Respondent pursuant to the Uniform Interstate Depositions and Discovery
Act, as adopted by New York and codified at CPLR § 3119 (the “Subpoena”). (Id. at ¶ 9, Ex. B).
The face of the Subpoena indicated that it was being served on behalf of Petitioners in connection
with the captioned Malpractice Action. (Id.) The accompanying cover letter also stated that the
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Castor Parties had filed a lawsuit against their former attorneys, including Petitioners. (Id.) The
Subpoena seeks Respondent’s deposition testimony and the production of three narrowly tailored
categories of documents. (Id.) The Subpoena was personally served on Respondent on January
24, 2023. (Id. at ¶ 10, Ex. C).
On January 26, 2023, Respondent’s counsel emailed Petitioners’ counsel requesting that
all future correspondence be directed to his office. (Id. at ¶ 11, Ex. D). On January 30, 2023,
Petitioners’ counsel requested Respondent’s counsel provide available dates for Respondent to
appear for her deposition. (Id. at ¶ 12, Ex. D). On the same date, Respondent’s counsel responded
and asserted that Respondent should not need to produce documents or give testimony because she
was already put through “trauma” in the Underlying Action. (Id. at ¶ 13, Ex. D). His temperament
and our disagreement with his assertions aside, Respondent’s counsel demonstrated an
understanding of the Underlying Action and Malpractice Action and Petitioners’ involvement in
same by stating:
[Respondent] was brutally victimized by the Castor defendants from
whom she has yet to receive even $1 of the judgment awarded to her
two years ago next month. This after three years of litigation marred
by delay tactics and evasiveness on the part of the Castor defendants,
exacerbated by counsel against whom the malpractice action is now
pending, and where all efforts to enforce the judgment have been
obstructed by the Castor defendants and the now three different law
firms representing them (starting with the Bramnick Firm).
(Pet. at Ex. D).
The parties agreed to put the Subpoena on hold while the parties explored settlement
options. (Pet. at ¶ 15). On May 24, 2023, after it appeared those efforts had not gained traction
among the parties to the Malpractice Action, Petitioners’ counsel followed up with Respondent’s
counsel for dates for Respondent to produce the requested documents and appear for deposition.
(Id. at ¶ 16, Ex. D). On June 1, 2023, Respondent’s counsel raised unspecified procedural and
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substantive objections to the Subpoena. (Id. at ¶ 17, Ex. D). Petitioners’ counsel responded that
Petitioners are entitled to the discovery requested from Respondent and that conducting the
deposition by agreement would be more efficient than engaging in motion practice. (Id. at ¶ 18,
Ex. D).
On June 8, 2023, Petitioners’ counsel followed up with Respondent’s counsel again asking
for dates whereby Respondent will produce the requested documents and appear for her deposition
and noting that a resolution must be reached by agreement or by motion. (Id. at ¶ 19, Ex. D).
Respondent’s counsel replied and asserted that the Subpoena is procedurally deficient for failing
to state the purpose for which the documents are sought. (Id. at ¶ 20, Ex. D). By way of letter
dated June 16, 2023, Petitioners’ counsel addressed Respondent’s counsel’s substantive and
procedural objections to the Subpoena. (Id. at ¶ 21, Ex. E).
To date, Respondent has not complied with the Subpoena to produce the requested
documents or give testimony. (Id. at ¶ 22). The current discovery end date in the Malpractice
Action is July 23, 2023. (Id. at ¶ 23).
LEGAL ARGUMENT
I. THE COURT SHOULD COMPEL RESPONDENT TO COMPLY WITH THE
SUBPOENA
This Court should exercise its authority to compel Respondent to comply with the
Subpoena – which seeks limited documents and what should be a brief Zoom deposition. The
CPLR allows a party to apply to this Court for an order to enforce an out-of-state subpoena and
for this Court to make any appropriate order to compel the deposition of a witness in this state
sought in connection with an action pending in another jurisdiction. CPLR §§ 3102(e) & 3119(e).
