Motion to Compel in Cushman & Wakefield, Inc. v. Lawrence Tannenbaum| Trellis.Law

On January 24, 2018 a Exhibit,Appendix was filed involving a dispute between Cushman & Wakefield, Inc., and Lawrence Tannenbaum, for Commercial - Contract in the District Court of New York County.

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FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 08/10/2023

Exhibit H
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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.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
OMNIBUS MOTION TO COMPEL

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

TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 3
A. Plaintiff’s Allegations ................................................................................................... 3
B. Plaintiff’s Wholesale Discovery Failures ..................................................................... 4
1. Document Requests ............................................................................................. 5
2. Requests to NBR Properties................................................................................. 5
3. Interrogatories ...................................................................................................... 6
4. Demands for Bill of Particulars ........................................................................... 7
LEGAL STANDARDS GOVERNING DISCLOSURE ................................................................ 8
ARGUMENT .................................................................................................................................. 9
I. PLAINTIFF SHOULD BE COMPELLED TO PRODUCE DOCUMENTS
RESPONSIVE TO DEFENDANT’S REQUESTS. ................................................................ 9
II. PLAINTIFF AND NBR PROPERTIES SHOULD BE COMPELLED TO PRODUCE
DOCUMENTS RESPONSIVE TO DEFENDANT’S SUBPOENA. ................................... 13
III. PLAINTIFF SHOULD BE COMPELLED TO RESPOND TO DEFENDANT’S
INTERROGATORIES. ......................................................................................................... 14
IV. PLAINTIFF SHOULD BE COMPELLED TO AMEND HIS BILL OF
PARTICULARS. ................................................................................................................... 15
CONCLUSION ............................................................................................................................. 22

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TABLE OF AUTHORITIES

Cases Page(s)

Bass v. Kansas,
198 A.D.2d 693 (3d Dep’t 1993)............................................................................................... 20
Cooper v. Drobenko Bros. Realty,
200 A.D.2d 415 (1st Dep’t 1994) .............................................................................................. 14
D'Alessandro v. Nassau Health Care Corp.,
137 A.D.3d 1195 (2d Dep’t 2016)............................................................................................... 8
Dance v. Town of Southampton,
95 A.D.2d 442 (2d Dep’t 1983)................................................................................................. 11
D’Onofrio v. Davis,
14 A.D.2d 960 (3d Dep’t 1961)................................................................................................. 15
Dusing v. Rosasco,
220 N.Y.S.2d 987 (Sup. Ct. Nassau Cty. 1961) ........................................................................ 18
Garcia v. Jomber Realty, Inc.,
264 A.D.2d 809 (2d Dep’t 1999)................................................................................................. 9
Greco v. Wellington Leasing L.P.,
144 A.D.3d 981 (2d Dep’t 2016)................................................................................................. 8
Mastey v. Mancusi,
469 N.Y.S.2d 890 (Sup. Ct. Kings Cty. 1983) .............................................................. 18, 19, 20
Northway Eng’g, Inc. v. Felix Indus., Inc.,
77 N.Y.2d 332 (1991) ................................................................................................................ 16

Rules

CPLR 3042................................................................................................................................ 1, 16
CPLR 3043............................................................................................................................. passim
CPLR 3101.............................................................................................................................. 1, 8, 9
CPLR 3120...................................................................................................................................... 9
CPLR 3122...................................................................................................................................... 9
CPLR 3124.................................................................................................................................. 1, 8
CPLR 3133................................................................................................................................ 7, 15
CPLR 4513.................................................................................................................................... 11

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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 support of his motion to

compel plaintiff Neil B. Rice (“Plaintiff”) and his company, NBR Properties LLC (“NBR

Properties”), to respond to all outstanding discovery demands. Specifically, Defendant’s motion

seeks an order, pursuant to CPLR 3042(c), CPLR 3101, and CPLR 3124, compelling Plaintiff and

NBR Properties to: (1) produce documents responsive to Defendant’s First Request for the

Production of Documents and Things (“First RFPs”) and Defendant’s Second Request for the

