Preview
FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021
FILED: APPELLATE DIVISION - 2ND DEPT 05/27/2020 12:09 PM 2019-13672
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/21/2020
To be argued by
Annette G. Hasapidis
(15 minutes)
Supreme Court Of The State Of New York
Appellate Division : Second Department
Docket No.: 2019-13672
SAMI MUHAMETAJ,
Plaintiff-Respondent,
-and-
SAMI CONSTRUCTION,
Plaintiff,
-against-
TOWN OF ORANGETOWN,
Defendant-Appellant,
-and-
ROBERT V. MAGRINO, WILLIAM MCPARTLAND and STEVEN SAAL,
Non-Party-Appellants.
____________________________________________________________
BRIEF OF DEFENDANT-APPELLANT AND NON-PARTY-
APPELLANT
____________________________________________________________
HASAPIDIS LAW OFFICES
Co-Appellate Counsel for Non-Party Appellant
ROBERT V. MAGRINO
Post Office Box 827
South Salem, New York 10590
(914) 533-3049/ahasapidis@appellatelaw.biz
SCALISE & HAMILTON LLP
Co-Appellate Counsel for Non-Party Appellant
ROBERT V. MAGRINO
670 White Plains Road, Suite 325
Scarsdale, New York 10583
(914) 725-2801/dscalise@scalisethics.com
KEANE & BEANE, P.C.
Co-Appellate Counsel for Defendant-Appellant
TOWN OF ORANGETOWN and Non-Party Appellant
ROBERT V. MAGRINO
445 Hamilton Avenue, Suite 1500
White Plains, New York 10601
(914) 946-4777/jsiebert@kblaw.com
Rockland County Clerk’s Index No.: 033000/2018
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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ I
TABLE OF AUTHORITIES ............................................................................... IV
PRELIMINARY STATEMENT ............................................................................1
STATEMENT OF QUESTIONS PRESENTED ..................................................6
STATEMENT OF FACTS ......................................................................................7
A. The Underlying Action. .....................................................................7
B. The January 29, 2019 Conference. ....................................................8
C. The Initial Discovery Exchange ........................................................9
D. The April 12, 2019 Conference. ......................................................10
E. The Town Proffered Affidavits From The Town
Attorney And Board Members, Averring That All Of The
Electronic Communications Requested By Plaintiffs – From
The Time Period April 23-April 25, 2018 -- Had Been
Located And Produced. ....................................................................................11
F. The Court Never Directed, And Plaintiffs’
Counsel Never Demanded, That The Town Undertake
Electronic Discovery In Any Particular Manner. ............................................11
G. The July 12, 2019 Conference .........................................................12
H. The October 4, 2019 Conference. ....................................................14
I. The Court’s In Camera Order. .........................................................17
J. The Town Notifies The Court Of The Technical
Error In Searching For Electronic Discovery And The
Town’s Immediate Corrective Actions. ...........................................................17
K. Plaintiffs’ Letter Demand For Adverse Inferences
Against The Town For Alleged Discovery Noncompliance. ..........................18
L. The Town’s Response, Explaining That An IT
Employee Had Unintentionally Narrowed The Search For
Electronic Documents, That 9 Depositions Had Been Held,
That The Town Attorney Was Not A Decisionmaker
Subject To Deposition, That The Requested Video Of The
Town Board Meeting Did Not Exist, And Therefore That
The Requested Sanctions Were Improper. ......................................................19
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M. Plaintiffs’ Reply. ..........................................................................20
N. The November 1, 2019 Conference. ............................................22
O. The Town Requests An Opportunity To Be
Heard, Which Was Denied. .............................................................................23
P. The Sua Sponte Sanctions Order. ................................................23
Q. The Discontinuance Of The Underlying Action..........................25
ARGUMENT ..........................................................................................................26
POINT I...................................................................................................................26
THE GRANT OF LEAVE TO APPEAL IS NECESSARY
AND PROPER. ....................................................................................................26
POINT II .................................................................................................................29
THE LOWER COURT ERRED IN IMPOSING SANCTIONS
WITHOUT FIRST AFFORDING THE PARTIES AN
OPPORTUNITY TO BE HEARD. THE SANCTIONS
SHOULD BE VACATED OR, ALTERNATIVELY, THE
MATTER REMITTED FOR A HEARING BEFORE A
DIFFERENT JUSTICE. .......................................................................................34
POINT III ...............................................................................................................41
BECAUSE ALL EVIDENCE BEFORE THE COURT
DEMONSTRATED THAT THE TOWN AND TOWN
ATTORNEY DID NOT ENGAGE IN FRIVOLOUS
CONDUCT, THE SANCTIONS SHOULD,
RESPECTFULLY, BE VACATED WITHOUT A HEARING.
THE COURT ERRED IN HOLDING OTHERWISE. ........................................41
A. The Applicable Law.........................................................................42
B. There Is No Evidence That Electronic Discovery
Was Intentionally Withheld. The Town’s Submissions
Credibly Explained That The Town Attorney Discovered
An Omission And Immediately Corrected It. ..................................................45
C. The Court Lacked Even A Non-Evidentiary Basis
For Concluding That The Town And Town Attorney
Manipulated The Search Terms For Electronic Discovery.