As set forth below, the Subpoena is valid, and the discovery sought from Respondent is relevant
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and material to the Malpractice Action. Therefore, the Court should enter an Order compelling
Respondent to produce the documents and give the testimony requested in the Subpoena.
A. The Subpoena Meets the CPLR’s Procedural Notice Requirements
Respondent has not identified any procedural defects that would render the Subpoena
unenforceable. Respondent’s counsel claims only that the Subpoena fails to set forth the purpose
for the documents requested. Presumably, Respondent is referring to CPLR § 3101(a)(4), but
counsel’s reliance on that provision is misplaced given the circumstances in this case.
First, the Subpoena complies with CPLR § 3101(a)(4) because the face of the Subpoena
indicates that Petitioners are seeking Respondent’s testimony and documents in connection with
the captioned Malpractice Action. The cover letter accompanying the Subpoena further explains
that the Castor Parties have sued their former attorneys, including Petitioners. Thus, the Subpoena
itself provides adequate notice that Petitioners seek the documents for the purpose of discovery in
the Malpractice Action.
Respondent and her counsel cannot plausibly plead ignorance of the Subpoena’s purpose.
New York courts have explained that the notice requirement in CPLR § 3101(a)(4) is intended “to
afford a nonparty who has no idea of the parties’ dispute or a party affected by such request an
opportunity to decide how to respond.” Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104,
110-11 [1st Dept 2006] (holding that even though the requisite notice was not on the face of the
subpoena, the evidence presented in the motion papers warranted denial of the motion to quash).
Respondent and her counsel are very familiar with the Castor Parties from their involvement in
the Underlying Action. Counsel’s correspondence makes clear that Respondent knows Petitioners
represented the Castor Parties in the Underlying Action and that the Castor Parties have now sued
Petitioners for legal malpractice. Petitioners have also advised Respondent’s counsel in oral and
written communications since the service of the Subpoena why they are seeking the documents
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and testimony in question. As such, Petitioners have provided more than adequate notice in
compliance with CPLR § 3101(a)(4).
B. The Discovery Petitioners Seek is Relevant and Material
The discovery Petitioners seek through the Subpoena is material to Petitioners’ defense of
the Malpractice Action. New York applies a liberal discovery standard, and Respondent, as the
nonparty objecting to a subpoena, has the burden of establishing the requested disclosure is utterly
irrelevant to the action or that “the futility of the process to uncover anything legitimate is
inevitable or obvious.” Vaisman v Vil. of Croton-on-Hudson, 76 Misc 3d 1214(A) [Sup Ct 2022]
(citing U.S. Bank Trust, N.A. v. Carter, 204 AD3d 727, 729 [2d Dept 2022]; George v Victoria
Albi, Inc., 148 AD3d 1120, 1121 [2d Dept 2017]). Respondent cannot show that the testimony
and documents requested from her are irrelevant to the Malpractice Action.
To prevail in the Malpractice Action, the Castor Parties must prove that their loss was
proximately caused by Petitioners’ alleged malpractice or that they would have prevailed or had a
materially different result in the Underlying Action but for the alleged malpractice. See Cortez v.
Gindhart, 435 N.J. Super. 589, 603-04 (App. Div. 2014). The discovery Petitioners seek from
Respondent, the plaintiff in one of the underlying lawsuits on which the Malpractice Action is
based, goes to the heart of this issue. The requested communications, photographs and inquest
hearing exhibits requested in the Subpoena to Respondent are relevant to Petitioners’ defense of
the Malpractice Action to demonstrate that the Castor Parties would have been liable for damages
to Respondent regardless of Petitioners’ purported malpractice (which allegations Petitioners deny
in any event). This approach is often referred to as a “suit within a suit” and requires a presentation
during the trial on the malpractice claims of the merits of the underlying action. Otherwise stated,
if Respondent would have prevailed following a fully contested trial in the Underlying Action in
any event, there can be no malpractice claim – or, at a minimum, any damages conceivably
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recoverable in the Malpractice Action would be reduced to the extent the Castor Parties would
have been found liable to Respondent in the Underlying Litigation.
