Preview
State of New York
OFFICE OF THE ATTORNEY GENERAL
MEDICAID FRAUD CONTROL UNIT
Letitia James
Attorney General
________
AMY HELD PAUL J. MAHONEY
Director Assistant Deputy Attorney General
By Email December 20, 2023
Justice Melissa Anne Crane
Supreme Court, New York County
60 Centre Street
New York, NY 10007
Re: People v. Abraham Operation Assoc. LLC, et al., Index # 451549/2023
Dear Justice Crane:
We write in response to Respondents’ request for discovery in the instant special proceeding, or, in the
alternative, for leave to make a discovery motion pursuant to CPLR 408. Respondents’ request should be
denied in its entirety, as it fails to set forth a basis upon which discovery could be granted and is interposed
merely to delay the proceeding. The following history provides background and context.
By way of letter dated December 6, 2023, Respondents requested discovery of 16 extremely broad
categories of materials. See December 6, 2023 Letter, annexed hereto as Exhibit A. However, Respondents
wholly failed to make the showing of “ample need” required before discovery will be granted in a
summary proceeding. 1 See, e.g., Matter of Shore, 109 A.D.2d 842 (2d Dep’t 1985); CPLR 408. Rather,
the only basis for their request was their assertion that it would be “more efficient” if Respondent provided
the requested materials. This is obviously not a basis for discovery in a special proceeding. Moreover,
many of the categories of documents Respondents sought are expressly privileged or otherwise protected
from discovery. For example, Respondents sought discovery of communications between New York State
Office of the Attorney General (“OAG”) staff and witnesses. However, requests for communications such
as these have been rejected by the courts as privileged. See, e.g., People v. The Trump Entrepreneur
Initiative LLC, 2014 WL 5241483, at *14 (Sup. Ct. N.Y. Cty. Oct. 8, 2014), aff’d in relevant part, 137
A.D.3d 409, 419 (1st Dep’t 2016).
Given their patent impropriety, Petitioner rejected Respondents’ discovery requests. See Petitioner’s
Letter Dated December 13, 2024, annexed hereto as Exhibit B. Undeterred, Respondents now ask this
1
Respondents misleadingly cite to the Northern Leasing decision to support their discovery requests. See
Dec. 18 Letter at 1. That decision affirmed the denial of discovery in a special proceeding, and does not
use the words “complex” or “very broad” to describe proceedings where discovery is appropriate. See 193
A.D.3d 67, 73-74 (1st Dep’t 2021).
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2|Hon.Melissa Crane December 20, 2023
Court to grant discovery. Presumably, Respondents, by way of their instant application, seek the same
materials. However, they offer no more justification for this fishing expedition than they did in their letter
of December 6. Perhaps realizing that there is no legal basis for their request, Respondents now make the
absurd claim that they have been “denied access to exculpatory materials,” 2 although they fail to describe
the nature of the material they are so confident must exist. They merely want Petitioner now to spend time
processing paper rather than preparing opposition papers due on January 12 to Respondents’ November
13 motion to dismiss, and preparing for the oral argument that this Court set for January 22, 2024. The
Court should ignore this tactic and deny Respondents’ request.
Discovery in a summary proceeding is allowed only by leave of court and should not be granted unless
the movant demonstrates an “ample need” for discovery. Matter of Shore, 109 A.D.2d 842, 843 (2d Dep’t
1985); CPLR 408. The heavy burden imposed on a party seeking discovery in a special proceeding under
§ 63(12) is due to the proceeding’s summary nature. People v. Bestline Prods., Inc., 41 N.Y.2d 887 (1977)
(reversing grant of discovery in Executive Law § 63(12) proceeding as an abuse of discretion); State v.
Condor Pontiac, Inc., No. 02-1020, 2003 WL 21649689, at *4 (Sup. Ct. N.Y. Cty. July 2, 2003) (“Because
of the expedited nature of special proceedings, respondent must demonstrate special or unusual
circumstances which would justify permitting discovery.”). While courts have ordered discovery in certain
limited circumstances, no discovery is warranted in this proceeding. As set forth in Petitioner’s December
13 Letter, Respondents have not carried the burden of showing “ample need” for discovery, nor have they
demonstrated that they “lack [the] material” on which Petitioner’s claims are based. Trump Entrepreneur,
2014 WL 5241483, at *13 (quoting Lefkowitz v. Raymond Lee Org., Inc., 94 Misc.2d 875 (Sup. Ct. N.Y.
Cty. 1978)).
