Preview
FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CAROLYN DISBROW,
Plaintiff, Index No. 651602/2020
:
-against-
Motion Seq. No. 4
THE NORMANDIE CONDOMINIUM, THE IAS Part 63
BOARD OF MANAGERS OF THE NORMANDIE Hon. Tanya R. J.S.C.
Kennedy,
CONDOMINIUM, METRO MANAGEMENT &
DEVELOPMENT, INC., GLOBAL SOLUTIONS AFFIRMATION IN OPPOSTION
APPLIANCE REPAIR INC., GLOBAL DEFENDANTS'
TO MOTION TO
SOLUTIONS APPLIANCE REPAIR NYC LLC, COMPEL DISCOVERY
HADAS A. JACOBI, BRIAN STRONG, AND
KERI STRONG
Defendants.
.
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JANICE I. GOLDBERG, an attorney duly admitted to practice before the Courts of the
State of New York, hereby affirms the following upon penalty of perjury.
1. I am a partner at Herrick, Feinstein LLP, attorneys for Carolyn Disbrow,
("Plaintiff") in the above-captioned action, and as such, I am fully familiar with the facts and
circumstances set forth herein.
2. I respectfully submit this affirmation in opposition to the motion to compel
discovery filed on behalf of Defendants The Normandie Condominium, The Board of Managers
of The Normandie Condominium and Metro Management & Development, Inc. (collectively, the
"Normandie Defendants") (the "Motion"). (NYSCEF Doc. Nos. 37-45).
DEFENDANTS'
I. THE NORMANDIE MOTION SHOULD BE DENIED
3. On June 19, 2020, the Normandie Defendants filed the Motion, seeking an order
(a) requiring Plaintiff to provide responses to Normandie's Demand for a Verified Bill of
Particulars and Combined Demands dated May 14, 2020, (the "Discovery Demands"); or (b) in
the alternative, directing that Plaintiff be precluded from offering any evidence upon the trial of
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this matter in support of her claims and allegations or, in the alternative, compelling Plaintiff's
responses within a prescribed time period. For the reasons set forth herein, the Normandie
Defendants'
Motion should be denied as it ispremature, procedurally improper, unnecessary, and
attorneys'
wasteful. Further, the Court should award Plaintiff her costs and fees incurred in
Defendants'
connection with responding to this motion as sanctions for the Normandie bad faith
conduct in bringing this motion.
4. By way of background, on May 14, 2020, the Normandie Defendants filed and
served a Verified Answer and the Discovery Demands, along with certain other demands for
disclosure. (See NYSCEF Doc. Nos. 8-11.)
5. On May 26, 2020, pursuant to CPLR 2101(f), Plaintiff filed a timely Notice of
Defendants'
Rejection, rejecting the Normandie Discovery Demands for several reasons
Defendants'
enumerated therein, including the Normandie failure to serve Discovery Demands
that facially complied with the CPLR. Plaintiff specifically objected that the Demand for Verified
Bill of Particulars and the Combined Demands were impermissibly duplicative and therefore
contravened CPLR 3130(1). (See Plaintiff's Notice of Rejection, NYSCEF Doc. No. 20). Plaintiff
expected that the Normandie Defendants would re-serve their Discovery Demands after curing the
deficiencies identified therein. To date, the Normandie Defendants have failed to do so.
6. As is the appropriate action to be taken in a matter with multiple defendants,
represented by separate counsel, and what is likely to be a complicated discovery process, Plaintiff
19.)¹
also filed a Request for Preliminary Conference on May 26, 2020. (See NYSCEF Doc. No.
Plaintiff expected that the parties would confer at the conference and agree to a coordinated
1
Administrative Order 85-20 effectiveApril 13, 2020 provided thatNew York StateCourts conference pending
cases,including discovery conferences, through remote or virtualcourt operations.
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discovery schedule and appropriate protocol for the collection, review and production of
electronically stored information ("ESI").