Contrary to Respondent’s counsel’s previously expressed position, simply relying on the
record from the Underlying Action will not afford sufficient discovery because that case did not
ultimately proceed to trial and the record is therefore incomplete (i.e., had Respondent not obtained
a default judgment, additional discovery and a fuller presentation at trial would have resulted –
both in terms of documents and testimony). For example, the Castor Parties have attempted to
interpose defenses to Respondent’s Underlying Action based on facts that were not the subject of
the inquest hearing of which we have a publicly available record but of which we believe
Respondent nonetheless has knowledge based on her Complaint and demand letters her counsel
sent to the Castor Parties on Respondent’s behalf. Moreover, the inquest hearing that took place
focused primarily on damages, not liability. The Subpoena also seeks documents that were not
part of the public record and are not in the possession of any parties to the Malpractice Action.
Therefore, the Subpoena to Respondent should also be enforced on substantive grounds.
II. THE COURT SHOULD HOLD RESPONDENT IN CONTEMPT AND AWARD
PETITIONERS THEIR ATTORNEYS’ FEES AND COSTS INCURRED IN
SEEKING TO ENFORCE THIS SUBPOENA
In addition to compelling Respondent to produce the requested documents and appear for
deposition, the Court should also find Respondent to be in contempt and award damages. The
CPLR provides that the failure to comply with a subpoena shall be punishable as a contempt of
court, and a subpoenaed person shall also be liable to the person on whose behalf the subpoena
was issued for damages sustained by reason of the failure to comply. CPLR § 2308(a). Courts
have held that Judiciary Law § 773 “permits recovery of attorney's fees from the offending party
by a party aggrieved by the contemptuous conduct” including when a nonparty is found to be in
contempt for failing to comply with a subpoena. Impact Car Park, LLC v Mut. Redevelopment
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Houses, Inc., 2021 N.Y. Slip Op. 30950[U], 4 [N.Y. Sup Ct, New York County 2021] (quoting
Schwartz v Schwartz, 79 AD3d 1006, 1010 [2d Dept 2010]).
Attorneys’ fees are particularly warranted here, where Petitioners provided Respondent
with multiple chances to comply with the Subpoena before seeking this relief. Counsel for
Petitioners asked Respondent several times to provide dates to produce documents and appear for
deposition that were convenient for her – and even offered to take the deposition remotely so
Respondent would not need to travel. Rather than agree to dates, Respondent has delayed this
matter to the point where Petitioners were forced to file the instant application and incur additional
costs associated with same that could have been avoided but for Respondent’s refusal to comply.
As such, Petitioners request this Court award Petitioners their attorneys’ fees for
Respondent’s failure to comply with the Subpoena. Upon such award, Petitioners will submit the
appropriate fee application.
CONCLUSION
For the reasons set forth above, Petitioners respectfully request this Court enter an Order
compelling Respondent to produce the documents and testimony requested in the Subpoena, find
Respondent to be in contempt, award Petitioners their attorneys’ fees and costs incurred in filing
this proceeding, and award such further relief as the Court deems just and proper.
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Dated: June 26, 2023 CHIESA SHAHINIAN & GIANTOMASI PC
Attorneys for Petitioners Russell M. Woods, Gavin I.
Handwerker, and Bramnick, Rodriguez, Grabas,
Arnold & Mangan, LLC
By: /s/ David M. Dugan
DAVID M. DUGAN
11 Times Square, 34th Floor
New York, New York 10036
(212) 973-0572
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WORD COUNT CERTIFICATION
I, David M. Dugan, an attorney duly admitted to practice before the courts of the State of
New York, hereby certify that the foregoing Memorandum of Law contains 2738 words, as
counted by Microsoft Word’s word processing system, excluding the caption, which complies with
the page limit set forth in 22 N.Y.C.R.R. Part 202 § 202.8.