Production of Documents and Things (“Second RFPs”); (2) produce documents responsive to

Defendant’s Subpoena Duces Tecum to NBR Properties (the “NBR Properties Subpoena”) and

Defendant’s request for Plaintiff’s employment records from NBR Properties; (3) serve responses

to Defendant’s First Set of Interrogatories (“First Set of Interrogatories”) and Defendant’s Second

Set of Interrogatories (“Second Set of Interrogatories”); and (4) serve an amended bill of

particulars, to replace Plaintiff’s deficient response to Defendant’s Demand for a Verified Bill of

Particulars (“Initial BOP Demand”), and to include therein responses to Defendant’s Supplemental

Demand for a Verified Bill of Particulars (“Supplemental BOP Demand”).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 many months prior to their

deaths, Aaron and Sara subjected Plaintiff to months of continuous harassment and bullying,

culminating in an alleged physical assault on Plaintiff “on or about November 2019.” (Compl.

1
“Affirmation” or “Aff.” refers to the Affirmation of Jonathan Ohring in Support of Defendant’s Omnibus Motion to
Compel, filed contemporaneously herewith. “Ex. __” refers to the exhibits to the Affirmation. “Compl.” or
“Complaint” refers to Plaintiff’s Verified Complaint (Doc. No. 1). “Bill of Particulars” or “BOP” refers to Plaintiff’s
Verified Bill of Particulars (Doc. No. 46). Unless otherwise indicated, internal alterations, citations, and quotation
marks are omitted from case citations.

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¶ 23.) Plaintiff asserts various intentional torts against Defendant as Aaron’s estate representative

and seeks $15 million in damages. Despite these salacious allegations and very serious claims

against Aaron—who in death is unable to defend his good name—Plaintiff has made a mockery

of the disclosure process and refused to provide Defendant with even basic information necessary

to defend against Plaintiff’s claims.

Incredibly, more than six months after the commencement of disclosure, Plaintiff has not

produced a single document, even in response to document requests as to which he agreed to

produce responsive documents. No documents to support his allegations that he was subjected to

continuous harassment over text messages. No documents to support his allegations that he

suffered emotional distress as a result of the alleged assault and harassment. No documents to

support his allegations that he was unable to manage his property management business because

of the alleged assault and harassment. Nothing. These are all documents that should have been

produced promptly in response to Defendant’s document requests if there were any basis for

Plaintiff’s claims. Plaintiff’s failure to produce any documents constitutes a gross abdication of

his disclosure obligations or, even worse, supports the inference that his Complaint is frivolous.

To make matters worse, Plaintiff has failed to provide responses to Defendant’s

interrogatories and has served an entirely inadequate Bill of Particulars in response to Defendant’s

demand for amplification of the Complaint with respect to certain items. The property

management business which he claims to own, NBR Properties, has also failed to respond to the

subpoena served on it. When presented with these disclosure failures during the meet-and-confer

process, Plaintiff’s counsel (which also represents NBR Properties) has simply obfuscated and

delayed.

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The Court should not condone this conduct. It should compel Plaintiff and NBR Properties

to promptly produce the documents and information requested by Defendant or face sanctions,

including dismissal of the Complaint and reimbursement of Defendant’s attorneys’ fees.

FACTUAL BACKGROUND

A. Plaintiff’s Allegations

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

three weeks earlier. Defendant was appointed administrator of Aaron’s estate and continues to

serve in that capacity. Approximately one year after their deaths, while Aaron’s estate was in

administration in Surrogate’s Court, Plaintiff served notice of a claim against Aaron’s 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; see also, e.g., id. ¶ 18 (alleging

that Aaron and Sara “constantly called and texted Plaintiff”); id. ¶ 32 (alleging “ongoing and

continuous disparagement” of Plaintiff).)

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.)

Plaintiff alleges that the “time period” of the “assault(s)” was “on or about November 2019 and

December 2019 and thereafter.” (BOP ¶ 25.)

Plaintiff alleges that his “mental, emotional, and physical states have suffered greatly . . .

