Preview
FILED: WESTCHESTER COUNTY CLERK 12/05/2023 10:29 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1653 RECEIVED NYSCEF: 12/05/2023
Jeremy C. Vest 919 Third Avenue
212 692 6718 New York, NY 10022
jvest@mintz.com 212 935 3000
mintz.com
December 5, 2023
Via NYSCEF
Hon. Linda S. Jamieson
Supreme Court of the State of New York
Westchester County
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 10601
Re: Goldstein et al. v. Houlihan/Lawrence Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Justice Jamieson:
I write to report on recent material developments that heighten the
importance of advancing this case to trial and to ask the Court to promptly set a
February 5, 2024, deadline for the filing of post-discovery motions such as a motion
for summary judgment, to de-certify the Class, or to preclude expert testimony.
Prior to the November 21, 2023, status conference, Houlihan Lawrence
obtained a two-week extension of its already-generous 75-day deadline to complete
its expert disclosure after representing that the extension would not “delay any
other deadlines or proceedings in this case,” and that “we should be able to get the
depositions done” before the parties’ scheduled December 12, 2023, mediation. (Dkt.
1650 at 5-6). Now, however, Houlihan Lawrence exploits that extension by
postponing both the commencement of expert depositions until January 2024 and
their completion until after the January 11, 2024, conference when the Court was
expected to set a trial date. (Ex. 1)
The Class instead agrees to forego expert depositions to prevent what would
be tantamount to a six-week litigation standdown. The Class does so not only
because depositions are unnecessary to cross-examine Houlihan Lawrence’s experts
at trial, but also to move this case forward in honor of Dr. Ellyn Berk, who passed
away shortly before Thanksgiving. Dr. Berk was an unwavering force behind this
case since coming forward after learning from the Wall Street Journal what
Houlihan Lawrence hid from her, while its agents conspired to sell her mother’s
home in-house before it hit the market. It will be a bittersweet day when Houlihan
Lawrence is finally held to account without Dr. Berk there to see it.
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
1 of 2
FILED: WESTCHESTER COUNTY CLERK 12/05/2023 10:29 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1653 RECEIVED NYSCEF: 12/05/2023
MINTZ
Hon. Linda S. Jamieson
December 5, 2023
Page 2
Dr. Berk’s untimely passing is a stark reminder that delay can have
irreversible consequences that undermine the interests of justice. The advanced
age and fragile health of Tom Cusack, who the Court has recognized is “intimately
familiar” with New York’s agency disclosure standards (Dkt. 1356 at 5), make the
Class vulnerable to further losses in Houlihan Lawrence’s ongoing war of attrition.
To preserve his testimony for trial, the Class will depose Mr. Cusack on January 12,
2024, a date set aside by Houlihan Lawrence for the deposition of one of its experts,
but which is now available given the Class’s expert-deposition waiver. To be sure,
the testimony of New York’s foremost agency disclosure expert will ring true no
matter how it gets communicated, but the jury will be poorly served if Houlihan
Lawrence’s strategic delay prevents Mr. Cusack from taking the witness stand.
The Class, of course, respects the New York State Unified Court System’s
commitment to promoting mediation and this Court’s decision therefore to direct
the parties to try to resolve this case peacefully before scheduling summary
judgment motion practice. But the Court no longer has reason to stay its hand
since its interest in alternative dispute resolution will be served on December 12th,
when the parties appear before the Court-appointed mediator, Mr. Benowich.
In Houlihan Lawrence’s other matter on behalf of HomeServices of America,
Burnett et al. v. Nat’l Ass’n of Realtors, et al., 19-CV-00332 (W.D. Mo.), a 2019 case
tried to verdict a few weeks ago, the court gave the parties two months’ notice of
their deadline to file dispositive and expert preclusion motions (August 29) within
12 days of the completion of expert discovery (August 17). (Compare Exhibit 2 at
¶¶ 1(F) and 3). The Class’s request today for a February 5, 2024, deadline (and
30/15 briefing schedule thereafter) is objectively reasonable and within the range of
time set in Burnett, another real-estate class action of public importance.
The Class will complete its expert disclosure, with a rebuttal report from Mr.
Lashway, on or before December 15th, 30 days after Houlihan Lawrence served its
final expert report. And the Class will make Mr. Lashway available for any further
examination that Houlihan Lawrence may require (it took his previous deposition
remotely and in approximately two hours) on January 5th, another now-available
date already set aside by Houlihan Lawrence, and one that is a month before the
requested summary judgment filing deadline.