Dated: June 26, 2023 CHIESA SHAHINIAN & GIANTOMASI PC
Attorneys for Petitioners Russell M. Woods, Gavin I.
Handwerker, and Bramnick, Rodriguez, Grabas,
Arnold & Mangan, LLC
By: /s/ David M. Dugan
DAVID M. DUGAN
11 Times Square, 34th Floor
New York, New York 10036
(212) 973-0572
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Preview
FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------- X Index No. In the Matter of the Application of RUSSELL M. WOODS, GAVIN I. HANDWERKER, AND BRAMNICK, RODRIGUEZ, GRABAS, ARNOLD & MANGAN, LLC, Petitioners, To Enforce a Subpoena for the Documents and Testimony of STACY LEIGH, Respondent. ----------------------------------------------------------- X MEMORANDUM OF LAW IN SUPPORT OF PETITION TO ENFORCE SUBPOENA TO STACY LEIGH On the Brief: David M. Dugan, Esq. CHIESA SHAHINIAN & GIANTOMASI PC 11 Times Square, 34th Floor New York, New York 10036 (212) 973-0572 1 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY...................................................... 3 LEGAL ARGUMENT .................................................................................................................... 5 I. THE COURT SHOULD COMPEL RESPONDENT TO COMPLY WITH THE SUBPOENA............................................................................................................... 5 A. THE SUBPOENA MEETS THE CPLR’S PROCEDURAL NOTICE REQUIREMENTS.................................................................................................. 6 B. THE DISCOVERY PETITIONERS SEEK IS RELEVANT AND MATERIAL ............................................................................................................ 7 II. THE COURT SHOULD HOLD RESPONDENT IN CONTEMPT AND AWARD PETITIONERS THEIR ATTORNEYS’ FEES AND COSTS INCURRED IN SEEKING TO ENFORCE THIS SUBPOENA ....................................... 8 i 2 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 TABLE OF AUTHORITIES Page(s) Cases Cortez v. Gindhart, 435 N.J. Super. 589 (App. Div. 2014) .......................................................................................7 Impact Car Park, LLC v Mut. Redevelopment Houses, Inc., 2021 N.Y. Slip Op. 30950[U] [N.Y. Sup Ct, New York County 2021] ....................................8 Vaisman v Vil. of Croton-on-Hudson, 76 Misc 3d 1214(A) [Sup Ct 2022] ...........................................................................................7 Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104 [1st Dept 2006]....................................................................................................6 Statutes Judiciary Law § 773 .........................................................................................................................8 Uniform Interstate Depositions and Discovery Act .........................................................................3 Other Authorities CPLR § 2308....................................................................................................................................8 CPLR § 3101................................................................................................................................6, 7 CPLR § 3102....................................................................................................................................5 CPLR § 3119....................................................................................................................................3 ii 3 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 PRELIMINARY STATEMENT Petitioners Russell M. Woods, Gavin I. Handwerker and Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC (the “Bramnick Firm”) (collectively, “Petitioners”) are seeking to enforce a straightforward Subpoena requesting limited documents and a Zoom deposition from Respondent Stacy Leigh (“Respondent”) in connection with a legal malpractice action against Petitioners pending in New Jersey. Despite Petitioners’ demonstrated efforts to explain why they need this plainly relevant discovery and Petitioners’ attempts to minimize the resulting inconvenience to Respondent, she has refused without justification to comply, necessitating this application. The legal malpractice action arises out of a lawsuit Respondent filed in this Court against Sean Nicholas and Castor and Pollux (the “Castor Parties”) entitled, Stacy Leigh v. Castor and Pollux Ltd. LLC d/b/a Castor Gallery, Index No. 654923/2017 (the “Underlying Action”). The Bramnick Firm represented the Castor Parties in the Underlying Action. Respondent obtained a judgment