7. Additionally, Plaintiff's Request for a Preliminary Conference was also intended to
address other outstanding scheduling issues including whether the Court intends to stay disclosure
pursuant to CPLR 3214 as to Defendant Hadas Jacobi, who has filed three motions to dismiss the
claims and cross-claims asserted against her in this action. (See NYSCEF Doc. Nos 21-
14-18,
33.)
8. On May 27, 2020, counsel for the Normandie Defendants emailed the undersigned
to advise that he would request that the Preliminary Conference be adjourned until a date after he
receives Plaintiff's responses to the defective Discovery Demands and further advised that he
would not enter into a Preliminary Conference Order without having received Plaintiff's complete
discovery responses. A true and correct copy of the May 27, 2020 email from the Normandie
Defendants'
counsel is attached hereto as Exhibit 1.
9. The position expressed by the Normandie
Defendants'
counsel - refusing to
participate in a preliminary conference or agree to a scheduling order until after Plaintiff's full
compliance with the Normandie
Defendants'
defective Discovery Demands - is nonsensical as it
completely negates the purpose of a preliminary conference and scheduling order to begin with.
10. Accordingly, in response, undersigned counsel advised of its reasons for requesting
the as set forth and proposed that the Normandie Defendants re-
preliminary conference, above,
serve their corrected Discovery Demands after the preliminary conference is held and a discovery
scheduling order put in place. Critically, Plaintiff did n_ot refuse to provide responses to the
Defendants'
Normandie Discovery Demands but simply indicated that discovery should proceed
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in an orderly and coordinated fashion. A true and correct copy of the May 27, 2020 email from
undersigned counsel is attached hereto as Exhibit 2.
11. Instead of attempting to correct the deficiencies with the Discovery Demands
identified by the Plaintiff or engage in good faith negotiations regarding Plaintiff's objections to
the Discovery Demands or even proposing that counsel negotiate a discovery schedule without
waiting for the Court to schedule a preliminary conference, counsel for the Normandie Defendants
immediately threatened motion practice despite undersigned counsel's exhortations to not engage
in frivolous motion practice. True and correct copies of further email correspondence dated May
27, 2020 between undersigned counsel and counsel for the Normandie Defendants is attached
hereto as Exhibit 3.
12. The Normandie Defendants incredulously describe the foregoing correspondence
good-faith"
as their attempt to "resolve this discovery dispute in when it is nothing of the kind.
(Affirmation of Good Faith, NYSCEF Doc. No. 38; Affirmation of Paul F. Lagattuta II, Esq. in
Support, NYSCEF Doc. No. 39, at ¶ 8.)
13. On June 11, 2020, undersigned counsel received further email correspondence from
Defendants'
the Normandie counsel. While initially the correspondence addressed whether
Plaintiff would voluntarily discontinue this action against the Normandie Defendants (which
Plaintiff declined to do), counsel for the Normandie Defendants specifically stated "Had you
provided the discovery, rather than rejected same, we could discuss discovery. I am truly fine
Conference...."
waiting for a Preliminary A true and correct copy of the June 11, 2020 email
Defendants'
correspondence with the Normandie counsel is attached hereto as Exhibit 4.
(Emphasis added).
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14. Despite appearing to backtrack on the threatened motion to compel by indicating
Conference,"
that the Normandie Defendants were "fine waiting for a Preliminary the Normandie
Defendants instead filed the instant Motion on June 19, 2020.
15. As a threshold matter, in bringing this Motion, the Normandie Defendants have
Rules,"
completely disregarded this Court's part rules ("Part 63 attached hereto as Exhibit 5)
concerning Discovery Motions. In particular, the Part 63 Rules state:
It is preferred that discovery disputes be resolved through a court
conference - not through motion practice - unless otherwise directed.
Pre-motion conferences must be held to permit the Court an
opportunity to resolve disputes before motion practice ensues and to
control its calendar in the context of discovery and trial schedules.