The Town Discovered The Mistake And Alerted The Court
If Its Corrective Efforts. ...................................................................................47
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D. The Affidavits Were Not Intentionally Misleading
But Correctly Stated That Electronic Discovery Had Been
Provided In Furtherance Of The Town’s Efforts To Produce
All Relevant Information. The Court And Plaintiffs Never
Directed Or Requested, Respectively, That Electronic
Discovery Be Conducted In Any Particular Fashion And
Using Any Particular Search Terms. ...............................................................49
E. The Court Cited No Basis For Holding That The
Town Attorney Engaged In Frivolous Conduct By Delaying
The Witnesses’ Production. .............................................................................52
CONCLUSION.......................................................................................................57
CERTIFICATE OF COMPLIANCE ..................................................................57
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TABLE OF AUTHORITIES
Page(s)
Cases
1415, LLC v New York Mar. & Gen. Ins. Co.,
181 A.D.3d 629 [2d Dept Mar. 11, 2020]............................................................51
Breslaw v. Breslaw,
209 A.D.2d 662 [2d Dep’t 1994] .........................................................................29
Espinoza v. City of New York,
113 A.D.3d 590 [2d Dep’t 2014] .................................................................. 53, 54
Heilberg v. Rosario,
87 A.D.2d 604 [2d Dep’t 1982] ...........................................................................56
Hester v Hester,
121 A.D.3d 645 [2d Dep’t 2014] .........................................................................35
Hines v. RAP Realty Corp.,
254 A.D.2d 330 ....................................................................................................35
JP Morgan Chase Bank, Nat. Ass'n v Butler,
129 A.D.3d 777 [2d Dep’t 2015] .........................................................................27
Mazo v. NYRAC, Inc.,
191 A.D.2d 617 [2d Dep’t 1993] .........................................................................36
Mingo v Brown,
176 A.D.3d 945 [2d Dep’t 2019] .........................................................................27
Muhametaj v Town of Orangetown,
114 NYS.3d 201 [Sup Ct 2019] ...........................................................................24
O'Grady v McBarnette,
201 A.D.2d 758 [3d Dep’t 1994] .........................................................................29
People v. Komosa,
47 Misc.2d 634 [City Court, City of Kingston 1965] ..........................................43
Pisano v. Door Control Inc.,
268 A.D.2d 416 [2d Dep’t 2000] .........................................................................56
Ray v. Balestriere Fariello LLP,
2019 U.S. Dist. LEXIS 179235 [S.D.N.Y. Oct. 16, 2019] ..................................24
Renke v Kwiecinski,
126 A.D.3d 961 [2d Dep’t 2015] .........................................................................27
Steiner v. Bonhamer,
146 Misc.2d 10 [Sup. Ct., Allegany Co., 1989] ..................................................43
Tavella v. Tavella,
25 A.D.3d 523 [App. Term 2d Dep’t 2004] ........................................................43
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Rules
C.P.L.R. §2214 .........................................................................................................34
C.P.L.R. §2215 .........................................................................................................34
C.P.L.R. §3101 .........................................................................................................51
C.P.L.R. §5701[c] ....................................................................................................27
Regulations
22 N.Y.C.R.R. §1240.7(d) (1) .................................................................................26
22 N.Y.C.R.R. § 1200 ..............................................................................................51
22 N.Y.C.R.R. §130-1.1 .................................................................................. passim
22 N.Y.C.R.R. § 1240.4 ...........................................................................................26
22 N.Y.C.R.R. § 1240.2 ...........................................................................................26
22 N.Y.C.R.R. § 1240.3 ...........................................................................................26
22 N.Y.C.R.R. § 1240.7 ...........................................................................................26
22 N.Y.C.R.R. § 1240.8 ...........................................................................................26
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PRELIMINARY STATEMENT
Defendant-Appellant Town of Orangetown (“the Town”) and Non-Party
Appellant Orangetown Town Attorney Robert Magrino, Esq. (“the Town
Attorney”) submit this brief in support of their appeal from the Sanctions Order
entered by the Supreme Court, Rockland County (Hon. Paul I. Marx, J.S.C.,
presiding) on November 20, 2019 (the “Sanctions Order”) (1-24)1.
The lower court, sua sponte, without a hearing, and without ever reviewing a
discovery demand or discovery response, entered the Sanctions Order following a
compliance conference. Then, the court summarily determined that sanctions
should be imposed upon the Town and that the Town Attorney (along with two
members of the firm which represented the Town at the time the discovery was
conducted) should be referred to the Grievance Committee for disciplinary action.
(3-22).
The lower court precipitously imposed sanctions because of its erroneous
belief that the Town intentionally withheld, or possibly deleted, electronic
documents (“e-documents”) and other materials in order to frustrate discovery.
Additionally, the court erroneously found that the Town delayed the production of
various witnesses for examinations before trial. Finally, the court found that
previously submitted affidavits from Town employees and the Town Attorney,
1
Numerical references in parentheses identify the pages of the Joint Record on Appeal.
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which attested that documents sought through pre-trial discovery had been
disclosed, were intentionally false.