against the Castor Parties based on, among other things, their failure to pay commissions due and owing to Respondent for the Castor Parties’ sale of Respondent’s artwork, for damaging other of Respondent’s artwork and for punitive damages and attorneys’ fees. In the malpractice action, the Castor Parties seek to hold Petitioners liable for Respondent’s judgment against them based on what the Castor Parties claim was Petitioners’ inadequate defense against Respondent’s claims. Petitioners domesticated and served a Subpoena on Respondent seeking testimony and a narrow set of documents that are relevant and material to at least one of Petitioners’ defenses to the malpractice claims: that Respondent’s claims against the Castor Parties were indefensible and that any purported malpractice on Petitioners’ part was, therefore, not the proximate cause of their damages – a well-recognized defense under New Jersey law. Toward that end, Petitioners seek 4 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 discovery concerning, among other things, the Castor Parties’ treatment of Respondent, their failure to return her artwork and pay commissions despite Respondent’s multiple demands, the value of the unreturned artwork and certain statements they made to Respondent that would have undermined the Castor Parties’ alleged defenses to those claims. As set forth below, the Castor Parties’ malpractice claims are based on Mr. Woods’ and his co-counsel Mr. Wise’s allegedly allowing Respondent to obtain a default judgment against them instead of fully litigating the matter. Putting aside the reasons the default judgment occurred (which is not relevant to the discovery Petitioners seek from Respondent), the Castor Parties must prove that, had the matter been fully litigated without the alleged malpractice, they would have obtained a more favorable result than that which occurred. Petitioners are entitled to demonstrate the Castor Parties would have been liable regardless but cannot do so without a fuller record that did not develop as a result of the default judgments. Despite the relevance as explained above and previously to Respondent’s counsel, and despite Petitioners’ expressed willingness to accommodate Respondent however reasonably possible, Respondent has refused to comply with the Subpoena based on purported procedural and substantive objections. Aside from incorrectly arguing the Subpoena seeks irrelevant discovery (a contention addressed above), Respondent incorrectly argues the Subpoena is procedurally defective because it does not adequately explain the purpose for which Petitioners seek the documents. That argument fails for several reasons. First, the Subpoena itself does provide a brief but adequate explanation. Second, Respondent and her counsel (who represented Respondent in the Underlying Action) are closely familiar with the parties and facts involved in the Underlying Action, and, in turn, how the Underlying Action relates to the resulting malpractice action. Third, 2 5 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 as set forth below, Petitioners further explained to Respondent’s counsel both verbally and in writing the relevance and purpose of the discovery they seek. In reality, it appears Respondent’s primary issue is that she does not want to deal with the issues stemming from her own Underlying Action anymore. That desire is understandable, but it is not a basis for refusing to comply with a validly issued subpoena seeking narrow and plainly relevant information. As such, Respondent’s repeated failure to comply with the Subpoena is unwarranted, and this Court should exercise its authority to enforce the Subpoena, find Respondent in contempt, and award Petitioners their attorneys’ fees and costs incurred in bringing this proceeding. STATEMENT OF FACTS AND PROCEDURAL HISTORY In the interest of brevity, Petitioners will set forth only the facts and procedural background relevant to this application. The discovery Petitioners seek from Respondent is in connection with an action pending in New Jersey Superior Court entitled Nicholas, et al. v. Woods, et al., Docket No. ESX-L-307-22 (the “Malpractice Action”). The Castor Parties filed the Malpractice Action on January 13, 2022 against Petitioners and other defendants. (See Verified Petition dated June 26, 2023 (“Pet.”) at ¶ 6, Ex. A). The Castor Parties’ claims against Petitioners in the Malpractice Action are based on alleged legal malpractice in the handling of the Underlying Action and certain other matters in which Petitioners served (or