(See Part 63 Rules at p. 6) (emphasis in original). The Part 63 Rules also set forth a letter brief
requirement and process for resolution of the dispute by telephone or in-person conference with
the Court, which rules the Normandie Defendants have also not complied with. (Id.)
16. Moreover, the Normandie Defendants have never actually attempted to resolve
these discovery disputes in good faith with undersigned counsel. Instead, the Normandie
Defendants failed and refused to confer with undersigned counsel regarding discovery scheduling
and other discovery matters, resorting to threats and bullying Plaintiff with unnecessary motions
practice even though throughout this process Plaintiff has never once indicated that she will not
respond to Normandie's Discovery Demands at all. To the contrary, Plaintiff clearly expressed
that the intention is to proceed with discovery in a coordinated fashion, with alldefendant parties
participating and with agreed-upon parameters and dates that are mutually agreeable. That
position was, apparently, unacceptable to the Normandie Defendants.
17. Plaintiff is willing to work with the Normandie Defendants to arrive at a good faith
resolution to this discovery impasse. In particular, Plaintiff respectfully submits that the Court
should schedule a preliminary conference and counsel for the Normandie Defendants should
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comply with the Part 63 Rules and meet and confer with Plaintiff and the other defendant parties
who have appeared in this action in advance of said conference. That is allPlaintiff ever sought
in the firstplace.
18. Plaintiff is currently diligently working on assembling the necessary responses to
Defendants'
the Normandie Discovery Demands and will respond appropriately following the
entry of a discovery schedule and order and the resubmission of Normandie's corrected Discovery
Demands.
ATTORNEYS'
II. PLAINTIFF SHOULD BE AWARDED COSTS AND
FEES IN CONNECTION WITH THIS MOTION AS A SANCTION
19. Under Section 130-1.1 of the Rules of the Chief Administrator, the Court may
award costs "in the form of reimbursement for actual expenses reasonably incurred and reasonable
conduct,"
attorney's fees, resulting from frivolous and these costs and sanctions may be imposed
against either a party or an attorney or both. 22 N.Y.C.R.R. §130-1.1. Frivolous conduct is defined
by the Court as either the assertion of an argument that cannot be supported by law, conduct that
another,"
"is undertaken primarily to ...harass or maliciously injure or the assertion of "material
false." -
factual statements that are 22 N.Y.C.R.R. §130-1.1(c) (1) (3).
20. Plaintiff should never have had to incur the costs to oppose this unnecessary Motion
parties'
in connection with the above-mentioned discovery dispute, which is a waste of both the
and the Court's resources. The issues could have been resolved between the parties and without
the Court's intervention had the Normandie Defendants cooperated with Plaintiff's request to
schedule a preliminary conference and meet and confer regarding discovery scheduling and other
discovery issues. Instead, as evidenced by the emails exchanged with counsel for the Normandie
Defendants (see Exhibits 1-3 hereto), counsel irrationally demanded all discovery responses and
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complete production before even agreeing to appear for a Preliminary Conference (again, a
position which is nonsensical) and otherwise refused to re-serve corrected Discovery Demands.
21. The Normandie Defendants then compounded their bad faith by failing to follow
the Part 63 Rules regarding Discovery Motions, which require pre-motion conferences.
22. For these reasons, Plaintiff respectfully requests that the Court impose sanctions
attorneys'
upon the Normandie Defendants in the form of costs and fees in opposing the instant
Motion. Commissioners of State Ins. Fund v. Kernell, 91 A.D.3d 811, 812, 938 N.Y.S.2d 104,
105 (2d Dep't 2012) (granting motions for sanctions and costs in opposing "frivolous conduct");
Good Old Days Tavern, Inc. v. Zwirn, 261 A.D.2d 288, 289, 691 N.Y.S.2d 759, 760 (1st Dep't
1999) (same).
CONCLUSION
For all of the reasons set forth above, Plaintiff respectfully requests that this Court (i)
dismiss Normandie's Motion in its entirety; (ii)grant Plaintiff's Cross Motion for Sanctions; and
(iii)grant such other and further relief as this Court deems just, proper and equitable.