The court’s conclusions were incorrect, and were reached in the absence of a
record which documented that the Town, the Town Attorney or anyone engaged in
sanctionable conduct. The utter lack of proof occurred because, as the motion court
stated, the presiding justice prohibits litigants from making discovery motions, and
even denied the Town permission to move for a protective order to assert privilege
with respect to certain discovery. As a result of this restrictive practice, the court
based its determination on letters from the parties and arguments made at court
conferences, which raised disputed issues that could not be resolved without a
careful review of affirmations, discovery demands, and discovery responses. The
court chose not to resolve the disputes through motion practice and a fully
developed record, but chose to credit Plaintiff’s counsel’s disputed and unproven
oral assertions and prohibited the Town’s Outside Counsel from making a proper
Record, based on evidence and the parties’ discovery demands and responses.
As explained below, Plaintiffs’ counsel made incorrect or misleading
representations to the court which the court accepted over the Town’s objection
and without any fact-finding inquiry.2 For example, the court concluded that the
2
As the Town was represented by Outside Counsel, the Town Attorney did not appear before the
motion court.
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Town had filed false affidavits concerning the production of e-documents
requested in discovery, when it had not.
The court’s error was underscored by its failure to direct a hearing before
imposing sanctions, at which time evidence would have been presented to
demonstrate that the Town had not intentionally withheld any discovery, had not
delayed depositions, and had not filed false affidavits. A hearing would have
provided the Town and Town Attorney an opportunity to demonstrate that their
conduct was not sanctionable. However, they were denied this fundamental
procedural safeguard, despite a request for same.
On the merits, the Sanctions Order is based upon misapprehensions of fact
concerning the conduct of the Town and Town Attorney. Contrary to the lower
court’s findings, no Town-maintained emails or other e-documents sought in this
action were destroyed. All Town emails were (and remain) preserved in the
Town’s server and were capable of production. Nor did the Town or the Town
Attorney withhold production of these materials or witnesses to delay pre-trial
proceedings or to disregard the lower court’s discovery directives. To the contrary,
it was the Town Attorney who realized – just before the November 1, 2019 Court
conference – that certain emails had inadvertently not been disclosed, prompting
him to take immediate action to facilitate their production. The Town and Town
Attorney’s conduct was unintentional and consequently, the antithesis of frivolous
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disclosure tactics. Therefore, a sanction and/or referral for disciplinary review
were unwarranted. Moreover, such a referral or sanction was improper without
affording the Town and Town Attorney an opportunity to be heard.
An examination of the very limited Record confirms that an unintentional
mishap in the search for e-documents, and the Town’s mistaken belief that
requested materials had been disclosed, led to a temporary failure to provide
discovery. These were mere mistakes, as opposed to calculated and deliberate
conduct, and fail to provide the basis for the drastic measures imposed by the
court below. The Record establishes that it was the Town, and the Town Attorney,
who discovered this omission and immediately sought to correct it on its own
accord. Such conduct bespeaks an unintentional discovery omission rather than an
intentional withholding of discovery or disregard of court directives.
Moreover, the Town did not delay in producing witnesses for pre-trial
examination, but instead responded to an ever-widening scope of potential
deponents identified by Plaintiff as discovery progressed, with no offer of proof by
Plaintiff’s counsel as to materiality or relevance establishing the need for the
additional information or witnesses.
Finally, the witnesses who swore out affidavits attesting to the disclosure of
these materials did not offer willfully false testimony. Rather, the affidavits
reflected the true status of select emails and texts previously requested at the time
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they were executed, and thereby, were based upon the knowledge and good faith
belief of the affiants (including the Town Attorney) concerning the status and
scope of discovery materials that had been located and disclosed by the Town.
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STATEMENT OF QUESTIONS PRESENTED
1. A sua sponte Order is not appealable as of right. However, this Court
has a history of granting leave to appeal from such orders which impose sanctions
against a party. Are these Appellants entitled to leave to appeal?
Yes. There is no basis for departing from this Court’s precedent.
2. Did the lower court err in issuing the Sanctions Order without first
affording the Town and Town Attorney an opportunity to be heard?
Yes. The lower court should not have sua sponte entered the Sanctions
Order without a hearing. The Town and the Town Attorney requested, and had the
right to, a reasonable opportunity to be heard on the issue of whether sanctions and
disciplinary referral were warranted.
3. Did the lower court err in determining that the Town and Town
Attorney engaged in frivolous conduct, under 22 N.Y.C.R.R. § 130-1.1, with
respect to the production of documentary discovery and witnesses for deposition?
Yes. The lower court erroneously imposed sanctions under 22 N.Y.C.R.R. §
130-1.1 when the limited evidence did not support such a drastic penalty.
Moreover, the court failed to afford the Town and Town Attorney the benefit of
every reasonable doubt from the evidence.
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STATEMENT OF FACTS
A. The Underlying Action.
This action involves a dispute as to whether property owned by Plaintiff-
Respondent Sami Muhametaj (“Plaintiff”) is situated within an R-15 or R-40
zoning district under the Town’s zoning code (23-24).3 Before acquiring this
property, Plaintiff reviewed zoning maps published by the Town, which designated
these premises as lying within an R-15 zoning district (Id.). Under R-15 zoning
standards, this property -- due to its size -- could be eligible for subdivision into
two (2) lots (Id.).
After purchasing this parcel, Plaintiff applied to the Town of Orangetown
Planning Board (the “Planning Board”) for a two-lot subdivision and was advised
that the property was in the R-40 zoning district pursuant to a local law (24).
On February 8, 2017, the Planning Board declined to consider Plaintiff’s
application because the proposed subdivision was not in compliance with the R-40
zoning requirements (24).
