Motion for Substituted Service in Richard J. Digeronimo, R.D. Geronimo, Ltd v. Property Analytix, Llc, Archstone Group Nyc Llc, Michael Miller, Royce Ashton Rowles, Ryan Lin| Trellis.Law

On January 05, 2022 a Motion-Secondary was filed involving a dispute between R.D. Geronimo, Ltd, Richard J. Digeronimo, and Archstone Group Nyc Llc, Michael Miller, Property Analytix, Llc, Royce Ashton Rowles, Ryan Lin, for Commercial Division - Contract in the District Court of Nassau County.

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FILED: WESTCHESTER COUNTY CLERK 10/24/2022 03:35 PM INDEX NO. 61665/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

NEIL B. RICE,

Plaintiff,
Index No. 61665/2021
-against-
Hon. Damaris E. Torrent
LEE R. EINSIDLER, as Administrator of the Estate of
Aaron M. Einsidler,

Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S MOTION TO COMPEL DISCOVERY

YANKWITT LLP

Russell M. Yankwitt
Jonathan Ohring
140 Grand Street, Suite 705
White Plains, New York 10601
Tel.: (914) 686-1500
russell@yankwitt.com
jonathan@yankwitt.com
Attorneys for Defendant Lee R. Einsidler

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 3
A. Aaron’s Death and His Personal Belongings ................................................................ 3
B. Plaintiff’s Allegations ................................................................................................... 3
C. Plaintiff’s Document Requests ..................................................................................... 4
ARGUMENT .................................................................................................................................. 5
I. UNLOCKING AARON’S PHONE REQUIRES A COURT ORDER, AND ANY SUCH
ORDER MUST DIRECT APPLE TO PROVIDE DEFENDANT ACCESS TO THE
PHONE, NOT PLAINTIFF ..................................................................................................... 5
II. PLAINTIFF’S REQUEST FOR INSPECTION OF THE PHONE SHOULD
BE DENIED ............................................................................................................................ 9
III. PLAINTIFF’S REQUESTS FOR IRRELEVANT INFORMATION SHOULD
BE DENIED .......................................................................................................................... 10
A. Unobjectionable Requests ........................................................................................... 10
B. Objectionable Requests ............................................................................................... 11
IV. ACCESS TO AARON’S AUTOPSY PHOTOGRAPHS SHOULD BE STRICTLY
LIMITED ............................................................................................................................... 15
CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES

Cases Page(s)

Accent Collections, Inc. v. Cappelli Enterprises, Inc.,
84 A.D.3d 1283 (2d Dep’t 2011)................................................................................................. 9
Apple Bank for Sav. v Noah’s Route 110, Inc.,
210 A.D.2d 277 (2d Dept 1994) ................................................................................................ 14
Auerbach v. Klein,
30 A.D.3d 451 (2d Dep’t 2006)................................................................................................. 13
Buxbaum v. Castro,
82 A.D.3d 925 (2d Dep’t 2011)................................................................................................. 10
City of New York v. 330 Cont. LLC,
2010 N.Y. Slip Op. 31532 (Sup. Ct. N.Y. Cty. June 2, 2010) .................................................. 14
Diaz v. Lukash,
82 N.Y.2d 211 (1993) ................................................................................................................ 16
Evans v. Roman,
172 A.D.3d 501 (1st Dep’t 2019) .............................................................................................. 10
Figueroa v. Keyspan Corp.,
59 Misc. 3d 1211(A) (Sup. Ct. Suffolk Cty. 2017) ................................................................... 12
Gilman & Ciocia, Inc. v. Walsh,
45 A.D.3d 531 (2d Dep’t 2007)................................................................................................... 9
Herold Co. v. Murray,
136 A.D.2d 954 (4th Dep’t 1988).............................................................................................. 16
McCann v. Harleysville Ins. Co. of New York,
78 A.D.3d 1524 (4th Dep’t 2010).............................................................................................. 13
Prink v. Rockefeller Center, Inc.,
48 N.Y.2d 309 (1979) .......................................................................................................... 14, 15

Statutes

Estates, Powers and Trusts Law § 13-A ................................................................................ 6, 7, 8

Rules

CPLR 3101(a) ................................................................................................................................. 9
CPLR 4502(b) ............................................................................................................................... 14