in one case allegedly served) as defense counsel for the Castor Parties. (Id. at ¶¶ 7-8). On January 23, 2023, Petitioners (through counsel) issued a Subpoena Duces Tecum and Ad Testificandum to Respondent pursuant to the Uniform Interstate Depositions and Discovery Act, as adopted by New York and codified at CPLR § 3119 (the “Subpoena”). (Id. at ¶ 9, Ex. B). The face of the Subpoena indicated that it was being served on behalf of Petitioners in connection with the captioned Malpractice Action. (Id.) The accompanying cover letter also stated that the 3 6 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 Castor Parties had filed a lawsuit against their former attorneys, including Petitioners. (Id.) The Subpoena seeks Respondent’s deposition testimony and the production of three narrowly tailored categories of documents. (Id.) The Subpoena was personally served on Respondent on January 24, 2023. (Id. at ¶ 10, Ex. C). On January 26, 2023, Respondent’s counsel emailed Petitioners’ counsel requesting that all future correspondence be directed to his office. (Id. at ¶ 11, Ex. D). On January 30, 2023, Petitioners’ counsel requested Respondent’s counsel provide available dates for Respondent to appear for her deposition. (Id. at ¶ 12, Ex. D). On the same date, Respondent’s counsel responded and asserted that Respondent should not need to produce documents or give testimony because she was already put through “trauma” in the Underlying Action. (Id. at ¶ 13, Ex. D). His temperament and our disagreement with his assertions aside, Respondent’s counsel demonstrated an understanding of the Underlying Action and Malpractice Action and Petitioners’ involvement in same by stating: [Respondent] was brutally victimized by the Castor defendants from whom she has yet to receive even $1 of the judgment awarded to her two years ago next month. This after three years of litigation marred by delay tactics and evasiveness on the part of the Castor defendants, exacerbated by counsel against whom the malpractice action is now pending, and where all efforts to enforce the judgment have been obstructed by the Castor defendants and the now three different law firms representing them (starting with the Bramnick Firm). (Pet. at Ex. D). The parties agreed to put the Subpoena on hold while the parties explored settlement options. (Pet. at ¶ 15). On May 24, 2023, after it appeared those efforts had not gained traction among the parties to the Malpractice Action, Petitioners’ counsel followed up with Respondent’s counsel for dates for Respondent to produce the requested documents and appear for deposition. (Id. at ¶ 16, Ex. D). On June 1, 2023, Respondent’s counsel raised unspecified procedural and 4 7 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 substantive objections to the Subpoena. (Id. at ¶ 17, Ex. D). Petitioners’ counsel responded that Petitioners are entitled to the discovery requested from Respondent and that conducting the deposition by agreement would be more efficient than engaging in motion practice. (Id. at ¶ 18, Ex. D). On June 8, 2023, Petitioners’ counsel followed up with Respondent’s counsel again asking for dates whereby Respondent will produce the requested documents and appear for her deposition and noting that a resolution must be reached by agreement or by motion. (Id. at ¶ 19, Ex. D). Respondent’s counsel replied and asserted that the Subpoena is procedurally deficient for failing to state the purpose for which the documents are sought. (Id. at ¶ 20, Ex. D). By way of letter dated June 16, 2023, Petitioners’ counsel addressed Respondent’s counsel’s substantive and procedural objections to the Subpoena. (Id. at ¶ 21, Ex. E). To date, Respondent has not complied with the Subpoena to produce the requested documents or give testimony. (Id. at ¶ 22). The current discovery end date in the Malpractice Action is July 23, 2023. (Id. at ¶ 23). LEGAL ARGUMENT I. THE COURT SHOULD COMPEL RESPONDENT TO COMPLY WITH THE SUBPOENA This Court should exercise its authority to compel Respondent to comply with the Subpoena – which seeks limited documents and what should be a brief Zoom deposition. The CPLR allows a party to apply to this Court for an order to enforce an out-of-state subpoena and for this Court to make any appropriate order to compel the deposition of a witness in this state sought in connection with an action pending in another jurisdiction. CPLR §§ 3102(e) & 3119(e). As set forth below, the Subpoena is valid, and the discovery sought from Respondent is relevant 5 8 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 