Thereafter, Plaintiff petitioned the Orangetown Town Board, requesting a
rezoning of the property from R-40 to R-15 (Id.). The Town Board entertained this
petition and conducted a public hearing on April 24, 2018 (Id.). At the conclusion
of this hearing, the Town Board denied Plaintiff’s rezoning petition. (Id.).
3
The court dismissed Plaintiff Sami Construction from the action in December 2018 (145).
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Plaintiff then commenced this action seeking a declaration that the property
lies within the R-15 zoning district. Plaintiff also contested the denial of the
rezoning petition under Article 78 of the Civil Practice Law and Rules. Plaintiff
further alleged a civil rights violation; that the denial of the rezoning petition was
the product of discriminatory action on the part of the Town (26-27).
The Town (through its Outside Counsel) denied these claims and moved,
pre-answer, for dismissal. The lower court dismissed Plaintiff Sami Construction
from the action and dismissed the Article 78 challenge, but sustained Plaintiff’s
declaratory judgment and civil rights claims (23-34, 145).
B. The January 29, 2019 Conference.
At the first conference before the court following joinder of issue on January
29, 2019, Plaintiff’s counsel asserted that he had not yet served discovery
demands, but nonetheless wanted a ruling concerning the discoverability of his
not-yet identified items:
. . . I’ll send out demands, your Honor, but the ones I know would be
objectionable to them so I want to bring them up now. I’m going to
need the text messages and e-mails from the Town Attorney to the
town board members on the day of the hearing and the day before,
which is April -- I have April 23rd to April 25th, 2018 (37).
The court questioned why the attorney-client privilege did not apply (37),
but when the Town’s Outside Counsel asked that they be allowed to file a motion
for protective relief on this basis, the court disagreed. According to the court, a
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discovery dispute implicating the attorney-client privilege could not be resolved by
motion:
THE COURT: You’re clearly new here. We discourage motions (38;
see 340: “Ms. Meyers, I don’t take discovery motions, don’t make
one”; see also 4n.3).
So, the court sua sponte ordered the production of emails and text messages
between the Town Attorney and Town Board members from April 23 through
April 25, 2018 for in camera review by the court, to be submitted by March 19,
2019 (39-42). This sua sponte order and refusal to consider a motion deprived the
Town of the opportunity to object, either generally or specifically, to the
production of the emails and text messages.
The court then directed service of discovery demands by all parties by
February 20, 2019 and responses by all parties no later than March 19, 2019 (39-
42).
The court scheduled a compliance conference for May 23, 2019 (43).
C. The Initial Discovery Exchange
On April 8, 2019, Plaintiff wrote to the court, complaining that the court-
ordered discovery had not yet been provided.4
On April 9, 2019, the Town, by Outside Counsel, provided the court with the
text messages for in camera review and stated that no email exchanges had been
4
Although Plaintiff served discovery demands, they were not part of the Record before the lower
court.
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located for the time period specified by Plaintiff’s counsel. The Town’s Outside
Counsel objected to any disclosure to Plaintiff as privileged (45-46).
D. The April 12, 2019 Conference.
At the April 12, 2019 conference, the court severely admonished the Town’s
Outside Counsel for failing to provide the documents for in camera review by
March 19, 2019 or seeking leave to do so (48-49): “Is there somebody at Marshall
Dennehy Warner Coleman and Goggin that has been appointed to the Court of
Appeals that has overruled my directives that I’m not aware of?” Outside Counsel
repeatedly apologized for the delay (48, 49).
Plaintiff’s counsel admitted that he had received paper discovery from the
Town, but that he had “received no emails” (49).
The Town’s Outside Counsel objected to Plaintiff’s claim because Plaintiff’s
counsel had not complained of a deficiency, but instead waited until the conference
to make a conclusory claim of non-compliance:
MR. SAAL: Your Honor, as far as we’re concerned, we responded to
his discovery demands. If he has an issue regarding the particularities
of our response, he can serve a good faith letter and advise us as to
what was deficient in our responses. At this point, he’s just putting us
out there in open court as to what he says is deficient in the responses.
I just don’t think it’s appropriate for me to respond to that (50).
The court directed Plaintiff’s counsel to issue a deficiency letter with regard
to missing discovery by April 24, 2019, to which the Town would comply by no
later than May 17, 2019 (54-55).
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The court also acknowledged receipt of the Town’s in camera production
and found “there’s nothing in these text messages discoverable in my opinion”
(52).5
E. The Town Proffered Affidavits From The Town Attorney
And Board Members, Averring That All Of The Electronic
Communications Requested By Plaintiffs – From The Time
Period April 23-April 25, 2018 -- Had Been Located And
Produced.
The Town Attorney and all five Town Board members executed affidavits in
June 2019, attesting to their search and production of the electronic discovery
requested, which, at the time, only included communications between the Town
Attorney and Board members between April 23 through April 25, 2018. Those
documents were produced to Justice Marx for in camera review (57-58).
At the time, Plaintiff’s counsel did not object to this proffer.
F. The Court Never Directed, And Plaintiff’s Counsel Never
Demanded, That The Town Undertake Electronic Discovery In
Any Particular Manner.
The court never defined the scope of e-discovery to facilitate the Town’s
discovery efforts. Nor did the lower court discuss the manner and form in which
5
Despite this ruling, when Plaintiff’s counsel asked whether any of those messages addressed a
supermajority vote, the court disclosed the content of privileged communications by admitting that, in
fact, they had but that it was nevertheless not discoverable (53).