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Defendant Lee R. Einsidler (“Defendant”), as administrator of the estate of his son Aaron

M. Einsidler (“Aaron”), respectfully submits this memorandum of law in opposition to plaintiff

Neil B. Rice’s (“Plaintiff”) motion to compel discovery (Doc. No. 75) (“Motion to Compel”).1

PRELIMINARY STATEMENT

One year after the tragic deaths of Aaron and his wife Sara, Plaintiff commenced this action

against Defendant, as administrator of Aaron’s estate, alleging that prior to their deaths, Aaron and

Sara subjected Plaintiff to months of harassment and bullying through text messages and other

communications, culminating in an alleged physical assault on Plaintiff “on or about November

2019.” (Compl. ¶ 23.) Plaintiff asserts various intentional torts against Defendant as Aaron’s

estate representative and seeks a whopping $15 million in damages based on his threadbare

allegations. As discussed in Defendant’s omnibus motion to compel (which is being briefed in

parallel with Plaintiff’s Motion to Compel), despite these salacious allegations and very serious

claims against Aaron, Plaintiff has failed to produce a single document in this action.

Without a shred of evidence to support his claims, Plaintiff commenced a fishing

expedition, seeking a broad range of highly personal and irrelevant documents and information.

Plaintiff’s requests can be broken down into two categories: requests for Aaron’s documents and

information (which are now in the possession of Defendant) and requests for Defendant’s

documents and information.

1
“Moving Affirmation” or “Moving Aff.” refers to the Affirmation in Support of Plaintiff’s Motion to Compel
Discovery submitted by Steven M. Brunnlehrman (Doc. No. 76). “Rice Affidavit” or “Rice Aff.” refers to the
Affidavit in Support of Plaintiff’s Motion to Compel Discovery submitted by Plaintiff (Doc. No. 77). “Einsidler Aff.”
refers to the Affidavit of Lee R. Einsidler in support of this Opposition, filed contemporaneously herewith. “Ohring
Aff.” refers to the Affirmation of Jonathan Ohring in Support of Defendant’s Opposition to Plaintiff’s Motion to
Compel Discovery, filed contemporaneously herewith, and “Ex. __” refers to the exhibits thereto. “Compl.” or
“Complaint” refers to Plaintiff’s Verified Complaint (Doc. No. 1). Unless otherwise indicated, internal alterations,
citations, and quotation marks are omitted from case citations.

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As to the requests for Aaron’s documents and information, Defendant has a very limited

set of physical documents and materials, which were already reviewed and produced if responsive

to Plaintiff’s document requests. While Plaintiff has also requested the production of certain

information from Aaron’s iPhone (the “Phone”), the Phone is locked and Defendant does not have

Aaron’s username or passcode, and Apple will not provide access to the Phone’s contents without

a court order. As to the requests for Defendant’s documents and information, Plaintiff has sought

a broad swath of materials that are irrelevant to this action, including Defendant’s credit card

statements, phone records, and communications with various individuals. Defendant rightly

objected to production of these materials, and after Plaintiff refused to modify his requests during

the meet-and-confer process, Plaintiff filed the instant Motion to Compel.

As set forth below, the Motion to Compel drops Plaintiff’s pursuit of a majority of his

requests, but continues to seek information that is irrelevant to his claims and highly invasive to

Aaron’s and Defendant’s privacy. In particular, while Defendant has no objection to entry of an

order directing Apple to provide Defendant with access to the Phone’s contents and data, Plaintiff’s

request that he be permitted to inspect the Phone should be denied. The Phone is certain to contain

a bevy of Aaron’s private communications and information that are irrelevant to Plaintiffs’ claims,

as well as privileged information. Nor has Plaintiff provided any reason why inspection of the

Phone itself is needed. As with typical disclosure practice, Defendant is entitled to review any

available contents and data from the Phone to determine if it contains any responsive, non-

privileged information, which would then be produced. As to the remainder of the requests in the

Motion to Compel, while Defendant has no objection to certain requests, others are highly

objectionable and should be denied.

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FACTUAL BACKGROUND

A. Aaron’s Death and His Personal Belongings

Aaron and Sara died tragically on August 11, 2020, following the birth of their daughter

three weeks earlier. (Einsidler Aff. ¶ 3.) Defendant was appointed administrator of Aaron’s estate

and continues to serve in that capacity. (Id. ¶ 4.)