Respectfully,
Jeremy Vest
2 of 2
Preview
FILED: WESTCHESTER COUNTY CLERK 12/05/2023 10:29 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1653 RECEIVED NYSCEF: 12/05/2023 Jeremy C. Vest 919 Third Avenue 212 692 6718 New York, NY 10022 jvest@mintz.com 212 935 3000 mintz.com December 5, 2023 Via NYSCEF Hon. Linda S. Jamieson Supreme Court of the State of New York Westchester County 111 Dr. Martin Luther King, Jr. Blvd. White Plains, NY 10601 Re: Goldstein et al. v. Houlihan/Lawrence Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Justice Jamieson: I write to report on recent material developments that heighten the importance of advancing this case to trial and to ask the Court to promptly set a February 5, 2024, deadline for the filing of post-discovery motions such as a motion for summary judgment, to de-certify the Class, or to preclude expert testimony. Prior to the November 21, 2023, status conference, Houlihan Lawrence obtained a two-week extension of its already-generous 75-day deadline to complete its expert disclosure after representing that the extension would not “delay any other deadlines or proceedings in this case,” and that “we should be able to get the depositions done” before the parties’ scheduled December 12, 2023, mediation. (Dkt. 1650 at 5-6). Now, however, Houlihan Lawrence exploits that extension by postponing both the commencement of expert depositions until January 2024 and their completion until after the January 11, 2024, conference when the Court was expected to set a trial date. (Ex. 1) The Class instead agrees to forego expert depositions to prevent what would be tantamount to a six-week litigation standdown. The Class does so not only because depositions are unnecessary to cross-examine Houlihan Lawrence’s experts at trial, but also to move this case forward in honor of Dr. Ellyn Berk, who passed away shortly before Thanksgiving. Dr. Berk was an unwavering force behind this case since coming forward after learning from the Wall Street Journal what Houlihan Lawrence hid from her, while its agents conspired to sell her mother’s home in-house before it hit the market. It will be a bittersweet day when Houlihan Lawrence is finally held to account without Dr. Berk there to see it. BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 1 of 2 FILED: WESTCHESTER COUNTY CLERK 12/05/2023 10:29 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1653 RECEIVED NYSCEF: 12/05/2023 MINTZ Hon. Linda S. Jamieson December 5, 2023 Page 2 Dr. Berk’s untimely passing is a stark reminder that delay can have irreversible consequences that undermine the interests of justice. The advanced age and fragile health of Tom Cusack, who the Court has recognized is “intimately familiar” with New York’s agency disclosure standards (Dkt. 1356 at 5), make the Class vulnerable to further losses in Houlihan Lawrence’s ongoing war of attrition. To preserve his testimony for trial, the Class will depose Mr. Cusack on January 12, 2024, a date set aside by Houlihan Lawrence for the deposition of one of its experts, but which is now available given the Class’s expert-deposition waiver. To be sure, the testimony of New York’s foremost agency disclosure expert will ring true no matter how it gets communicated, but the jury will be poorly served if Houlihan Lawrence’s strategic delay prevents Mr. Cusack from taking the witness stand. The Class, of course, respects the New York State Unified Court System’s commitment to promoting mediation and this Court’s decision therefore to direct the parties to try to resolve this case peacefully before scheduling summary judgment motion practice. But the Court no longer has reason to stay its hand since its interest in alternative dispute resolution will be served on December 12th, when the parties appear before the Court-appointed mediator, Mr. Benowich. In Houlihan Lawrence’s other matter on behalf of HomeServices of America, Burnett et al. v. Nat’l Ass’n of Realtors, et al., 19-CV-00332 (W.D. Mo.), a 2019 case tried to verdict a few weeks ago, the court gave the parties two months’ notice of their deadline to file dispositive and expert preclusion motions (August 29) within 12 days of the completion of expert discovery (August 17). (Compare Exhibit 2 at ¶¶ 1(F) and 3). The Class’s request today for a February 5, 2024, deadline (and 30/15 briefing schedule thereafter) is objectively reasonable and within the range of time set in Burnett, another real-estate class action of public importance. The Class will complete its expert disclosure, with a rebuttal report from Mr. Lashway, on or before December 15th, 30 days after Houlihan Lawrence served its final expert report. And the Class will make Mr. Lashway available for any further examination that Houlihan Lawrence may require (it took his previous deposition remotely and in approximately two hours) on January 5th, another now-available date already set aside by Houlihan Lawrence, and one that is a month before the requested summary judgment filing deadline. Respectfully, Jeremy Vest 2 of 2