Dated: New York, New York
July 7, 2020
/s/ Janice I. Goldberg
Janice I.Goldberg
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FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------x CAROLYN DISBROW, Plaintiff, Index No. 651602/2020 : -against- Motion Seq. No. 4 THE NORMANDIE CONDOMINIUM, THE IAS Part 63 BOARD OF MANAGERS OF THE NORMANDIE Hon. Tanya R. J.S.C. Kennedy, CONDOMINIUM, METRO MANAGEMENT & DEVELOPMENT, INC., GLOBAL SOLUTIONS AFFIRMATION IN OPPOSTION APPLIANCE REPAIR INC., GLOBAL DEFENDANTS' TO MOTION TO SOLUTIONS APPLIANCE REPAIR NYC LLC, COMPEL DISCOVERY HADAS A. JACOBI, BRIAN STRONG, AND KERI STRONG Defendants. . ----------------------------------------------------------------x JANICE I. GOLDBERG, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following upon penalty of perjury. 1. I am a partner at Herrick, Feinstein LLP, attorneys for Carolyn Disbrow, ("Plaintiff") in the above-captioned action, and as such, I am fully familiar with the facts and circumstances set forth herein. 2. I respectfully submit this affirmation in opposition to the motion to compel discovery filed on behalf of Defendants The Normandie Condominium, The Board of Managers of The Normandie Condominium and Metro Management & Development, Inc. (collectively, the "Normandie Defendants") (the "Motion"). (NYSCEF Doc. Nos. 37-45). DEFENDANTS' I. THE NORMANDIE MOTION SHOULD BE DENIED 3. On June 19, 2020, the Normandie Defendants filed the Motion, seeking an order (a) requiring Plaintiff to provide responses to Normandie's Demand for a Verified Bill of Particulars and Combined Demands dated May 14, 2020, (the "Discovery Demands"); or (b) in the alternative, directing that Plaintiff be precluded from offering any evidence upon the trial of 1 1 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 this matter in support of her claims and allegations or, in the alternative, compelling Plaintiff's responses within a prescribed time period. For the reasons set forth herein, the Normandie Defendants' Motion should be denied as it ispremature, procedurally improper, unnecessary, and attorneys' wasteful. Further, the Court should award Plaintiff her costs and fees incurred in Defendants' connection with responding to this motion as sanctions for the Normandie bad faith conduct in bringing this motion. 4. By way of background, on May 14, 2020, the Normandie Defendants filed and served a Verified Answer and the Discovery Demands, along with certain other demands for disclosure. (See NYSCEF Doc. Nos. 8-11.) 5. On May 26, 2020, pursuant to CPLR 2101(f), Plaintiff filed a timely Notice of Defendants' Rejection, rejecting the Normandie Discovery Demands for several reasons Defendants' enumerated therein, including the Normandie failure to serve Discovery Demands that facially complied with the CPLR. Plaintiff specifically objected that the Demand for Verified Bill of Particulars and the Combined Demands were impermissibly duplicative and therefore contravened CPLR 3130(1). (See Plaintiff's Notice of Rejection, NYSCEF Doc. No. 20). Plaintiff expected that the Normandie Defendants would re-serve their Discovery Demands after curing the deficiencies identified therein. To date, the Normandie Defendants have failed to do so. 6. As is the appropriate action to be taken in a matter with multiple defendants, represented by separate counsel, and what is likely to be a complicated discovery process, Plaintiff 19.)¹ also filed a Request for Preliminary Conference on May 26, 2020. (See NYSCEF Doc. No. Plaintiff expected that the parties would confer at the conference and agree to a coordinated 1 Administrative Order 85-20 effectiveApril 13, 2020 provided thatNew York StateCourts conference pending cases,including discovery conferences, through remote or virtualcourt operations. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 discovery schedule and appropriate protocol for the collection, review and production of electronically stored information ("ESI"). 7. Additionally, Plaintiff's Request for a Preliminary Conference was also intended to address other outstanding scheduling issues including whether the Court intends to stay disclosure pursuant to CPLR 3214 as to Defendant Hadas Jacobi, who has filed three motions to dismiss the claims and cross-claims asserted against her in this action. (See NYSCEF Doc. Nos 21- 14-18, 33.) 