Following Aaron’s death, Defendant took possession of a limited set of physical materials

that had belonged to Aaron. (Id. ¶ 5.) However, the police took custody of Aaron’s Phone. (Id.

¶ 6.) Following their investigation of Aaron’s death, the police returned the Phone to Defendant.

(Id. ¶ 7.) Upon Defendant’s receipt of the Phone, it was locked, and it remains locked to this day.

(Id. ¶ 8.) Defendant does not have Aaron’s username (Apple ID) or passcode to the Phone and

Defendant is therefore unable to unlock the Phone to access its contents or data. (Id.) Defendant’s

understanding is that Apple will not provide Defendant with access to contents or data from the

Phone without a court order. (Id. ¶ 9.)

B. Plaintiff’s Allegations

Approximately one year after their deaths, while Aaron’s estate was in administration in

Surrogate’s Court, Plaintiff served notice of a claim against the estate and filed the Complaint in

this action against Defendant in his capacity as administrator of the estate.

In his Complaint, Plaintiff alleges that after meeting Aaron and Sara in “early winter of

2018” (Compl. ¶ 7), the couple subjected him to “continuous and ongoing” bullying and

harassment, “consisting of disparaging remarks, phone calls, and texts, culminating during

quarantine and just prior to” their deaths in August 2020 (id. ¶ 10). Plaintiff further alleges that

“[o]n or about November 2019, Aaron and Sara met Plaintiff near Charles and Darlington Roads,”

where they “physically assaulted” him. (Id. ¶¶ 23-24.)

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Based on these allegations, Plaintiff has asserted claims against Aaron’s estate for

intentional and negligent infliction of emotional distress, assault, battery, and prima facie tort,

claiming entitlement to $15 million in damages. (Id. ¶¶ 31-63.)

C. Plaintiff’s Document Requests

On or about May 18, 2022, Plaintiff served his First Notice of and Demand for Discovery

and Inspection, containing thirty (30) document requests (the “Document Requests”). (See Ex. A.)

On June 17, 2022, Defendant served his responses and objections to the Document Requests,

indicating that he possessed no documents responsive to certain requests, while objecting to others

on numerous grounds. (See Ex. B.)

On August 31, 2022, Defendant transmitted a production of documents to Plaintiff.

(Ohring Aff. ¶ 5.) The documents consisted of copies of certain physical materials of Aaron that

Defendant had obtained possession of following Aaron’s death and that were responsive to

Plaintiff’s Document Requests, including Aaron’s driver’s license, résumé, and a certification of

training in nonviolent crisis intervention. (Id.)

As discussed in Defendant’s omnibus motion to compel, to date, Plaintiff has not produced

a single document in this action. (See Doc. No. 82.) At the request of the undersigned, counsel

for the parties met-and-conferred regarding Plaintiff’s failure to produce documents, during which

Plaintiff’s counsel raised purported issues with Defendant’s response to Plaintiff’s Document

Requests. The parties were unable to resolve their disputes during the meet-and-confer process

and, following a pre-motion conference with the Court’s principal law clerk, were granted

permission by the Court to file competing motions to compel. (See Doc. No. 72.)2

2
The parties also previously filed competing motions to compel the production of certain medical and other
authorizations. (See Doc. Nos. 34, 47.) Specifically, Defendant sought an order compelling Plaintiff to provide
authorizations for the release of mental health and drug and alcohol treatment records for the period January 2007 to
the present (see Doc. Nos. 47, 48), and Plaintiff sought an order compelling Defendant to provide authorizations for

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The instant Motion to Compel followed. For the first time, Plaintiff appears no longer to

be pursuing a majority of the Document Requests,3 while narrowing one request (Request No. 1)

and expanding two requests (Request Nos. 2 and 3).

ARGUMENT

I. UNLOCKING AARON’S PHONE REQUIRES A COURT ORDER, AND ANY
SUCH ORDER MUST DIRECT APPLE TO PROVIDE DEFENDANT ACCESS TO
THE PHONE, NOT PLAINTIFF.

As previously explained to Plaintiff’s counsel during the meet-and-confer process, and to

the Court during the pre-motion conference, Defendant does not have Aaron’s username (the

Apple ID) or passcode to the Phone and therefore is unable to unlock it. (Einsidler Aff. ¶ 8.) It is

Defendant’s understanding that Apple will not provide access to the Phone absent a court order.

