Preview
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
------------------------------------------------------------------X
NEIL B. RICE,
Plaintiff, Index No.: 61665/2021
-against- DECISION AND ORDER
(Motion Sequence 5)
LEE R. EINSIDLER, As Administrator of the Estate
Of Aaron Michael Einsidler aka Aaron M. Einsidler,
Defendant.
------------------------------------------------------------------X
Greenwald, J.S.C.
The following NYSCEF documents were reviewed and/or read by the Court in
determining the within Decision and Order (Motion Sequence #5):
NYSCEF documents numbers 1 4 8 9-10 14 16 18 25 29 32 34-36 46 47-49 53 57 59 61
64-67 75-79 81-83 86-125 128-134
**CORRECTION ** The relevant date is January 1, 2017 not 2007.
Defendant moved by Notice of Omnibus Motion to Compel (Motion Sequence #5)
(NYSCEF #81) filed October 12, 2022. The Court will deal with each individual relief
Defendant sought as follows.
1. Defendant’s First Request for the Production of Documents and Things and Defendant’s
Second Request for the Production of Documents and Things;
Defendant sought an Order pursuant to CPLR 3042(c), CPLR 3101, and CPLR 3124
compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties LLC (“NBR Properties”) to:
(1) produce documents responsive to Defendant’s First Request for the Production of Documents
and Things and Defendant’s Second Request for the Production of Documents and Things. The
Court has reviewed the various requests/ demands made by defendant and also reviewed the
plaintiff’s prior responses. The Court has determined that the following requests shall be
responded to by plaintiff on or before May 12, 2023. By reason of the foregoing, it is:
ORDERED that plaintiff shall provide in Response to Request No1 all documents and
communications concerning any meeting or communication between or among You and
Aaron and/or Sara in plaintiff’s possession concerning the period from January 1, 2017, to
date; and it is further
ORDERED that plaintiff shall provide in Response to Request No 2 the relevant
documents and things, to the extent they are not privileged, as the sources and evidence are
gathered or acquired in plaintiff’s possession concerning the period from January 1, 2017, to
date; and it is further
1
1 of 5
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023
ORDERED that plaintiff has responded to Request No. 3 by providing authorizations
to obtain plaintiff’s medical records responsive to this request; and it is further
ORDERED that plaintiff has responded to Request No.4 by providing authorizations to
obtain plaintiff’s health records responsive to this request; and it is further
ORDERED that plaintiff shall provide in Response to request No. 5 all documents and
communications concerning any arrests, criminal charges, criminal convictions or criminal
conduct of plaintiff in plaintiff’s possession concerning the period from January 1, 2017, to
date; and it is further
ORDERED that plaintiff shall respond to Request No. 6 by responding to a certain
Subpoena Duces Tecum issued to NBR; and it is further
ORDERED that plaintiff shall not be required to provide responses to Request No 7 as
this Request is calculated to annoy and harass as it prematurely seeks merits-based
information still being sought and developed in preparation for trial; and it is further
ORDERED that plaintiff shall provide in Response to Request No 8 a Witness List as
one is now available; and it is further
ORDERED that plaintiff shall not be required to provide responses to Request No 9 as
this Request is calculated to annoy and harass as it prematurely seeks merits-based
information still being sought and developed in preparation for trial; and it is further
DEFENDANT’S SECOND RFP DATED 09-03-22 (NYSCEF 95)
ORDERED that plaintiff shall respond to Request No. 10 by providing any non-
privileged documents in plaintiff’s possession for the period January 1, 2017, to date as
requested; and it is further
ORDERED that plaintiff shall respond to request No. 11 by providing any non-
privileged documents in plaintiff’s possession for the period January 1, 2017, to date as
requested; and it is further
ORDERED that plaintiff shall respond to Request No.12 by providing any non-
privileged documents in plaintiff’s possession for the period January 1, 2017< to date; and it is
further
ORDERED that plaintiff does not have to respond to Requests Nos. 13-18 as said
requests are overly broad, burdensome and oppressive and not relevant, at this time, to the
instant action. These specific requests may become relevant as information to be provided by
the Plaintiff becomes available to the Defendant and may be subject to further inquiry; and it