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.” (Compl. ¶ 27.) Plaintiff alleges

that he was “unable to leave his house and required a significant increase in prescription

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medications and psychiatric interventions in order to begin recovery,” and that he was in “constant

contact” with his psychiatrist because he expressed suicidal intentions. (Id. ¶¶ 28-29.) In addition,

Plaintiff alleged for the first time in his Bill of Particulars that he is an “Owner/Landlord of

properties[,]” and that “[d]ue to the emotional distress inflicted upon [him], [he] was unable during

the time period to manage his buildings and therefore unable to derive rental income from his

properties.” (BOP ¶ 15; see also id. ¶¶ 22, 23.)

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. (Compl. ¶¶ 31-63.)

B. Plaintiff’s Wholesale Discovery Failures

Defendant filed an answer to the Complaint on March 14, 2022. (Doc. No. 29.) On

March 28, 2022, the Court so-ordered a Preliminary Conference Stipulation filed by the parties

(the “PC Order”). (Doc. No. 33.)

Thereafter, Defendant served Plaintiff with document requests, interrogatories, and

demands for a bill of particulars. As discussed below, Plaintiff’s response (or lack thereof) to

Defendant’s requests reflects a complete abdication of his discovery obligations. At the request

of the undersigned, counsel for the parties met-and-conferred regarding these issues, but these

efforts have not resulted in any meaningful action by Plaintiff, necessitating the instant motion

following a pre-motion conference with chambers. (See Aff. ¶¶ 19-24; 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
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.)

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1. Document Requests

On May 18, 2022, Defendant served the First RFPs, consisting of nine document requests.

(See Aff. ¶ 8; Ex. E.) On June 24, 2022—7 days after the deadline for responding to document

requests under the PC Order (Doc. No. 33)—Plaintiff served his response to the First RFPs (the

“Response”). (See Aff. ¶ 9; Ex. H.) The Response stated that Plaintiff would be producing

documents responsive to only two of the nine requests—specifically, Request Nos. 2 and 6. As to

the remainder, the Response stated various objections without stating that Plaintiff would produce

any responsive documents. To date, more than six months after the commencement of disclosure,

Plaintiff has not produced a single document to Defendant. (Aff. ¶ 10.)

On September 2, 2022, Defendant served the Second RFPs, consisting of nine additional

document requests. (See Aff. ¶ 14; Ex. L.) Each of the nine requests seeks documents relating to

allegations that were absent from the Complaint and appeared for the first time in Plaintiff’s Bill

of Particulars (and were thus unknown to Defendant when he served the First RFPs). Specifically,

the Second RFPs seek documents relating to Plaintiff’s allegations in the Bill of Particulars that he

was the owner of real properties and was unable to manage his buildings and derive rental income

due to the alleged emotional distress he suffered from the alleged assault. (See Ex. L at 5-6.) More

than five weeks after service of the Second RFPs, Plaintiff has not served any response and has

not produced any responsive documents. (Aff. ¶ 15.)

2. Requests to NBR Properties

On or about April 7, 2022, Plaintiff provided Defendant with an “Authorization to Use or

Disclose Employment Records” (the “Authorization”) in which Plaintiff stated that he was self-

employed and that the entity under which he works is NBR Properties LLC. (See Ex. B.) In the

Authorization, Plaintiff authorized Defendant’s counsel to obtain employment records from NBR

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Properties for the period of January 1, 2017 to the present. (See id.) In accordance with the

Authorization, on August 31, 2022, Defendant’s counsel sent NBR Properties a letter by mail (with

a copy to Plaintiff’s counsel) requesting production of employment records for Plaintiff for that

period by September 19, 2022. (See Aff. ¶ 13; Ex. K.)

In addition, on September 2, 2022, Defendant served the NBR Properties Subpoena by

mail on NBR Properties (with a copy to Plaintiff’s counsel), requesting documents relevant to

Plaintiff’s allegations regarding his loss of rental income due to the alleged emotional distress he

suffered based on the alleged harassment and assault. (See Aff. ¶ 16; Ex. M.) The NBR Properties

Subpoena set a return date for production of September 22, 2022. (Ex. M at 1.)