(Id. ¶ 9.)

Based on Plaintiff’s assertion that the Phone may have information relevant to his claims,

the Motion to Compel requests an order directing Apple to “provide access to [Aaron’s] cell phone

for the purpose of obtaining photo(s) allegedly taken on or about November 2019 during the

alleged assault against Plaintiff as well as to provide texts and phone records of communications

between Decedent and Plaintiff.” (Motion to Compel at 1; Moving Aff. at 5-6.)

It is unclear from Plaintiff’s request whether he is seeking an order directing Apple to

provide Defendant with access to the phone, or if he is seeking access himself. Defendant does

physician/hospital/autopsy records, employment records, and psychiatric or psychological treatment records of Aaron.
(See Doc. Nos. 34, 36.) On August 19, 2022, the Court issued orders (i) granting Defendant’s motion in its entirety
and (ii) denying Plaintiff’s motion except as to his request for a redacted copy of Aaron’s autopsy report removing all
information other than the narrative portion describing any tattoos on Aaron’s body. (See Doc. Nos. 66, 67.)
3
While Plaintiff’s notice of motion seeks an order directing Defendant to respond to “all outstanding discovery
demands” (Doc. No. 75), the Moving Affirmation and Rice Affidavit submitted in support of the Motion to Compel
state that Plaintiff is seeking an order directing Defendant to respond to Plaintiff’s discovery demands “as amended”
and specifically enumerates certain requests (see Moving Aff. at 4-5, subpart (A)(i)-(xii); Rice Aff. at 5-6, subpart
(A)(i)-(xii)). Plaintiff does not appear to be seeking relief with respect to Request Nos. 11-27 and 29 from his
Document Requests, which are not addressed anywhere in his submissions, and Defendant therefore does not address
those Requests herein.

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not object to entry of an order directing Apple to provide Defendant with access to the Phone. But

any such order should not provide for Plaintiff to have access.

In New York, the procedure for accessing a decedent’s digital assets4 is governed by New

York’s version of the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), enacted

in 2016 and codified at Article 13-A of the Estates, Powers and Trusts Law (“EPTL”). The Act

divides digital assets into two categories: “content[s] of electronic communications” and non-

content digital assets. “Content[s] of electronic communications” is defined as “information

concerning the substance or meaning of the communication which (1) has been sent or received

by a user; (2) is in electronic storage by a custodian providing an electronic-communication service

to the public or is carried or maintained by a custodian providing a remote-computing service to

the public; and (3) is not readily accessible to the public.”5 EPTL § 13-A-1(e). This would include,

for example, emails and text messages. See Turano, Practice Commentaries, EPTL § 13-A-3.1

(2017). By contrast, non-content assets would include, for example, a “catalogue” of electronic

communications sent or received by the user. See EPTL § 13-A-3.2; Turano, Practice

Commentaries, EPTL § 13-A-3.2 (2017).

The “[c]ontents of electronic communications” of a deceased user (i.e., Aaron) can be

disclosed by the custodian (i.e., Apple) only with the prior consent of the user or upon a court

order, and even then, only “to the executor, administrator or personal representative of the estate

of the user” (i.e., Defendant). ETPL § 13-A-3.1 (emphasis added). To obtain the contents, the

“executor, administrator or representative” must provide:

(a) a written request for disclosure in physical or electronic form;

4
Under the Act, a “digital asset” is defined as “an electronic record in which an individual has a right or interest.”
EPTL § 13-A-1(i).
5
A “user” is defined as “a person that has an account with a custodian.” EPTL § 13-A-1(y). A “custodian” is defined
as “a person that carries, maintains, processes, receives, or stores a digital asset of a user.” Id. § 13-A-1(g).

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(b) a copy of the death certificate of the user;

(c) a certified copy of the letter of appointment of the executor, administrator, or
personal representative or a small-estate affidavit or court order; [and]

(d) unless the user provided direction using an online tool, a copy of the user’s will,
trust, or other record evidencing the user’s consent to disclosure of the content of
electronic communications.

Id.