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Preview
FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 FILED: APPELLATE DIVISION - 2ND DEPT 05/27/2020 12:09 PM 2019-13672 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/21/2020 To be argued by Annette G. Hasapidis (15 minutes) Supreme Court Of The State Of New York Appellate Division : Second Department Docket No.: 2019-13672 SAMI MUHAMETAJ, Plaintiff-Respondent, -and- SAMI CONSTRUCTION, Plaintiff, -against- TOWN OF ORANGETOWN, Defendant-Appellant, -and- ROBERT V. MAGRINO, WILLIAM MCPARTLAND and STEVEN SAAL, Non-Party-Appellants. ____________________________________________________________ BRIEF OF DEFENDANT-APPELLANT AND NON-PARTY- APPELLANT ____________________________________________________________ HASAPIDIS LAW OFFICES Co-Appellate Counsel for Non-Party Appellant ROBERT V. MAGRINO Post Office Box 827 South Salem, New York 10590 (914) 533-3049/ahasapidis@appellatelaw.biz SCALISE & HAMILTON LLP Co-Appellate Counsel for Non-Party Appellant ROBERT V. MAGRINO 670 White Plains Road, Suite 325 Scarsdale, New York 10583 (914) 725-2801/dscalise@scalisethics.com KEANE & BEANE, P.C. Co-Appellate Counsel for Defendant-Appellant TOWN OF ORANGETOWN and Non-Party Appellant ROBERT V. MAGRINO 445 Hamilton Avenue, Suite 1500 White Plains, New York 10601 (914) 946-4777/jsiebert@kblaw.com Rockland County Clerk’s Index No.: 033000/2018 1 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................ I TABLE OF AUTHORITIES ............................................................................... IV PRELIMINARY STATEMENT ............................................................................1 STATEMENT OF QUESTIONS PRESENTED ..................................................6 STATEMENT OF FACTS ......................................................................................7 A. The Underlying Action. .....................................................................7 B. The January 29, 2019 Conference. ....................................................8 C. The Initial Discovery Exchange ........................................................9 D. The April 12, 2019 Conference. ......................................................10 E. The Town Proffered Affidavits From The Town Attorney And Board Members, Averring That All Of The Electronic Communications Requested By Plaintiffs – From The Time Period April 23-April 25, 2018 -- Had Been Located And Produced. ....................................................................................11 F. The Court Never Directed, And Plaintiffs’ Counsel Never Demanded, That The Town Undertake Electronic Discovery In Any Particular Manner. ............................................11 G. The July 12, 2019 Conference .........................................................12 H. The October 4, 2019 Conference. ....................................................14 I. The Court’s In Camera Order. .........................................................17 J. The Town Notifies The Court Of The Technical Error In Searching For Electronic Discovery And The Town’s Immediate Corrective Actions. ...........................................................17 K. Plaintiffs’ Letter Demand For Adverse Inferences Against The Town For Alleged Discovery Noncompliance. ..........................18 L. The Town’s Response, Explaining That An IT Employee Had Unintentionally Narrowed The Search For Electronic Documents, That 9 Depositions Had Been Held, That The Town Attorney Was Not A Decisionmaker Subject To Deposition, That The Requested Video Of The Town Board Meeting Did Not Exist, And Therefore That The Requested Sanctions Were Improper. ......................................................19 2 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 M. Plaintiffs’ Reply. ..........................................................................20 N. The November 1, 2019 Conference. ............................................22 O. The Town Requests An Opportunity To Be Heard, Which Was Denied. .............................................................................23 P. The Sua Sponte Sanctions Order. ................................................23 Q. The Discontinuance Of The Underlying Action..........................25 ARGUMENT ..........................................................................................................26 POINT I...................................................................................................................26 THE GRANT OF LEAVE TO APPEAL IS NECESSARY AND PROPER. ....................................................................................................26 POINT II .................................................................................................................29 THE LOWER COURT ERRED IN IMPOSING SANCTIONS WITHOUT FIRST AFFORDING THE PARTIES AN OPPORTUNITY TO BE HEARD. THE SANCTIONS SHOULD BE VACATED OR, ALTERNATIVELY, THE MATTER REMITTED FOR A HEARING BEFORE A DIFFERENT JUSTICE. .......................................................................................34 POINT III ...............................................................................................................41 BECAUSE ALL EVIDENCE BEFORE THE COURT DEMONSTRATED THAT THE TOWN AND TOWN ATTORNEY DID NOT ENGAGE IN FRIVOLOUS CONDUCT, THE SANCTIONS SHOULD, RESPECTFULLY, BE VACATED WITHOUT A HEARING. THE COURT ERRED IN HOLDING OTHERWISE. ........................................41 A. The Applicable Law.........................................................................42 B. There Is No Evidence That Electronic Discovery Was Intentionally Withheld. The Town’s Submissions Credibly Explained That The Town Attorney Discovered An Omission And Immediately Corrected It. ..................................................45 C. The Court Lacked Even A Non-Evidentiary Basis For Concluding That The Town And Town Attorney Manipulated The Search Terms For Electronic Discovery. The Town Discovered The Mistake And Alerted The Court If Its Corrective Efforts. ...................................................................................47 ii 3 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 D. The Affidavits Were Not Intentionally Misleading But Correctly Stated That Electronic Discovery Had Been Provided In Furtherance Of The Town’s Efforts To Produce All Relevant Information. The Court And Plaintiffs Never Directed Or Requested, Respectively, That Electronic Discovery