8. On May 27, 2020, counsel for the Normandie Defendants emailed the undersigned to advise that he would request that the Preliminary Conference be adjourned until a date after he receives Plaintiff's responses to the defective Discovery Demands and further advised that he would not enter into a Preliminary Conference Order without having received Plaintiff's complete discovery responses. A true and correct copy of the May 27, 2020 email from the Normandie Defendants' counsel is attached hereto as Exhibit 1. 9. The position expressed by the Normandie Defendants' counsel - refusing to participate in a preliminary conference or agree to a scheduling order until after Plaintiff's full compliance with the Normandie Defendants' defective Discovery Demands - is nonsensical as it completely negates the purpose of a preliminary conference and scheduling order to begin with. 10. Accordingly, in response, undersigned counsel advised of its reasons for requesting the as set forth and proposed that the Normandie Defendants re- preliminary conference, above, serve their corrected Discovery Demands after the preliminary conference is held and a discovery scheduling order put in place. Critically, Plaintiff did n_ot refuse to provide responses to the Defendants' Normandie Discovery Demands but simply indicated that discovery should proceed 3 3 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 in an orderly and coordinated fashion. A true and correct copy of the May 27, 2020 email from undersigned counsel is attached hereto as Exhibit 2. 11. Instead of attempting to correct the deficiencies with the Discovery Demands identified by the Plaintiff or engage in good faith negotiations regarding Plaintiff's objections to the Discovery Demands or even proposing that counsel negotiate a discovery schedule without waiting for the Court to schedule a preliminary conference, counsel for the Normandie Defendants immediately threatened motion practice despite undersigned counsel's exhortations to not engage in frivolous motion practice. True and correct copies of further email correspondence dated May 27, 2020 between undersigned counsel and counsel for the Normandie Defendants is attached hereto as Exhibit 3. 12. The Normandie Defendants incredulously describe the foregoing correspondence good-faith" as their attempt to "resolve this discovery dispute in when it is nothing of the kind. (Affirmation of Good Faith, NYSCEF Doc. No. 38; Affirmation of Paul F. Lagattuta II, Esq. in Support, NYSCEF Doc. No. 39, at ¶ 8.) 13. On June 11, 2020, undersigned counsel received further email correspondence from Defendants' the Normandie counsel. While initially the correspondence addressed whether Plaintiff would voluntarily discontinue this action against the Normandie Defendants (which Plaintiff declined to do), counsel for the Normandie Defendants specifically stated "Had you provided the discovery, rather than rejected same, we could discuss discovery. I am truly fine Conference...." waiting for a Preliminary A true and correct copy of the June 11, 2020 email Defendants' correspondence with the Normandie counsel is attached hereto as Exhibit 4. (Emphasis added). 4 4 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 14. Despite appearing to backtrack on the threatened motion to compel by indicating Conference," that the Normandie Defendants were "fine waiting for a Preliminary the Normandie Defendants instead filed the instant Motion on June 19, 2020. 15. As a threshold matter, in bringing this Motion, the Normandie Defendants have Rules," completely disregarded this Court's part rules ("Part 63 attached hereto as Exhibit 5) concerning Discovery Motions. In particular, the Part 63 Rules state: It is preferred that discovery disputes be resolved through a court conference - not through motion practice - unless otherwise directed. Pre-motion conferences must be held to permit the Court an opportunity to resolve disputes before motion practice ensues and to control its calendar in the context of discovery and trial schedules. (See Part 63 Rules at p. 6) (emphasis in original). The Part 63 Rules also set forth a letter brief requirement and process for resolution of the dispute by telephone or in-person conference with the Court, which rules the Normandie Defendants have also not complied with. (Id.) 