In addition, “if requested by the custodian[,]” the “executor, administrator or

representative” must also provide:

(1) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the user’s account;

(2) evidence linking the account to the user; or

(3) a finding by the court that:

(A) the user had a specific account with the custodian, identifiable by the
information specified in subparagraph (1);

(B) disclosure of the content of electronic communications of the user
would not violate 18 U.S.C. section 2701 et seq., as amended, 47 U.S.C.
section 222, as amended, or other applicable law;

(C) unless the user provided direction using an online tool, the user
consented to disclosure of the content of electronic communications; or

(D) disclosure of the content of electronic communications of the user is
reasonably necessary for administration of the estate.

Id. § 13-A-3.1(e) (emphasis added).

For non-content digital assets (as opposed to contents) to be disclosed to an estate

representative, similar requirements must be met. See id. § 13-A-3.2 (enumerating requirements).

Consistent with the Act, Apple allows estate representatives to request access to a

decedent’s Apple ID and data with a court order. (See Ex. C.) The court order must specify:

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• The name and Apple ID of the deceased person.6

• The name of the next of kin who is requesting access to the decedent’s account.

• That the decedent was the user of all accounts associated with the Apple ID.

• That the requestor is the decedent’s legal personal representative, agent, or heir,
whose authorization constitutes “lawful consent.”

• That Apple is ordered by the court to assist in the provision of access to the
decedent’s information from the deceased person’s accounts. The court order
should be addressed to the relevant Apple entity.

(Id.)

Consistent with the Act and Apple’s policies, a court order is required to obtain access to

the Phone’s contents. Defendant does not object to entry of an order directing Apple to provide

access to Defendant, as administrator of Aaron’s estate. But as discussed above, any such order

must be limited to providing Defendant access. Neither the EPTL nor Apple’s policies

contemplate or permit any other person obtaining access. And, as discussed below, it would be

entirely improper to provide Plaintiff with unfettered access to the Phone. Therefore, to the extent

that Plaintiff requests an order directing Apple to provide Plaintiff access, that request must be

denied.

Lastly, the Act allows a custodian to assess a “reasonable administrative charge” for the

cost of disclosing digital assets. EPTL § 13-A-2.4(b). To the extent that there are any charges

associated with obtaining access to the Phone, Plaintiff should be required to pay or reimburse

Defendant for those charges. The only reason access is being sought is based on Plaintiff’s request.

Thus, it is only fair that Plaintiff bear any cost of obtaining access.

6
It is Defendant’s understanding that where, as here, the Apple ID is not known, the name, phone number, and address
of the user may be sufficient. (See Ex. D at 12.)

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II. PLAINTIFF’S REQUEST FOR INSPECTION OF THE PHONE SHOULD BE
DENIED.

In his Motion to Compel, Plaintiff requests an order “[d]irecting Defendant to deliver

[Aaron’s] cell phone to Plaintiff, or alternatively, to provide Plaintiff access to [Aaron’s] cell

phone.” (Motion to Compel at 1; Moving Aff. at 6.) Plaintiff’s request should be denied.

While the CPLR provides for “full disclosure of all matter material and necessary in the

prosecution or defense of an action[,]” CPLR 3101(a), it is well-settled that “the principle of ‘full

disclosure’ does not give a party the right to uncontrolled and unfettered disclosure, and the trial

courts have broad power to regulate discovery to prevent abuse.” Gilman & Ciocia, Inc. v. Walsh,

45 A.D.3d 531 (2d Dep’t 2007) (emphasis added). “Generally, the supervision of disclosure is left

to the broad discretion of the trial court, which must balance the parties’ competing interests.”

Accent Collections, Inc. v. Cappelli Enterprises, Inc., 84 A.D.3d 1283, 1283 (2d Dep’t 2011).

It would be entirely inappropriate to allow Plaintiff unfettered access to the Phone. The

specific information sought by Plaintiff from the Phone is limited to photographs or videos of the

alleged assault and certain communications between Aaron, on the one hand, and Plaintiff,

Defendant, Sara, or Aaron’s mother, on the other hand. (See Moving Aff. at 4-5, subparts (i), (iv),

(viii), (ix).) Meanwhile, the Phone is certain to have a plethora of highly personal communications

and other content that is entirely irrelevant to this case and unresponsive to Plaintiff’s document

requests. Moreover, the Phone is highly likely, if not certain, to contain privileged information,

including information protected by spousal privilege, attorney-client privilege, and physician-

patient or psychologist-patient privilege.