is further
====================================================================
2. Defendant’s Omnibus Motion next sought an Order pursuant to CPLR 3042(c), CPLR
3101, and CPLR 3124 compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties LLC
2
2 of 5
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023
(“NBR Properties”) to: (2) produce documents responsive to Defendant’s Subpoena Duces
Tecum to NBR Properties and Defendant’s request for Plaintiff’s employment records from NBR
Properties:
NBR TO PRODUCE EMPLOYMENT RECORDS
By letter dated August 31, 2022 (NYSCEF #94) Defendant’s counsel sent a letter to NBR
Properties, LLC directing NBR to send employment records for the Plaintiff by September 19,
2022. Attached to said letter was an “Authorization to Use or Disclose Employment Records”
executed by Plaintiff and Acknowledged by Plaintiff’s counsel. The Court determines that there
is no reason why NBR Properties, LLC should not comply with this request. Accordingly, it is
ORDERED that NBR properties, LLC shall comply and produce all employment
records in its possession, custody, control for Plaintiff Neil B. Rice (DOB 07-16-97) for the
period January 1, 2017, to the present; and it is further
THE NBR SUBPOENA (NYSCEF #96)
By Subpoena Duces Tecum dated September 2, 2022, Defendant’s counsel sought a wide
ranging, intrusive and overly broad selection of “all documents and communications” concerning
the operations of the business entity known as NBR Properties, LLC., as set forth below. The
Court has reviewed the requests and makes the following findings that it is
ORDERED that NBR comply with the requests that are set forth below in BOLD
ITALIC writing ONLY and all other requests are considered overly broad and unduly
burdensome; and it is further
I. Documents sufficient to show all of Your owners, members; and
2. Documents sufficient to show all Real Properties owned or managed by You at any
point during the Period January 1, 2017, to date; and
4. All documents and communications concerning any purchase or sale, or potential
purchase or sale, of Real Properties by You at any point during the Period January 1, 2017, to
date; and it is further
=================================================================
3. Defendant’s Omnibus Motion (MX#5) next sought an Order pursuant to CPLR 3042(c),
CPLR 3101, and CPLR 3124 compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties
LLC (“NBR Properties”) to: (3) serve responses to Defendant’s First Set of Interrogatories and
Defendant’s Second Set of Interrogatories.
An issue is whether a party may demand both Responses to Interrogatories, and responses
to a Demand for a Bill of Particular It is said that interrogatories seek evidentiary matter, while
the purpose of bills of particular is to amplify the pleadings, limit proof and surprise at trial.
Medaris v Vosburgh 93 A.D.2d 882 (2nd Dept, 1983).
3
3 of 5
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023
ORDERED that defendants’ demand for plaintiffs Rice and NBR serve responses to
Defendant’s First Set of Interrogatories and Defendant’s Second Set of Interrogatories is
denied as said demand is considered untimely overly broad and unduly burdensome and
potentially duplicative; and it is further
===================================================================
4. Further, as part of the relief sought in defendants’ Omnibus Motion to Compel, defendant
also seeks to compel plaintiffs Rice and NBR to serve an amended bill of particulars.
Defendant’s Supplemental Demand for a Verified Bill of Particulars (NYSCEF Doc. #90) makes
three demands:
Demand No. 1: A detailed description of any physical and/or mental disease, illness,
disability, injury, or other condition experienced or suffered by Plaintiff from January 1,
2007 (sic 2017) to the present that preexisted and/or was not allegedly caused by his
interactions with Aaron and/or Sara Einsidler (the “Decedents”).
Demand No. 2: If a disease, illness, disability, injury, or other condition is claimed to
have been caused, aggravated, accelerated, or exacerbated by Decedents, specify in
detail the nature of each alleged condition and the name and present address of each
health care provider, if any, who ever provided treatment for the alleged condition.
Demand No. 3: State the name and present address of each physical or mental health
care provider (including health care facilities) that treated Plaintiff from January 1, 2007
to the present, the dates and places where treatment was received during that period, and
the nature of the treatment. Attach true copies of all written reports provided to you by
any such health care provider.