16. Moreover, the Normandie Defendants have never actually attempted to resolve these discovery disputes in good faith with undersigned counsel. Instead, the Normandie Defendants failed and refused to confer with undersigned counsel regarding discovery scheduling and other discovery matters, resorting to threats and bullying Plaintiff with unnecessary motions practice even though throughout this process Plaintiff has never once indicated that she will not respond to Normandie's Discovery Demands at all. To the contrary, Plaintiff clearly expressed that the intention is to proceed with discovery in a coordinated fashion, with alldefendant parties participating and with agreed-upon parameters and dates that are mutually agreeable. That position was, apparently, unacceptable to the Normandie Defendants. 17. Plaintiff is willing to work with the Normandie Defendants to arrive at a good faith resolution to this discovery impasse. In particular, Plaintiff respectfully submits that the Court should schedule a preliminary conference and counsel for the Normandie Defendants should 5 5 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 comply with the Part 63 Rules and meet and confer with Plaintiff and the other defendant parties who have appeared in this action in advance of said conference. That is allPlaintiff ever sought in the firstplace. 18. Plaintiff is currently diligently working on assembling the necessary responses to Defendants' the Normandie Discovery Demands and will respond appropriately following the entry of a discovery schedule and order and the resubmission of Normandie's corrected Discovery Demands. ATTORNEYS' II. PLAINTIFF SHOULD BE AWARDED COSTS AND FEES IN CONNECTION WITH THIS MOTION AS A SANCTION 19. Under Section 130-1.1 of the Rules of the Chief Administrator, the Court may award costs "in the form of reimbursement for actual expenses reasonably incurred and reasonable conduct," attorney's fees, resulting from frivolous and these costs and sanctions may be imposed against either a party or an attorney or both. 22 N.Y.C.R.R. §130-1.1. Frivolous conduct is defined by the Court as either the assertion of an argument that cannot be supported by law, conduct that another," "is undertaken primarily to ...harass or maliciously injure or the assertion of "material false." - factual statements that are 22 N.Y.C.R.R. §130-1.1(c) (1) (3). 20. Plaintiff should never have had to incur the costs to oppose this unnecessary Motion parties' in connection with the above-mentioned discovery dispute, which is a waste of both the and the Court's resources. The issues could have been resolved between the parties and without the Court's intervention had the Normandie Defendants cooperated with Plaintiff's request to schedule a preliminary conference and meet and confer regarding discovery scheduling and other discovery issues. Instead, as evidenced by the emails exchanged with counsel for the Normandie Defendants (see Exhibits 1-3 hereto), counsel irrationally demanded all discovery responses and 6 6 of 7 FILED: NEW YORK COUNTY CLERK 07/07/2020 02:56 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/07/2020 complete production before even agreeing to appear for a Preliminary Conference (again, a position which is nonsensical) and otherwise refused to re-serve corrected Discovery Demands. 21. The Normandie Defendants then compounded their bad faith by failing to follow the Part 63 Rules regarding Discovery Motions, which require pre-motion conferences. 22. For these reasons, Plaintiff respectfully requests that the Court impose sanctions attorneys' upon the Normandie Defendants in the form of costs and fees in opposing the instant Motion. Commissioners of State Ins. Fund v. Kernell, 91 A.D.3d 811, 812, 938 N.Y.S.2d 104, 105 (2d Dep't 2012) (granting motions for sanctions and costs in opposing "frivolous conduct"); Good Old Days Tavern, Inc. v. Zwirn, 261 A.D.2d 288, 289, 691 N.Y.S.2d 759, 760 (1st Dep't 1999) (same). CONCLUSION For all of the reasons set forth above, Plaintiff respectfully requests that this Court (i) dismiss Normandie's Motion in its entirety; (ii)grant Plaintiff's Cross Motion for Sanctions; and (iii)grant such other and further relief as this Court deems just, proper and equitable. Dated: New York, New York July 7, 2020 /s/ Janice I. Goldberg Janice I.Goldberg 7 7 of 7