Allowing Plaintiff to have unfettered access to the Phone would be akin to requiring a

producing party to provide the requesting party with unconstrained access to a computer to search

through electronic files or their home office to search through hard copy files. That is not how

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discovery works. Defendant and his counsel should have the opportunity to review the Phone

themselves to identify any information that must be produced in light of the Court’s resolution of

Plaintiff’s specific requests in the Motion to Compel and to redact or withhold any privileged

information. See, e.g., Buxbaum v. Castro, 82 A.D.3d 925 (2d Dep’t 2011) (noting that requesting

party did not have right to “uncontrolled and unfettered disclosure” and affirming Supreme Court

order denying motion to direct the defendant to permit the plaintiff to inspect computer equipment

possessed by the defendant); Evans v. Roman, 172 A.D.3d 501, 502 (1st Dep’t 2019) (reversing

Supreme Court order directing plaintiff to produce her cell phone).

III. PLAINTIFF’S REQUESTS FOR IRRELEVANT INFORMATION SHOULD BE
DENIED.

In the Motion to Compel, Plaintiff seeks an order compelling Defendant to produce

documents in response to certain enumerated demands set forth in the Moving Affirmation. (See

Moving Aff. at 4-5, subparts (A)(i)-(xii).) As discussed below, while Defendant has no objection

to two of Plaintiff’s requests, the remainder should be denied.

A. Unobjectionable Requests

Defendant’s Communications with Aaron Regarding Plaintiff. In his Document

Requests, Plaintiff sought all “papers, letters, text messages, communications, and

correspondence” between Defendant and Aaron for the three-and-a-half year period before

Aaron’s death. (Ex. A at 1, 3-4 (request (d)(1)).) Defendant justifiably objected to this request on

the grounds that it was grossly overbroad, sought irrelevant information, and improperly invaded

the privacy of Defendant and Aaron.

Rather than modifying his request during the meet-and-confer process, Plaintiff has now

narrowed his request in his Motion to Compel to seek only those “papers, letters, text messages,

communications, and correspondence” between Defendant and Aaron that “discuss or refer to

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Plaintiff.” (Moving Aff. at 4, subpart (A)(i); see also id. ¶ 20.) As modified, Defendant has no

objection to Plaintiff’s request. However, Defendant has not been able to locate any documents

responsive to the request. (Einsidler Aff. ¶ 11.)

Communications Between Defendant and Plaintiff. Defendant has no objection to

producing communications between him and Plaintiff. (See Moving Aff. at 5, subpart (A)(x).)

However, Defendant has not been able to locate any documents responsive to this request.

(Einsidler Aff. ¶ 12.)

B. Objectionable Requests

Defendant’s Credit Card and PayPal Statements. While Plaintiff’s Document Requests

sought Defendant’s credit card and PayPal statements for the period between March 1, 2019 and

May 31, 2019, Plaintiff has actually expanded that request in his Motion to Compel by five months

to now include the eight-month period from February 1, 2019 through September 30, 2019. (See

Moving Aff. at 5, subpart (A)(ii); see also id. ¶¶ 21, 23.) Plaintiff’s request should be denied.

The sole basis for Plaintiff’s request is his assertion that “[o]n or about April of 2019,” he

saw Defendant at the Shell gas station at 848 South Bedford Road in Bedford, New York, and

attempted to inform Defendant of Aaron’s “concerning behavior directed towards Plaintiff,” but

Defendant refused to discuss his son with Plaintiff. (Id. ¶¶ 6, 8.) Plaintiff asserts that Defendant’s

credit card and PayPal statements “will confirm or deny Defendant’s presence at the specific Shell

station to which Plaintiff has asserted as the location of Plaintiff’s attempt to discuss [Aaron’s]

behavior with Defendant.” (Id. ¶ 22.)

Plaintiff fails to remotely justify his request. Even if Defendant’s credit card or PayPal

statements showed purchases at the gas station, all that would show is the unremarkable fact that

Defendant may have purchased gasoline or refreshments at the gas station near his home at some

point(s) during the eight-month period. (See Einsidler Aff. ¶ 2 (noting Defendant’s residence in

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North Salem, New York.) It would not in any way support that Plaintiff met Defendant there or

reveal the content of any supposed conversation. Thus, Defendant’s credit card and PayPal

statements would not provide any probative information.