On September 16, 2022, Plaintiff’s counsel (which also represents NBR Properties) sent

Defendant’s counsel an email stating that they were collecting documents responsive to the NBR

Properties Subpoena and requesting consent to a two-week extension for compliance therewith.

(See Aff. ¶ 17; Ex. N.) The email did not mention the letter to NBR Properties requesting

Plaintiff’s employment records. Defendant’s counsel sent an email approximately one hour later

confirming agreement to the extension (see Ex. N), thereby extending the compliance date to

October 6, 2022. That deadline passed without any production of documents by NBR Properties.

(See Aff. ¶ 18.) After the deadline passed, and one day before the filing of the instant motion,

Plaintiff’s counsel belatedly sent an email stating (in its entirety): “We need a few more weeks to

provide you with the documentation requested in the subpoena.” (See Aff. ¶ 18; Ex. O.) No reason

was provided for the delay.

3. Interrogatories

On May 18, 2022, Defendant served his First Set of Interrogatories, consisting of seven

interrogatories seeking basic information regarding potential witnesses in the case and the

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identification of relevant documents. (See Aff. ¶ 8; Ex. F.) On June 24, 2022—17 days after the

deadline for responding to interrogatories under CPLR 3133—Plaintiff served his response, which

stated, in full, that “the Preliminary Conference Stipulation (NYSCEF Doc. No. 33), ‘so ordered’

by the Honorable Damaris Torrent on March 28, 2022, does not provide or offer the opportunity

to submit or respond to interrogatories. The Parties failed to stipulate to interrogatories at the court

conference of March 25, 2022.” (See Aff. ¶ 9; Ex. I.) During the parties’ meet and confer on

August 26, 2022, Plaintiff’s counsel reiterated this position, stating that responses to the

Interrogatories were unnecessary because Defendant could take depositions. (See Aff. ¶¶ 20-21;

Ex. P.)

On August 31, 2022, Defendant served his Second Set of Interrogatories. (See Aff. ¶ 11;

Ex. J.) The Second Set of Interrogatories consists of three interrogatories, seeking information

regarding any telephone numbers or email addresses used by Plaintiff during the relevant period

and any business entities with which he was affiliated or in which he held a business interest. (See

Ex. J.) More than forty days after service of the Second Set of Interrogatories, Defendant has

received no response from Plaintiff. (See Aff. ¶ 12.)

4. Demands for Bill of Particulars

On April 18, 2022, Defendant served Plaintiff with the Initial BOP Demand, seeking

amplification of the Complaint with respect to thirty-three (33) items. (See Aff. ¶ 6; Ex. C.) On

May 18, 2022, Plaintiff filed his Bill of Particulars, responding to certain of the demands set forth

in the Initial BOP Demand, but objecting to most demands therein. (See Aff. ¶ 7; Ex. D.)

Specifically, Plaintiff responded with the following boilerplate statement for eighteen (18)

of the thirty-three (33) requests (Request Nos. 4-7, 9-11, 16, 19, 24, and 26-33): “Plaintiff objects

to Defendant’s demand as an improper demand for a bill of particulars. The appropriate vehicle

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for discovering facts is CPLR Article 31.” (See generally Ex. D.) With respect to the eleven (11)

requests as to which Plaintiff provided any kind of substantive response, a majority are patently

deficient.

Additionally, on May 18, 2022, Defendant served the Supplemental BOP Demand,

containing three additional demands. (See Aff. ¶ 8.) As of the date of this motion, Plaintiff has

failed to respond to the Supplemental BOP Demand. (See id. ¶ 10.)

During the parties’ meet-and-confer on August 26, 2022, Plaintiff’s counsel reiterated their

position that most of the demands in the Initial BOP Demand sought discovery rather than

amplification of the pleadings. (See Ex. P.) Defendant’s counsel disagreed and noted, for example,

that certain demands sought information expressly contemplated by CPLR 3043 as appropriate for

a bill of particulars. (See id.) Plaintiff’s counsel refused to revise the Bill of Particulars. (See id.)