The Verified Complaint in this action (NYSCEF Doc #1) asserts causes of Action for
intentional and negligent infliction of emotional distress, tort, assault, and battery. In particular
plaintiff has specifically placed his mental health at issue in seeking monetary damages against
the defendant’s decedents. Paragraphs 11-13 discuss “plaintiff’s disability and mental illness:
Paragraph 20 states: “Plaintiff feared for his safety and intrusions…”; Paragraph 27 is very clear
and states: “Plaintiff’s mental, emotional, and physical states have suffered greatly since the
Aaron’s and Sarah’s assault due to the emotional damage of the assault itself as well as due to
the actual or potential impact on Plaintiff’s well-being, reputation, and ability to earn a
living.” (Emphasis added) Paragraphs 28-30 report medication, psychiatric interventions,
suicidal intentions and “significant mental trauma due to the emotional distress inflicted by
Aaron and Sarah.”. By reason that plaintiff has placed his mental health at the very crux of this
matter it is:
ORDERED that plaintiff respond and answer the aforesaid Demands number 1, 2
and 3 as set forth in Defendant’s Supplemental Demand for a Verified Bill of Particulars
specified below as follows:
Demand No. 1: A detailed description of any physical and/or mental disease, illness,
disability, injury, or other condition experienced or suffered by Plaintiff from January
4
4 of 5
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023
1, 2007 (sic 2017) to the present that preexisted and/or was not allegedly caused by his
interactions with Aaron and/or Sara Einsidler (the “Decedents”).
Demand No. 2: If a disease, illness, disability, injury, or other condition is claimed to
have been caused, aggravated, accelerated, or exacerbated by Decedents, specify in
detail the nature of each alleged condition and the name and present address of each
health care provider, if any, whoever provided treatment for the alleged condition.
Demand No. 3: State the name and present address of each physical or mental health
care provider (including health care facilities) that treated Plaintiff from January 1,
2007, to the present, the dates and places where treatment was received during that
period, and the nature of the treatment. Attach true copies of all written reports
provided to you by any such health care provider. And it is further
====================================================================
ORDERED that all responses set forth herein shall be provided by plaintiff to
defendants as they become available and no later than May 31, 2023; and it is further
ORDERED that counsel shall appear before the Court in person in Courtroom 1201,
at the Courthouse, 111 Dr. Martin Luther King, jr., Blvd, White Plains, NY 10601 on May 16,
2023, at 2:00 pm in Courtroom 1201.
Any relief not specifically granted herein is denied.
The forgoing constitutes the decision and order of this Court.
Dated: April 26, 2023
White Plains, New York
ENTER:
_________________________
Hon. Hal B. Greenwald, J.S.C.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after
service by a party upon the appellant of a copy of the judgment or order appealed from and
written notice of its entry, except that where the appellant has served a copy of the judgment or
order and written notice of its entry, the appeal must be taken within thirty days thereof.
TO: All counsel via NYSCEF
5
5 of 5
Preview
FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------X NEIL B. RICE, Plaintiff, Index No.: 61665/2021 -against- DECISION AND ORDER (Motion Sequence 5) LEE R. EINSIDLER, As Administrator of the Estate Of Aaron Michael Einsidler aka Aaron M. Einsidler, Defendant. ------------------------------------------------------------------X Greenwald, J.S.C. The following NYSCEF documents were reviewed and/or read by the Court in determining the within Decision and Order (Motion Sequence #5): NYSCEF documents numbers 1 4 8 9-10 14 16 18 25 29 32 34-36 46 47-49 53 57 59 61 64-67 75-79 81-83 86-125 128-134 **CORRECTION ** The relevant date is January 1, 2017 not 2007. Defendant moved by Notice of Omnibus Motion to Compel (Motion Sequence #5) (NYSCEF #81) filed October 12, 2022. The Court will deal with each individual relief Defendant sought as follows. 1. Defendant’s First Request for the Production of Documents and Things and Defendant’s Second Request for the Production of Documents and Things; Defendant sought an Order pursuant to CPLR 3042(c), CPLR 3101, and CPLR 3124 compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties LLC (“NBR Properties”) to: (1) produce documents responsive to Defendant’s First Request for the Production of Documents and Things and Defendant’s Second Request for the Production of Documents and Things. The Court has reviewed the various requests/ demands made by defendant and also reviewed the plaintiff’s prior responses. The Court has determined that the following requests shall be responded to by plaintiff on or before May 12, 2023. By reason of the foregoing, it is: ORDERED that plaintiff shall provide in Response to Request No1 all documents and communications concerning any meeting or communication between or among You and Aaron and/or Sara in plaintiff’s possession concerning the period from January 1, 2017, to date; and it is further