Moreover, the request is exceedingly intrusive and overbroad. Defendant’s credit card and

PayPal statements contain records of his purchases that are entirely irrelevant to Plaintiff’s claims.

In addition, Plaintiff seeks Defendant’s credit card and PayPal statements for an eight-month

period, stretching beyond what was even in his Document Requests, even though he claims to have

met Defendant at the gas station “[o]n or about April of 2019.” (Rice Aff. ¶ 5.)

Finally, granting Plaintiff access to information about Defendant’s visits to his local gas

station would simply allow him to tailor his claims based on the information provided. Whatever

purchases at the gas station are shown on the credit card statements, Plaintiff will simply claim

that he encountered Defendant there on one of those dates. The Court should not countenance this

tactic. Plaintiff’s request should be denied as an improper fishing expedition.

Defendant’s Phone Records. Plaintiff’s request for Defendant’s phone records for the

eleven-month period between October 1, 2019 and September 1, 2020 should be denied. (See

Moving Aff. at 5, subpart (A)(iii).)7 Plaintiff has provided no justification for obtaining them. A

log of Defendant’s phone calls over an eleven-month period would not possibly provide relevant

evidence or information that is reasonably likely to lead to the discovery of relevant evidence. All

it would show is that Defendant made or received phone calls. Nor is there even any allegation

that Defendant made any relevant calls (let alone at any particular time). See Figueroa v. Keyspan

Corp., 59 Misc. 3d 1211(A) (Sup. Ct. Suffolk Cty. 2017) (“in recognition of the privacy interests

that are potentially implicated, courts, before compelling disclosure of records showing the use of

7
Plaintiff actually expanded the time period from that sought in his Document Requests by one month. (See Ex. A
at 4 (request (d)(3)) (seeking phone records through August 1, 2020).)

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[mobile electronic] devices, have generally required some threshold showing indicative of, or at

least consistent with, cellphone or other electronic device use at the relevant time”). Production

of Defendant’s phone records would also be highly intrusive and reveal personal information that

is of no relevance in this action. Plaintiff’s request should therefore be denied.

Communications Between Defendant and Sara or Daniele Churchill. Plaintiff’s request

for “[a]ny and all papers, letters, text messages, communications, and correspondence” between

Defendant and Aaron’s wife Sara (Moving Aff. at 5, subpart (A)(vi)) or between Defendant and

his ex-wife Daniele Churchill regarding Aaron (see id., subpart (A)(vii)) should be denied.

Plaintiff has not offered any reason why these private communications of Defendant—who is a

party based only on his role as administrator of Aaron’s estate—are relevant, and the “mere hope”

that they may reveal relevant information is insufficient. McCann v. Harleysville Ins. Co. of New

York, 78 A.D.3d 1524, 1525 (4th Dep’t 2010) (citing Auerbach v. Klein, 30 A.D.3d 451, 452 (2d

Dep’t 2006)).

Aaron’s Cell Phone and Phone Records. For the reasons discussed above, see Argument

§ II, Plaintiff’s request to inspect the Phone for photographs, videos, and text messages between

or involving Aaron and Plaintiff (see Moving Aff. at 5, subpart (A)(iv)) should be denied. To the

extent that Defendant obtains access to the Phone or its contents or data, Defendant will conduct a

search for any photographs or videos of Plaintiff taken in November 2019 (the time that Plaintiff

alleges he was assaulted by Aaron), and will produce any responsive photographs or videos.

However, Defendant should not be required to search the Phone for text messages between

Plaintiff and Aaron. Any text messages between Plaintiff and Aaron should already be in

Plaintiff’s possession, and Plaintiff has not provided any reason why they would not be. It is

alarming that, more than one year after the commencement of this action, and despite his claims

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of continuous harassment by Aaron over text messages, Plaintiff has not produced any of his own

communications (including any communications with Aaron) or provided any reason why he

cannot. Plaintiff’s request for his own text messages with Aaron should therefore be denied. See

City of New York v. 330 Cont. LLC, Index No. 406350/07, 2010 N.Y. Slip Op. 31532 (Sup. Ct.

N.Y. Cty. June 2, 2010) (“Generally, a party should not be directed to produce documents that are

already in the possession of the demanding party.”) (citing Apple Bank for Sav. v Noah’s Route

110, Inc., 210 A.D.2d 277 (2d Dept 1994)).