LEGAL STANDARDS GOVERNING DISCLOSURE

Under CPLR 3101(a), “[t]here shall be full disclosure of all matter material and necessary

in the prosecution or defense of an action.” CPLR 3124 permits motions to compel where a party

or non-party fails to comply with a request for discovery under Article 31. “Material and necessary

information” that must be disclosed under CPLR 3101(a) is any information that “bears upon the

controversy at issue and will assist the requesting party in preparing for trial.” Greco v. Wellington

Leasing L.P., 144 A.D.3d 981, 982 (2d Dep’t 2016). To obtain disclosure, the requesting party

must demonstrate only that the disclosure sought “will result in the disclosure of relevant evidence

or is reasonably calculated to lead to the discovery of information bearing on the claims.”

D'Alessandro v. Nassau Health Care Corp., 137 A.D.3d 1195, 1196 (2d Dep’t 2016).

Accordingly, courts should “interpret discovery requests liberally in favor of disclosure.” Greco,

144 A.D.3d at 982.

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ARGUMENT

I. PLAINTIFF SHOULD BE COMPELLED TO PRODUCE DOCUMENTS
RESPONSIVE TO DEFENDANT’S REQUESTS.

Remarkably, more than six months after the commencement of disclosure, Plaintiff has not

produced a single document to support his claims that he was continuously harassed and physically

assaulted by Aaron. (See supra, Factual Background § B.1.) There is no excuse for this failure,

and no plausible explanation other than Plaintiff is willfully seeking to undermine Defendant’s

right to obtain documents to support his defense. The Court should end this charade and direct

Plaintiff to produce all documents responsive to Defendant’s First RFPs and Second RFPs.

As an initial matter, Plaintiff waived any objections to the requests by failing to timely

serve objections. Plaintiff served his response to the First RFPs seven days after the deadline for

responding under the PC Order, and has not served any response to the Second RFPs. (See supra,

Factual Background § B.1.) It is well-settled that the failure to serve timely objections greatly

narrows the scope of the court’s review of disclosure requests: “The failure of a party to challenge

the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time

prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except

with regard to [1] material that is privileged pursuant to CPLR 3101, or [2] requests that are

palpably improper[.]” Garcia v. Jomber Realty, Inc., 264 A.D.2d 809, 810 (2d Dep’t 1999).

Here, there has been no contention that the information sought in the Defendant’s First

RFPs and Second RFPs is privileged. Nor are the requests palpably improper. As discussed below,

they plainly seek information that is relevant to Plaintiff’s claims.

First RFPs

Request No. 1: This Request seeks “[a]ll documents and communications concerning any

meeting or communication between or among [Plaintiff] and Aaron and/or Sara.” (Ex. E at 5.) It

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should go without saying that the requested documents must be produced. Plaintiff alleges

“continuous and ongoing” bullying and harassment by Aaron and Sara, “consisting of disparaging

remarks, phone calls, and texts, culminating during quarantine and just prior to” their deaths in

August 2020, as well as a physical assault by Aaron and Sara. (See supra, Factual Background

§ A.) Defendant is entitled to documents that support or undermine these allegations that form the

core of Plaintiff’s Complaint. The requested documents are plainly relevant and Plaintiff must

produce them.

Request No. 2: This Request seeks “[a]ll documents and communications concerning any

physical and/or mental injuries Plaintiff allegedly suffered as a result of his interactions with Aaron

and/or Sara.” (Ex. E at 5.) The requested documents again go to the core of Plaintiff’s allegations.

Plaintiff alleges that his “mental, emotional, and physical states have suffered greatly” due to the

alleged assault and he seeks damages based on these allegations. (Compl. ¶ 27.) Plaintiff has

acknowledged that the documents are relevant, agreeing to produce documents responsive to this

Request (see Ex. H at 3), but has failed to do so. The Court should compel their disclosure.