Respondents complain, in particular, that Petitioner “attached just a fraction of the evidentiary record it
collected during its three-year investigation, selectively including only those materials it believes supports
its claims.” See Respondents’ December 18 Letter. In making this argument, Respondents misapprehend
the nature of summary proceedings. Petitioner need only provide those materials upon which it will rely,
and as the CPLR provides, the evidence that Petitioner will rely on in this special proceeding was
submitted with the Petition. See CPLR 409 (providing for hearing based on “the pleadings, papers and
admissions” served by each party). As the CPLR makes clear, Respondents may submit any evidence they
consider exculpatory with their answers. As such, the evidence on which Petitioner will rely is already in
Respondents’ possession and Respondents may attempt to rebut such evidence. Respondents are not
entitled to “open file” discovery of any and all materials in Petitioner’s possession. In any event, they have
not articulated a specific need tied to any specific claim or defense in this proceeding. Accordingly, their
request should be denied. 3
2
Of course, the instant special proceeding is civil, not criminal, in nature, and thus, Respondents have no
due process right to “exculpatory” materials. Indeed, as shown, Respondents have no right to discovery
of any materials under the law. And Respondents have not presented any good-faith basis to establish that
exculpatory materials even exist, or would be solely in Petitioner’s control.
3
Respondents’ current request is yet another unjustified attempt to circumvent established rules of
practice. In much the same way that they now seek discovery, without justification and in contravention
of the CPLR, during the investigatory phase of this matter, Kenneth Rozenberg refused to appear at an
examination under oath pursuant to a validly issued subpoena in August 2022, and Daryl Hagler refused
to appear for the completion of his examination on August 11, 2022, after the scope of his misconduct
became apparent during the first day of his examination on June 23, 2022.
2
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3|Hon.Melissa Crane December 20, 2023
Moreover, even if this Court were to entertain Respondents’ meritless request, doing so at this time would
be premature and wasteful. The scheduling order entered by this Court on August 10, 2023 (ECF No. 766)
provides that after motions to dismiss have been decided, and the Petition has been fully briefed, the
parties shall appear on or about April 10, 2024, or as soon thereafter as is convenient for the Court, for a
hearing to determine whether triable issues of fact have been raised. Any application for discovery made
before then would be premature as the parties would not know what issues, if any, remain to be litigated,
and requiring the parties to engage in discovery without boundaries would be a waste of time and
resources.
For the foregoing reasons, Respondents’ request for discovery should be denied. We look forward to
addressing these matters at tomorrow’s conference.
Respectfully submitted,
LETITIA JAMES
Attorney General of the State of New York
By: ______________
Konrad F. Payne
Deputy Chief
Civil Enforcement Division
Medicaid Fraud Control Unit
Office of the New York State
Attorney General
28 Liberty Street
New York, NY 10005
(212) 417-5409
Konrad.payne@ag.ny.gov
Cc: All counsel via NYSCEF
3
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Preview
State of New York OFFICE OF THE ATTORNEY GENERAL MEDICAID FRAUD CONTROL UNIT Letitia James Attorney General ________ AMY HELD PAUL J. MAHONEY Director Assistant Deputy Attorney General By Email December 20, 2023 Justice Melissa Anne Crane Supreme Court, New York County 60 Centre Street New York, NY 10007 Re: People v. Abraham Operation Assoc. LLC, et al., Index # 451549/2023 Dear Justice Crane: We write in response to Respondents’ request for discovery in the instant special proceeding, or, in the alternative, for leave to make a discovery motion pursuant to CPLR 408. Respondents’ request should be denied in its entirety, as it fails to set forth a basis upon which discovery could be granted and is interposed merely to delay the proceeding. The following history provides background and context. By way of letter dated December 6, 2023, Respondents requested discovery of 16 extremely broad categories of materials. See December 6, 2023 Letter, annexed hereto as Exhibit A. However, Respondents wholly failed to make the showing of “ample need” required before discovery will be granted in a summary proceeding. 1 See, e.g., Matter of Shore, 109 A.D.2d 842 (2d Dep’t 1985); CPLR 408. Rather, the only basis for their request was their assertion that it would be “more efficient” if Respondent provided the requested materials. This is obviously not a basis for discovery in a special proceeding. Moreover, many of the categories of documents Respondents sought are expressly privileged or otherwise protected from discovery. For example, Respondents sought discovery of communications between New York State Office of the Attorney General (“OAG”) staff and witnesses. However, requests for communications such as these have been rejected by the courts as privileged. See, e.g., People v. The Trump Entrepreneur Initiative LLC, 2014 WL 5241483, at *14 (Sup. Ct. N.Y. Cty. Oct. 8, 2014), aff’d in relevant part, 137 A.D.3d 409, 419 (1st Dep’t 2016). Given their patent impropriety, Petitioner rejected Respondents’ discovery requests. See Petitioner’s Letter Dated December 13, 2024, annexed hereto as Exhibit B. Undeterred, Respondents now ask this 1 Respondents misleadingly cite to the Northern Leasing decision to support their discovery requests. See Dec. 18 Letter at 1. That decision affirmed the denial of discovery in a special proceeding, and does not use the words “complex” or “very broad” to describe proceedings where discovery is appropriate. See 193 A.D.3d 67, 73-74 (1st Dep’t 2021). 