and material to the Malpractice Action. Therefore, the Court should enter an Order compelling Respondent to produce the documents and give the testimony requested in the Subpoena. A. The Subpoena Meets the CPLR’s Procedural Notice Requirements Respondent has not identified any procedural defects that would render the Subpoena unenforceable. Respondent’s counsel claims only that the Subpoena fails to set forth the purpose for the documents requested. Presumably, Respondent is referring to CPLR § 3101(a)(4), but counsel’s reliance on that provision is misplaced given the circumstances in this case. First, the Subpoena complies with CPLR § 3101(a)(4) because the face of the Subpoena indicates that Petitioners are seeking Respondent’s testimony and documents in connection with the captioned Malpractice Action. The cover letter accompanying the Subpoena further explains that the Castor Parties have sued their former attorneys, including Petitioners. Thus, the Subpoena itself provides adequate notice that Petitioners seek the documents for the purpose of discovery in the Malpractice Action. Respondent and her counsel cannot plausibly plead ignorance of the Subpoena’s purpose. New York courts have explained that the notice requirement in CPLR § 3101(a)(4) is intended “to afford a nonparty who has no idea of the parties’ dispute or a party affected by such request an opportunity to decide how to respond.” Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 110-11 [1st Dept 2006] (holding that even though the requisite notice was not on the face of the subpoena, the evidence presented in the motion papers warranted denial of the motion to quash). Respondent and her counsel are very familiar with the Castor Parties from their involvement in the Underlying Action. Counsel’s correspondence makes clear that Respondent knows Petitioners represented the Castor Parties in the Underlying Action and that the Castor Parties have now sued Petitioners for legal malpractice. Petitioners have also advised Respondent’s counsel in oral and written communications since the service of the Subpoena why they are seeking the documents 6 9 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 and testimony in question. As such, Petitioners have provided more than adequate notice in compliance with CPLR § 3101(a)(4). B. The Discovery Petitioners Seek is Relevant and Material The discovery Petitioners seek through the Subpoena is material to Petitioners’ defense of the Malpractice Action. New York applies a liberal discovery standard, and Respondent, as the nonparty objecting to a subpoena, has the burden of establishing the requested disclosure is utterly irrelevant to the action or that “the futility of the process to uncover anything legitimate is inevitable or obvious.” Vaisman v Vil. of Croton-on-Hudson, 76 Misc 3d 1214(A) [Sup Ct 2022] (citing U.S. Bank Trust, N.A. v. Carter, 204 AD3d 727, 729 [2d Dept 2022]; George v Victoria Albi, Inc., 148 AD3d 1120, 1121 [2d Dept 2017]). Respondent cannot show that the testimony and documents requested from her are irrelevant to the Malpractice Action. To prevail in the Malpractice Action, the Castor Parties must prove that their loss was proximately caused by Petitioners’ alleged malpractice or that they would have prevailed or had a materially different result in the Underlying Action but for the alleged malpractice. See Cortez v. Gindhart, 435 N.J. Super. 589, 603-04 (App. Div. 2014). The discovery Petitioners seek from Respondent, the plaintiff in one of the underlying lawsuits on which the Malpractice Action is based, goes to the heart of this issue. The requested communications, photographs and inquest hearing exhibits requested in the Subpoena to Respondent are relevant to Petitioners’ defense of the Malpractice Action to demonstrate that the Castor Parties would have been liable for damages to Respondent regardless of Petitioners’ purported malpractice (which allegations Petitioners deny in any event). This approach is often referred to as a “suit within a suit” and requires a presentation during the trial on the malpractice claims of the merits of the underlying action. Otherwise stated, if Respondent would have prevailed following a fully contested trial in the Underlying Action in any event, there can be no malpractice claim – or, at a minimum, any damages conceivably 7 10 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 recoverable in the Malpractice Action would be reduced to the extent the Castor Parties would have been found liable to Respondent in the