Request No. 3: This Request seeks “[a]ll documents and communications concerning any

physical and/or mental disease, illness, disability, or injury suffered by Plaintiff, including any

documents and communications concerning treatment for any such disease, illness, disability, or

injury.” (Ex. E at 5.) The requested documents are relevant in determining, inter alia, whether

any injuries allegedly suffered by Plaintiff are attributable to causes other than the alleged

harassment and assault. In the Complaint, Plaintiff alleges that at all times he has been

“developmentally disabled, suffering from mental illness, and under the care of a psychiatrist.”

(Compl. ¶ 2.) Indeed, this Court has already agreed that Plaintiff “placed his physical and mental

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condition in issue” in its order granting Defendant’s motion to compel Plaintiff to produce medical

authorizations. (Doc. No. 66 at 5.)

In his response to this Request, Plaintiff asserted that this Request is “redundant” because

he provided Defendant with authorizations to obtain his medical records. (Ex. H at 3.) The

Request is not redundant. The requests to Plaintiff’s medical providers pursuant to the

authorizations seek documents in their possession. But Defendant is entitled to any documents on

this issue in Plaintiff’s possession, which may differ substantially from the medical records in the

possession of Plaintiff’s medical providers.

Request No. 4: This Request seeks “[a]ll documents and communications concerning any

drug- or alcohol-related treatment undergone by or recommended to Plaintiff.” (Ex. E at 5.) The

Court’s order on Defendant’s motion to compel expressly ruled that Defendant is entitled to “full

disclosure” of Plaintiff’s “alcohol and drug treatment records.” (Doc. No. 66 at 5.) Likewise, any

documents or communications in Plaintiff’s possession regarding his alcohol and drug treatment

are relevant and must be produced.

Request No. 5: This Request seeks “[a]ll documents and communications concerning any

arrests, criminal charges, criminal convictions, or criminal conduct of Plaintiff.” (Ex. E at 5.) The

requested information is relevant, or reasonably calculated to lead the discovery of relevant

evidence, because it may provide background on Plaintiff’s alleged pre-existing mental health

issues and may implicate his credibility at trial. See CPLR 4513 (“A person who has been

convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of

affecting the weight of his testimony, either by cross-examination, upon which he shall be required

to answer any relevant question, or by the record.”); see also Dance v. Town of Southampton, 95

A.D.2d 442, 452-453 (2d Dep’t 1983) (“Under CPLR 4513, conviction of a crime and the

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underlying facts of the criminal acts may be used to impeach credibility of a witness at a civil

trial.”).

Request No. 6: This Request seeks “[a]ll documents and communications concerning

Plaintiff’s employment.” (Ex. E at 5.) Plaintiff has asserted that he is “self-employed” and works

through his property management company NBR Properties (see Ex. B) and that he has been

unable to manage his building due to emotional distress suffered as a result of the alleged assault

(see BOP ¶¶ 15, 22, 23). Defendant is entitled to documents supporting or rebutting that allegation.

In addition, to the extent Plaintiff held any employment during the relevant period other than

through NBR Properties, information regarding his employment could be relevant to rebutting his

claims. Plaintiff has acknowledged that the documents sought by Request No. 6 are relevant,

agreeing to produce documents responsive to this Request (see Ex. H at 5), but has failed to do so.

The Court should compel their disclosure.

Request No. 7: This Request seeks “[a]ll documents and communications concerning or

purporting to support any allegations or causes of action in the Complaint.” (Ex. E at 5.) Plaintiff

has asserted that this Request “is calculated to annoy and harass as it prematurely seeks merits-

based information still being sought and developed in preparation for trial.” (Ex. H at 5.) That is

wrong. To the extent that Plaintiff has possession, custody, or control over documents or

communications purporting to support his allegations and claims, he must produce them now. He

cannot delay by claiming that evidence is “still being sought and developed.”

Request Nos. 8 and 9: These Requests seek documents provided to or received from any

expert witness that Plaintiff intends to call at trial and documents that Plaintiff will or may use or

seek to use in any deposition, hearing, or trial. (Ex. E at 6.) Plaintiff has objected to these Requests

on the grounds that they are premature (see Ex. H at 5-6), but to the extent that Plaintiff is aware

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of such documents, he should be ordered to produce them now, and he should be ordered to

supplement his production as such documents become aware to him, rather than simply refusing

to produce such documents.