ORDERED that plaintiff shall provide in Response to Request No 2 the relevant documents and things, to the extent they are not privileged, as the sources and evidence are gathered or acquired in plaintiff’s possession concerning the period from January 1, 2017, to date; and it is further 1 1 of 5 FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023 ORDERED that plaintiff has responded to Request No. 3 by providing authorizations to obtain plaintiff’s medical records responsive to this request; and it is further ORDERED that plaintiff has responded to Request No.4 by providing authorizations to obtain plaintiff’s health records responsive to this request; and it is further ORDERED that plaintiff shall provide in Response to request No. 5 all documents and communications concerning any arrests, criminal charges, criminal convictions or criminal conduct of plaintiff in plaintiff’s possession concerning the period from January 1, 2017, to date; and it is further ORDERED that plaintiff shall respond to Request No. 6 by responding to a certain Subpoena Duces Tecum issued to NBR; and it is further ORDERED that plaintiff shall not be required to provide responses to Request No 7 as this Request is calculated to annoy and harass as it prematurely seeks merits-based information still being sought and developed in preparation for trial; and it is further ORDERED that plaintiff shall provide in Response to Request No 8 a Witness List as one is now available; and it is further ORDERED that plaintiff shall not be required to provide responses to Request No 9 as this Request is calculated to annoy and harass as it prematurely seeks merits-based information still being sought and developed in preparation for trial; and it is further DEFENDANT’S SECOND RFP DATED 09-03-22 (NYSCEF 95) ORDERED that plaintiff shall respond to Request No. 10 by providing any non- privileged documents in plaintiff’s possession for the period January 1, 2017, to date as requested; and it is further ORDERED that plaintiff shall respond to request No. 11 by providing any non- privileged documents in plaintiff’s possession for the period January 1, 2017, to date as requested; and it is further ORDERED that plaintiff shall respond to Request No.12 by providing any non- privileged documents in plaintiff’s possession for the period January 1, 2017< to date; and it is further ORDERED that plaintiff does not have to respond to Requests Nos. 13-18 as said requests are overly broad, burdensome and oppressive and not relevant, at this time, to the instant action. These specific requests may become relevant as information to be provided by the Plaintiff becomes available to the Defendant and may be subject to further inquiry; and it is further ==================================================================== 2. Defendant’s Omnibus Motion next sought an Order pursuant to CPLR 3042(c), CPLR 3101, and CPLR 3124 compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties LLC 2 2 of 5 FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023 (“NBR Properties”) to: (2) produce documents responsive to Defendant’s Subpoena Duces Tecum to NBR Properties and Defendant’s request for Plaintiff’s employment records from NBR Properties: NBR TO PRODUCE EMPLOYMENT RECORDS By letter dated August 31, 2022 (NYSCEF #94) Defendant’s counsel sent a letter to NBR Properties, LLC directing NBR to send employment records for the Plaintiff by September 19, 2022. Attached to said letter was an “Authorization to Use or Disclose Employment Records” executed by Plaintiff and Acknowledged by Plaintiff’s counsel. The Court determines that there is no reason why NBR Properties, LLC should not comply with this request. Accordingly, it is ORDERED that NBR properties, LLC shall comply and produce all employment records in its possession, custody, control for Plaintiff Neil B. Rice (DOB 07-16-97) for the period January 1, 2017, to the present; and it is further THE NBR SUBPOENA (NYSCEF #96) By Subpoena Duces Tecum dated September 2, 2022, Defendant’s counsel sought a wide ranging, intrusive and overly broad selection of “all documents and communications” concerning the operations of the business entity known as NBR Properties, LLC., as set forth below. The Court has reviewed the requests and makes the following findings that it is ORDERED that NBR comply with the requests that are set forth below in BOLD ITALIC writing ONLY and all other requests are considered overly broad and unduly burdensome; and it is further I. Documents sufficient to show all of Your owners, members; and 2. Documents sufficient to show all Real Properties owned or managed by You at any point during the Period January 1, 2017, to date; and 4. All documents and communications concerning any purchase or sale, or potential purchase or sale, of Real Properties by You at any point during the Period January 1, 2017, to date; and it is further ================================================================= 3. Defendant’s Omnibus Motion (MX#5) next sought an Order pursuant to CPLR 3042(c), CPLR 3101, and CPLR 3124 compelling plaintiff Neil B. Rice (“Plaintiff”) and NBR Properties LLC (“NBR Properties”) to: (3) serve responses to Defendant’s First Set of Interrogatories and Defendant’s Second Set of Interrogatories. An issue is whether a party may demand both Responses to Interrogatories, and responses to a Demand for a Bill of Particular It is said that interrogatories seek evidentiary matter, while the purpose of bills of particular is to amplify the pleadings, limit proof and surprise at trial. Medaris v Vosburgh 93 A.D.2d 882 (2nd Dept, 1983). 