Underlying Litigation. Contrary to Respondent’s counsel’s previously expressed position, simply relying on the record from the Underlying Action will not afford sufficient discovery because that case did not ultimately proceed to trial and the record is therefore incomplete (i.e., had Respondent not obtained a default judgment, additional discovery and a fuller presentation at trial would have resulted – both in terms of documents and testimony). For example, the Castor Parties have attempted to interpose defenses to Respondent’s Underlying Action based on facts that were not the subject of the inquest hearing of which we have a publicly available record but of which we believe Respondent nonetheless has knowledge based on her Complaint and demand letters her counsel sent to the Castor Parties on Respondent’s behalf. Moreover, the inquest hearing that took place focused primarily on damages, not liability. The Subpoena also seeks documents that were not part of the public record and are not in the possession of any parties to the Malpractice Action. Therefore, the Subpoena to Respondent should also be enforced on substantive grounds. II. THE COURT SHOULD HOLD RESPONDENT IN CONTEMPT AND AWARD PETITIONERS THEIR ATTORNEYS’ FEES AND COSTS INCURRED IN SEEKING TO ENFORCE THIS SUBPOENA In addition to compelling Respondent to produce the requested documents and appear for deposition, the Court should also find Respondent to be in contempt and award damages. The CPLR provides that the failure to comply with a subpoena shall be punishable as a contempt of court, and a subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for damages sustained by reason of the failure to comply. CPLR § 2308(a). Courts have held that Judiciary Law § 773 “permits recovery of attorney's fees from the offending party by a party aggrieved by the contemptuous conduct” including when a nonparty is found to be in contempt for failing to comply with a subpoena. Impact Car Park, LLC v Mut. Redevelopment 8 11 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 Houses, Inc., 2021 N.Y. Slip Op. 30950[U], 4 [N.Y. Sup Ct, New York County 2021] (quoting Schwartz v Schwartz, 79 AD3d 1006, 1010 [2d Dept 2010]). Attorneys’ fees are particularly warranted here, where Petitioners provided Respondent with multiple chances to comply with the Subpoena before seeking this relief. Counsel for Petitioners asked Respondent several times to provide dates to produce documents and appear for deposition that were convenient for her – and even offered to take the deposition remotely so Respondent would not need to travel. Rather than agree to dates, Respondent has delayed this matter to the point where Petitioners were forced to file the instant application and incur additional costs associated with same that could have been avoided but for Respondent’s refusal to comply. As such, Petitioners request this Court award Petitioners their attorneys’ fees for Respondent’s failure to comply with the Subpoena. Upon such award, Petitioners will submit the appropriate fee application. CONCLUSION For the reasons set forth above, Petitioners respectfully request this Court enter an Order compelling Respondent to produce the documents and testimony requested in the Subpoena, find Respondent to be in contempt, award Petitioners their attorneys’ fees and costs incurred in filing this proceeding, and award such further relief as the Court deems just and proper. 9 12 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 Dated: June 26, 2023 CHIESA SHAHINIAN & GIANTOMASI PC Attorneys for Petitioners Russell M. Woods, Gavin I. Handwerker, and Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC By: /s/ David M. Dugan DAVID M. DUGAN 11 Times Square, 34th Floor New York, New York 10036 (212) 973-0572 10 13 of 14 FILED: NEW YORK COUNTY CLERK 06/26/2023 03:24 PM INDEX NO. 155705/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2023 WORD COUNT CERTIFICATION I, David M. Dugan, an attorney duly admitted to practice before the courts of the State of New York, hereby certify that the foregoing Memorandum of Law contains 2738 words, as counted by Microsoft Word’s word processing system, excluding the caption, which complies with the page limit set forth in 22 N.Y.C.R.R. Part 202 § 202.8. Dated: June 26, 2023 CHIESA SHAHINIAN & GIANTOMASI PC Attorneys for Petitioners Russell M. Woods, Gavin I. Handwerker, and Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC By: /s/ David M. Dugan DAVID M. DUGAN 11 Times Square, 34th Floor New York, New York 10036 (212) 973-0572 11 14 of 14