Be Conducted In Any Particular Fashion And Using Any Particular Search Terms. ...............................................................49 E. The Court Cited No Basis For Holding That The Town Attorney Engaged In Frivolous Conduct By Delaying The Witnesses’ Production. .............................................................................52 CONCLUSION.......................................................................................................57 CERTIFICATE OF COMPLIANCE ..................................................................57 iii 4 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 TABLE OF AUTHORITIES Page(s) Cases 1415, LLC v New York Mar. & Gen. Ins. Co., 181 A.D.3d 629 [2d Dept Mar. 11, 2020]............................................................51 Breslaw v. Breslaw, 209 A.D.2d 662 [2d Dep’t 1994] .........................................................................29 Espinoza v. City of New York, 113 A.D.3d 590 [2d Dep’t 2014] .................................................................. 53, 54 Heilberg v. Rosario, 87 A.D.2d 604 [2d Dep’t 1982] ...........................................................................56 Hester v Hester, 121 A.D.3d 645 [2d Dep’t 2014] .........................................................................35 Hines v. RAP Realty Corp., 254 A.D.2d 330 ....................................................................................................35 JP Morgan Chase Bank, Nat. Ass'n v Butler, 129 A.D.3d 777 [2d Dep’t 2015] .........................................................................27 Mazo v. NYRAC, Inc., 191 A.D.2d 617 [2d Dep’t 1993] .........................................................................36 Mingo v Brown, 176 A.D.3d 945 [2d Dep’t 2019] .........................................................................27 Muhametaj v Town of Orangetown, 114 NYS.3d 201 [Sup Ct 2019] ...........................................................................24 O'Grady v McBarnette, 201 A.D.2d 758 [3d Dep’t 1994] .........................................................................29 People v. Komosa, 47 Misc.2d 634 [City Court, City of Kingston 1965] ..........................................43 Pisano v. Door Control Inc., 268 A.D.2d 416 [2d Dep’t 2000] .........................................................................56 Ray v. Balestriere Fariello LLP, 2019 U.S. Dist. LEXIS 179235 [S.D.N.Y. Oct. 16, 2019] ..................................24 Renke v Kwiecinski, 126 A.D.3d 961 [2d Dep’t 2015] .........................................................................27 Steiner v. Bonhamer, 146 Misc.2d 10 [Sup. Ct., Allegany Co., 1989] ..................................................43 Tavella v. Tavella, 25 A.D.3d 523 [App. Term 2d Dep’t 2004] ........................................................43 iv 5 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 Rules C.P.L.R. §2214 .........................................................................................................34 C.P.L.R. §2215 .........................................................................................................34 C.P.L.R. §3101 .........................................................................................................51 C.P.L.R. §5701[c] ....................................................................................................27 Regulations 22 N.Y.C.R.R. §1240.7(d) (1) .................................................................................26 22 N.Y.C.R.R. § 1200 ..............................................................................................51 22 N.Y.C.R.R. §130-1.1 .................................................................................. passim 22 N.Y.C.R.R. § 1240.4 ...........................................................................................26 22 N.Y.C.R.R. § 1240.2 ...........................................................................................26 22 N.Y.C.R.R. § 1240.3 ...........................................................................................26 22 N.Y.C.R.R. § 1240.7 ...........................................................................................26 22 N.Y.C.R.R. § 1240.8 ...........................................................................................26 v 6 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 PRELIMINARY STATEMENT Defendant-Appellant Town of Orangetown (“the Town”) and Non-Party Appellant Orangetown Town Attorney Robert Magrino, Esq. (“the Town Attorney”) submit this brief in support of their appeal from the Sanctions Order entered by the Supreme Court, Rockland County (Hon. Paul I. Marx, J.S.C., presiding) on November 20, 2019 (the “Sanctions Order”) (1-24)1. The lower court, sua sponte, without a hearing, and without ever reviewing a discovery demand or discovery response, entered the Sanctions Order following a compliance conference. Then, the court summarily determined that sanctions should be imposed upon the Town and that the Town Attorney (along with two members of the firm which represented the Town at the time the discovery was conducted) should be referred to the Grievance Committee for disciplinary action. (3-22). The lower court precipitously imposed sanctions because of its erroneous belief that the Town intentionally withheld, or possibly deleted, electronic documents (“e-documents”) and other materials in order to frustrate discovery. Additionally, the court erroneously found that the Town delayed the production of various witnesses for examinations before trial. Finally, the court found that previously submitted affidavits from Town employees and the Town Attorney, 1 Numerical references in parentheses identify the pages of the Joint Record on Appeal. 