3 3 of 5 FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023 ORDERED that defendants’ demand for plaintiffs Rice and NBR serve responses to Defendant’s First Set of Interrogatories and Defendant’s Second Set of Interrogatories is denied as said demand is considered untimely overly broad and unduly burdensome and potentially duplicative; and it is further =================================================================== 4. Further, as part of the relief sought in defendants’ Omnibus Motion to Compel, defendant also seeks to compel plaintiffs Rice and NBR to serve an amended bill of particulars. Defendant’s Supplemental Demand for a Verified Bill of Particulars (NYSCEF Doc. #90) makes three demands: Demand No. 1: A detailed description of any physical and/or mental disease, illness, disability, injury, or other condition experienced or suffered by Plaintiff from January 1, 2007 (sic 2017) to the present that preexisted and/or was not allegedly caused by his interactions with Aaron and/or Sara Einsidler (the “Decedents”). Demand No. 2: If a disease, illness, disability, injury, or other condition is claimed to have been caused, aggravated, accelerated, or exacerbated by Decedents, specify in detail the nature of each alleged condition and the name and present address of each health care provider, if any, who ever provided treatment for the alleged condition. Demand No. 3: State the name and present address of each physical or mental health care provider (including health care facilities) that treated Plaintiff from January 1, 2007 to the present, the dates and places where treatment was received during that period, and the nature of the treatment. Attach true copies of all written reports provided to you by any such health care provider. The Verified Complaint in this action (NYSCEF Doc #1) asserts causes of Action for intentional and negligent infliction of emotional distress, tort, assault, and battery. In particular plaintiff has specifically placed his mental health at issue in seeking monetary damages against the defendant’s decedents. Paragraphs 11-13 discuss “plaintiff’s disability and mental illness: Paragraph 20 states: “Plaintiff feared for his safety and intrusions…”; Paragraph 27 is very clear and states: “Plaintiff’s mental, emotional, and physical states have suffered greatly since the Aaron’s and Sarah’s assault due to the emotional damage of the assault itself as well as due to the actual or potential impact on Plaintiff’s well-being, reputation, and ability to earn a living.” (Emphasis added) Paragraphs 28-30 report medication, psychiatric interventions, suicidal intentions and “significant mental trauma due to the emotional distress inflicted by Aaron and Sarah.”. By reason that plaintiff has placed his mental health at the very crux of this matter it is: ORDERED that plaintiff respond and answer the aforesaid Demands number 1, 2 and 3 as set forth in Defendant’s Supplemental Demand for a Verified Bill of Particulars specified below as follows: Demand No. 1: A detailed description of any physical and/or mental disease, illness, disability, injury, or other condition experienced or suffered by Plaintiff from January 4 4 of 5 FILED: WESTCHESTER COUNTY CLERK 04/27/2023 08:20 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 04/26/2023 1, 2007 (sic 2017) to the present that preexisted and/or was not allegedly caused by his interactions with Aaron and/or Sara Einsidler (the “Decedents”). Demand No. 2: If a disease, illness, disability, injury, or other condition is claimed to have been caused, aggravated, accelerated, or exacerbated by Decedents, specify in detail the nature of each alleged condition and the name and present address of each health care provider, if any, whoever provided treatment for the alleged condition. Demand No. 3: State the name and present address of each physical or mental health care provider (including health care facilities) that treated Plaintiff from January 1, 2007, to the present, the dates and places where treatment was received during that period, and the nature of the treatment. Attach true copies of all written reports provided to you by any such health care provider. And it is further ==================================================================== ORDERED that all responses set forth herein shall be provided by plaintiff to defendants as they become available and no later than May 31, 2023; and it is further ORDERED that counsel shall appear before the Court in person in Courtroom 1201, at the Courthouse, 111 Dr. Martin Luther King, jr., Blvd, White Plains, NY 10601 on May 16, 2023, at 2:00 pm in Courtroom 1201. Any relief not specifically granted herein is denied. The forgoing constitutes the decision and order of this Court. Dated: April 26, 2023 White Plains, New York ENTER: _________________________ Hon. Hal B. Greenwald, J.S.C. Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that where the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. TO: All counsel via NYSCEF 5 5 of 5