Second RFPs

The Second RFPs seek documents relating to Plaintiff’s allegations in the Bill of Particulars

that he is the owner of real properties and was unable to manage his buildings and derive rental

income due to the alleged emotional distress he suffered from the alleged assault. (See Ex. L at 5-

6.) These allegations were absent from the Complaint, appeared for the first time in Plaintiff’s Bill

of Particulars, and were thus unknown to Defendant when he served the First RFPs. The

documents sought in the Second RFPs are narrowly tailored at gathering information that would

allow Defendant to test Plaintiff’s allegation that he was unable to manage his buildings and derive

rental income due to the alleged emotional distress he suffered from the alleged assault, including

by comparing his rental income after the alleged assault to the period prior to the alleged assault

and evaluating whether other causes—such as lack of market demand—were the true cause of any

alleged loss of rental income. The documents are undoubtedly relevant and should be produced.

II. PLAINTIFF AND NBR PROPERTIES SHOULD BE COMPELLED TO PRODUCE
DOCUMENTS RESPONSIVE TO DEFENDANT’S SUBPOENA.

While Plaintiff must produce documents in his personal possession, custody, or control

relating to his property management business (see supra, Argument § I), Defendant is also entitled

to relevant documents in the possession of NBR Properties, to the extent those documents are not

coextensive. For example, if there are corporate records of NBR Properties that are not in

Plaintiff’s personal possession, NBR Properties must produce them. For that reason, Defendant

served the NBR Properties Subpoena and sent NBR Properties the request for Plaintiff’s

employment records. (See supra, Factual Background § B.2.)

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Plaintiff and NBR Properties have failed to timely respond to the NBR Properties Subpoena

or Defendant’s request for Plaintiff’s employment records, despite Plaintiff’s counsel’s

representations that they were collecting responsive documents. (See id.) As with the First RFPs

and Second RFPs, Plaintiff and NBR Properties have therefore waived any objections to the

requests, and the information sought is neither privileged nor palpably improper. Rather, for the

reasons previously discussed (see Argument § I), the documents sought are plainly relevant to

Plaintiff’s claims. The Court should order their production.

III. PLAINTIFF SHOULD BE COMPELLED TO RESPOND TO DEFENDANT’S
INTERROGATORIES.

Plaintiff refused to provide substantive responses to Defendant’s First Set of Interrogatories

on the basis that the PC Order did not expressly provide for interrogatories, and he failed to respond

at all to Defendant’s Second Set of Interrogatories. (See supra, Factual Background § B.3.) The

Court should compel Plaintiff to respond to the interrogatories.

First, by failing to timely respond to the Interrogatories, Plaintiff has waived any objections

thereto. See, e.g., Cooper v. Drobenko Bros. Realty, 200 A.D.2d 415, 415 (1st Dep’t 1994).

Second, the interrogatories seek relevant information.

The First Set of Interrogatories consists of seven interrogatories seeking basic information

regarding potential w

Case Info

Judge

Debra A. James Track Judge’s New Case

Case No.

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Document Filed Date

August 10, 2023

Case Filing Date

January 24, 2018

County

Parties

ANSELMO, JOHN ANTHONY Attorney for the Plaintiff
BERKOWITZ, JONATHAN LEE Attorney for the Plaintiff
CAMPBELL, KAREN LOREECE Attorney for the Plaintiff
Cushman & Wakefield, Inc. Plaintiff
Goldberg Segalla, LLP Attorney for the Plaintiff
Lawrence Tannenbaum Defendant
LAWRENCE BERKOWITZ Attorney
KARA CAMPBELL Attorneys for Plaintiffs
LEONARD BERKOWITZ Attorney
J MILLER Attorney
TIMOTHY MILLER Attorneys for Plaintiffs
NANCY BERKOWITZ Attorney

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Exhibit,Appendix: Cushman & Wakefield, Inc. v. Lawrence Tannenbaum

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Case Info

Parties