1 7 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 which attested that documents sought through pre-trial discovery had been disclosed, were intentionally false. The court’s conclusions were incorrect, and were reached in the absence of a record which documented that the Town, the Town Attorney or anyone engaged in sanctionable conduct. The utter lack of proof occurred because, as the motion court stated, the presiding justice prohibits litigants from making discovery motions, and even denied the Town permission to move for a protective order to assert privilege with respect to certain discovery. As a result of this restrictive practice, the court based its determination on letters from the parties and arguments made at court conferences, which raised disputed issues that could not be resolved without a careful review of affirmations, discovery demands, and discovery responses. The court chose not to resolve the disputes through motion practice and a fully developed record, but chose to credit Plaintiff’s counsel’s disputed and unproven oral assertions and prohibited the Town’s Outside Counsel from making a proper Record, based on evidence and the parties’ discovery demands and responses. As explained below, Plaintiffs’ counsel made incorrect or misleading representations to the court which the court accepted over the Town’s objection and without any fact-finding inquiry.2 For example, the court concluded that the 2 As the Town was represented by Outside Counsel, the Town Attorney did not appear before the motion court. 2 8 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 Town had filed false affidavits concerning the production of e-documents requested in discovery, when it had not. The court’s error was underscored by its failure to direct a hearing before imposing sanctions, at which time evidence would have been presented to demonstrate that the Town had not intentionally withheld any discovery, had not delayed depositions, and had not filed false affidavits. A hearing would have provided the Town and Town Attorney an opportunity to demonstrate that their conduct was not sanctionable. However, they were denied this fundamental procedural safeguard, despite a request for same. On the merits, the Sanctions Order is based upon misapprehensions of fact concerning the conduct of the Town and Town Attorney. Contrary to the lower court’s findings, no Town-maintained emails or other e-documents sought in this action were destroyed. All Town emails were (and remain) preserved in the Town’s server and were capable of production. Nor did the Town or the Town Attorney withhold production of these materials or witnesses to delay pre-trial proceedings or to disregard the lower court’s discovery directives. To the contrary, it was the Town Attorney who realized – just before the November 1, 2019 Court conference – that certain emails had inadvertently not been disclosed, prompting him to take immediate action to facilitate their production. The Town and Town Attorney’s conduct was unintentional and consequently, the antithesis of frivolous 3 9 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 disclosure tactics. Therefore, a sanction and/or referral for disciplinary review were unwarranted. Moreover, such a referral or sanction was improper without affording the Town and Town Attorney an opportunity to be heard. An examination of the very limited Record confirms that an unintentional mishap in the search for e-documents, and the Town’s mistaken belief that requested materials had been disclosed, led to a temporary failure to provide discovery. These were mere mistakes, as opposed to calculated and deliberate conduct, and fail to provide the basis for the drastic measures imposed by the court below. The Record establishes that it was the Town, and the Town Attorney, who discovered this omission and immediately sought to correct it on its own accord. Such conduct bespeaks an unintentional discovery omission rather than an intentional withholding of discovery or disregard of court directives. Moreover, the Town did not delay in producing witnesses for pre-trial examination, but instead responded to an ever-widening scope of potential deponents identified by Plaintiff as discovery progressed, with no offer of proof by Plaintiff’s counsel as to materiality or relevance establishing the need for the additional information or witnesses. Finally, the witnesses who swore out affidavits attesting to the disclosure of these materials did not offer willfully false testimony. Rather, the affidavits reflected the true status of select emails and texts previously requested at the time 4 10 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 they were executed, and thereby, were based upon the knowledge and good faith belief of the affiants (including the Town Attorney) concerning the status and scope of discovery materials that had been located and disclosed by the Town. 5 11 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 STATEMENT OF QUESTIONS PRESENTED 1. A sua sponte Order is not appealable as of right. However, this Court has a history of granting leave to appeal from such orders which impose sanctions against a party. Are these Appellants entitled to leave to appeal? Yes. There is no basis for departing from this Court’s precedent. 2. Did the lower court err in issuing the Sanctions Order without first affording the Town and Town Attorney an opportunity to be heard? Yes. The lower court should not have sua sponte entered the Sanctions Order without a hearing. The Town and the Town Attorney requested, and had the right to, a reasonable opportunity to be heard on the issue of whether sanctions and disciplinary referral were warranted. 3. Did the lower court err in determining that the Town and Town Attorney engaged in frivolous conduct, under 22 N.Y.C.R.R. § 130-1.1, with respect to the production of documentary discovery and witnesses for deposition? Yes. The lower court erroneously imposed sanctions under 22 N.Y.C.R.R. § 130-1.1 when the limited evidence did not support such a drastic penalty. Moreover, the court failed to afford the Town and Town Attorney the benefit of every reasonable doubt from the evidence. 6 12 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 STATEMENT OF FACTS A. The Underlying Action. This action involves a dispute as to whether property owned by Plaintiff- Respondent Sami Muhametaj (“Plaintiff”) is situated within an R-15 or R-40 zoning district under the Town’s zoning code (23-24).3 Before acquiring this property, Plaintiff reviewed zoning maps published by the Town, which designated these premises as lying within an R-15 zoning district (Id.). Under R-15 zoning standards, this property -- due to its size -- could be eligible for subdivision into two (2) lots (Id.). After purchasing this parcel, Plaintiff applied to the Town of Orangetown Planning Board (the “Planning Board”) for a two-lot subdivision and was advised that the property was in the R-40 zoning district pursuant to a local law (24). On February 8, 2017, the Planning Board declined to consider Plaintiff’s application because the proposed subdivision was not in compliance with the R-40 zoning requirements (24). Thereafter, Plaintiff petitioned the Orangetown Town Board, requesting a rezoning of the property from R-40 to R-15 (Id.). The Town Board entertained this petition and conducted a public hearing on April 24, 2018 (Id.). At the conclusion of this hearing, the Town Board denied Plaintiff’s rezoning petition. (Id.). 