1 of 3 2|Hon.Melissa Crane December 20, 2023 Court to grant discovery. Presumably, Respondents, by way of their instant application, seek the same materials. However, they offer no more justification for this fishing expedition than they did in their letter of December 6. Perhaps realizing that there is no legal basis for their request, Respondents now make the absurd claim that they have been “denied access to exculpatory materials,” 2 although they fail to describe the nature of the material they are so confident must exist. They merely want Petitioner now to spend time processing paper rather than preparing opposition papers due on January 12 to Respondents’ November 13 motion to dismiss, and preparing for the oral argument that this Court set for January 22, 2024. The Court should ignore this tactic and deny Respondents’ request. Discovery in a summary proceeding is allowed only by leave of court and should not be granted unless the movant demonstrates an “ample need” for discovery. Matter of Shore, 109 A.D.2d 842, 843 (2d Dep’t 1985); CPLR 408. The heavy burden imposed on a party seeking discovery in a special proceeding under § 63(12) is due to the proceeding’s summary nature. People v. Bestline Prods., Inc., 41 N.Y.2d 887 (1977) (reversing grant of discovery in Executive Law § 63(12) proceeding as an abuse of discretion); State v. Condor Pontiac, Inc., No. 02-1020, 2003 WL 21649689, at *4 (Sup. Ct. N.Y. Cty. July 2, 2003) (“Because of the expedited nature of special proceedings, respondent must demonstrate special or unusual circumstances which would justify permitting discovery.”). While courts have ordered discovery in certain limited circumstances, no discovery is warranted in this proceeding. As set forth in Petitioner’s December 13 Letter, Respondents have not carried the burden of showing “ample need” for discovery, nor have they demonstrated that they “lack [the] material” on which Petitioner’s claims are based. Trump Entrepreneur, 2014 WL 5241483, at *13 (quoting Lefkowitz v. Raymond Lee Org., Inc., 94 Misc.2d 875 (Sup. Ct. N.Y. Cty. 1978)). Respondents complain, in particular, that Petitioner “attached just a fraction of the evidentiary record it collected during its three-year investigation, selectively including only those materials it believes supports its claims.” See Respondents’ December 18 Letter. In making this argument, Respondents misapprehend the nature of summary proceedings. Petitioner need only provide those materials upon which it will rely, and as the CPLR provides, the evidence that Petitioner will rely on in this special proceeding was submitted with the Petition. See CPLR 409 (providing for hearing based on “the pleadings, papers and admissions” served by each party). As the CPLR makes clear, Respondents may submit any evidence they consider exculpatory with their answers. As such, the evidence on which Petitioner will rely is already in Respondents’ possession and Respondents may attempt to rebut such evidence. Respondents are not entitled to “open file” discovery of any and all materials in Petitioner’s possession. In any event, they have not articulated a specific need tied to any specific claim or defense in this proceeding. Accordingly, their request should be denied. 3 2 Of course, the instant special proceeding is civil, not criminal, in nature, and thus, Respondents have no due process right to “exculpatory” materials. Indeed, as shown, Respondents have no right to discovery of any materials under the law. And Respondents have not presented any good-faith basis to establish that exculpatory materials even exist, or would be solely in Petitioner’s control. 3 Respondents’ current request is yet another unjustified attempt to circumvent established rules of practice. In much the same way that they now seek discovery, without justification and in contravention of the CPLR, during the investigatory phase of this matter, Kenneth Rozenberg refused to appear at an examination under oath pursuant to a validly issued subpoena in August 2022, and Daryl Hagler refused to appear for the completion of his examination on August 11, 2022, after the scope of his misconduct became apparent during the first day of his examination on June 23, 2022. 2 2 of 3 3|Hon.Melissa Crane December 20, 2023 Moreover, even if this Court were to entertain Respondents’ meritless request, doing so at this time would be premature and wasteful. The scheduling order entered by this Court on August 10, 2023 (ECF No. 766) provides that after motions to dismiss have been decided, and the Petition has been fully briefed, the parties shall appear on or about April 10, 2024, or as soon thereafter as is convenient for the Court, for a hearing to determine whether triable issues of fact have been raised. Any application for discovery made before then would be premature as the parties would not know what issues, if any, remain to be litigated, and requiring the parties to engage in discovery without boundaries would be a waste of time and resources. For the foregoing reasons, Respondents’ request for discovery should be denied. We look forward to addressing these matters at tomorrow’s conference. Respectfully submitted, LETITIA JAMES Attorney General of the State of New York By: ______________ Konrad F. Payne Deputy Chief Civil Enforcement Division Medicaid Fraud Control Unit Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 (212) 417-5409 Konrad.payne@ag.ny.gov Cc: All counsel via NYSCEF 3 3 of 3