For similar reasons, Plaintiff’s request for Aaron’s phone records (see Moving Aff. at 5,

subpart (A)(v)) should be denied. A record of Aaron’s calls over a three-and-a-half year period

will provide no relevant evidence, and Plaintiff has made no attempt to explain why any such

information would be relevant. To the extent Plaintiff is seeking information regarding phone

calls between him and Aaron, he should already have that information. Indeed, Plaintiff already

subpoenaed Verizon for his own call records and obtained them from Verizon a year ago. (See

Exs. E, F.) There is no reason (and no reason offered) why Plaintiff cannot provide or obtain

records of calls between him and Aaron on his own.

Communications Between Aaron and Sara. Plaintiff’s request for “[a]ny and all papers,

letters, text messages, communications, and correspondence” between Aaron and his wife Sara

(Moving Aff. at 5, subpart (A)(viii)) should be denied. Any such communications are subject to

spousal privilege, see CPLR 4502(b), which survives the death of either or both spouses, see Prink

v. Rockefeller Center, Inc., 48 N.Y.2d 309, 314 (1979). That privilege “was born of the recognition

that the privacy surrounding the marital relation should be held inviolate in order to foster mutual

confidence between husband and wife.” Id. at 319 (Cooke, C.J., dissenting). “Such confidence

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should not be destroyed by forces outside the marriage, whether by legal compulsion or

otherwise.” Id. There is no basis for invading the privilege here.

Communications Between Aaron and His Mother. Plaintiff’s request for “[a]ny and all

papers, letters, text messages, communications, and correspondence” between Aaron and his

mother, Ms. Churchill (Moving Aff. at 5, subpart (A)(ix)), should be denied. Plaintiff offers no

reason why these private communications are relevant. Indeed, Ms. Churchill is not even

mentioned in the Complaint. The request is nothing more than a fishing expedition.

Aaron’s Diaries and Calendars. Plaintiff seeks “[a]ny diary, datebook, personal calendar,

appointment book, or other personal organizer” used by Aaron. (Moving Aff. at 5, subpart

(A)(xi)).) This request should be denied as overbroad and seeking irrelevant information. In any

event, Defendant has not been able to locate any documents responsive to the request. (Einsidler

Aff. ¶ 13.)

Catch-All Request. Lastly, Plaintiff includes a catch-all request for “[a]ll other documents,

letters, books, papers, writings and records whatsoever in your possession or under your control,

containing material any way [sic] relating to the matters in question in this proceeding.” (Moving

Aff. at 5, subpart (A)(xii).) This request should be denied as indecipherable and overbroad. It is

impossible for Defendant to comprehend what is meant by material in “any way relating to the

matters in question in this proceeding,” and such a request potentially could encompass documents

that are entirely irrelevant to Plaintiff’s claims.

IV. ACCESS TO AARON’S AUTOPSY PHOTOGRAPHS SHOULD BE STRICTLY
LIMITED.

In his Motion to Compel, Plaintiff requests an order directing the custodian of Aaron’s

autopsy records to release to Plaintiff photograph(s) of any tattoos around Aaron’s “pubic area.”

(Motion to Compel at 1; Moving Aff. at 5.) Although Defendant believes that disclosure of any

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such photographs is unwarranted, D

Case Info

Judge

Sharon Gianelli Track Judge’s New Case

Case No.

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Document Filed Date

October 24, 2022

Case Filing Date

January 05, 2022

County

Parties

Archstone Group NYC LLC Defendant
FILOSA, ANTHONY RUDY Attorney for the Plaintiff
KATZ, KENNETH J Attorney for the Defendant
Michael Miller Defendant
Property Analytix, LLC Defendant
R.D. Geronimo, LTD Plaintiff
Richard J. Digeronimo Plaintiff
RIGER, LEE E. Attorney for the Plaintiff
ROSENBERG, DAVID I. Attorney for the Plaintiff
Royce ashton Rowles Defendant
Ryan Lin Defendant
SACKOWITZ, ADAM JOSEPH Attorney for the Defendant

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Motion-Secondary: Richard J. Digeronimo, R.D. Geronimo, Ltd v. Property Analytix, Llc, Archstone Group Nyc Llc, Michael Miller, Royce Ashton Rowles, Ryan Lin

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