3 The court dismissed Plaintiff Sami Construction from the action in December 2018 (145). 7 13 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 Plaintiff then commenced this action seeking a declaration that the property lies within the R-15 zoning district. Plaintiff also contested the denial of the rezoning petition under Article 78 of the Civil Practice Law and Rules. Plaintiff further alleged a civil rights violation; that the denial of the rezoning petition was the product of discriminatory action on the part of the Town (26-27). The Town (through its Outside Counsel) denied these claims and moved, pre-answer, for dismissal. The lower court dismissed Plaintiff Sami Construction from the action and dismissed the Article 78 challenge, but sustained Plaintiff’s declaratory judgment and civil rights claims (23-34, 145). B. The January 29, 2019 Conference. At the first conference before the court following joinder of issue on January 29, 2019, Plaintiff’s counsel asserted that he had not yet served discovery demands, but nonetheless wanted a ruling concerning the discoverability of his not-yet identified items: . . . I’ll send out demands, your Honor, but the ones I know would be objectionable to them so I want to bring them up now. I’m going to need the text messages and e-mails from the Town Attorney to the town board members on the day of the hearing and the day before, which is April -- I have April 23rd to April 25th, 2018 (37). The court questioned why the attorney-client privilege did not apply (37), but when the Town’s Outside Counsel asked that they be allowed to file a motion for protective relief on this basis, the court disagreed. According to the court, a 8 14 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 discovery dispute implicating the attorney-client privilege could not be resolved by motion: THE COURT: You’re clearly new here. We discourage motions (38; see 340: “Ms. Meyers, I don’t take discovery motions, don’t make one”; see also 4n.3). So, the court sua sponte ordered the production of emails and text messages between the Town Attorney and Town Board members from April 23 through April 25, 2018 for in camera review by the court, to be submitted by March 19, 2019 (39-42). This sua sponte order and refusal to consider a motion deprived the Town of the opportunity to object, either generally or specifically, to the production of the emails and text messages. The court then directed service of discovery demands by all parties by February 20, 2019 and responses by all parties no later than March 19, 2019 (39- 42). The court scheduled a compliance conference for May 23, 2019 (43). C. The Initial Discovery Exchange On April 8, 2019, Plaintiff wrote to the court, complaining that the court- ordered discovery had not yet been provided.4 On April 9, 2019, the Town, by Outside Counsel, provided the court with the text messages for in camera review and stated that no email exchanges had been 4 Although Plaintiff served discovery demands, they were not part of the Record before the lower court. 9 15 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 located for the time period specified by Plaintiff’s counsel. The Town’s Outside Counsel objected to any disclosure to Plaintiff as privileged (45-46). D. The April 12, 2019 Conference. At the April 12, 2019 conference, the court severely admonished the Town’s Outside Counsel for failing to provide the documents for in camera review by March 19, 2019 or seeking leave to do so (48-49): “Is there somebody at Marshall Dennehy Warner Coleman and Goggin that has been appointed to the Court of Appeals that has overruled my directives that I’m not aware of?” Outside Counsel repeatedly apologized for the delay (48, 49). Plaintiff’s counsel admitted that he had received paper discovery from the Town, but that he had “received no emails” (49). The Town’s Outside Counsel objected to Plaintiff’s claim because Plaintiff’s counsel had not complained of a deficiency, but instead waited until the conference to make a conclusory claim of non-compliance: MR. SAAL: Your Honor, as far as we’re concerned, we responded to his discovery demands. If he has an issue regarding the particularities of our response, he can serve a good faith letter and advise us as to what was deficient in our responses. At this point, he’s just putting us out there in open court as to what he says is deficient in the responses. I just don’t think it’s appropriate for me to respond to that (50). The court directed Plaintiff’s counsel to issue a deficiency letter with regard to missing discovery by April 24, 2019, to which the Town would comply by no later than May 17, 2019 (54-55). 10 16 of 203 FILED: ROCKLAND COUNTY CLERK 08/11/2021 11:58 AM INDEX NO. 033000/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/11/2021 The court also acknowledged receipt of the Town’s in camera production and found “there’s nothing in these text messages discoverable in my opinion” (52).5 E. The Town Proffered Affidavits From The Town Attorney And Board Members, Averring That All Of The Electronic Communications Requested By Plaintiffs – From The Time Period April 23-April 25, 2018 -- Had Been Located And Produced. The Town Attorney and all five Town Board members executed affidavits in June 2019, attesting to their search and production of the electronic discovery requested, which, at the time, only included communications between the Town Attorney and Board members between April 23 through April 25, 2018. Those documents were produced to Justice Marx for in camera review (57-58). At the time, Plaintiff’s counsel did not object to this proffer. F. The Court Never Directed, And Plaintiff’s Counsel Never Demanded, That The Town Undertake Electronic Discovery In Any Particular Manner. The court never defined the scope of e-discovery to facilitate the Town’s discovery efforts. Nor did the lower court discuss the manner and form in which 5 Despite this ruling, when Plaintiff’s counsel asked whether any of those messages addressed a supermajority vote, the court disclosed the content of privileged communications by admitting that, in fact, they had but that it was nevertheless not discoverable (53). 11 17 of 203 FILED: ROCKLAND