Preview
FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ZURICH AMERICAN INSURANCE COMPANY, :
Plaintiff, : Index No. 652336/2018
-against- : AFFIRMATION IN
OPPOSITION TO
FIRST SPECIALTY INSURANCE CORPORATION, : MOTION TO
WESTERN BEEF RETAIL, INC. and WESTERN COMPEL PRODUCTION
BEEF PROPERTIES, INC., : OF PRIVILEGED
ATTORNEY-CLIENT
Defendants. : COMMUNICATIONS
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JUSTIN T. KELTON, an attorney duly admitted to practice before the Courts of the State
of New York, affirms the following to be true under penalties of perjury:
1. I am a partner at the law firm of Abrams, Fensterman, Fensterman, Eisman,
Formato, Ferrara, Wolf & Carone, LLP, counsel to defendants Western Beef Retail, Inc. and
Western Beef Properties, Inc. (together, “Western Beef”). I am fully familiar with the facts set
forth herein based upon, inter alia, my review of the case file.
2. I respectfully submit this Affirmation in opposition to the motion by Plaintiff
Zurich American Insurance Company (“Zurich”) to compel Western Beef’s former counsel,
Robert E. Brown, P.C. (the “Brown Law Firm”), to produce privileged and confidential attorney-
client communications between the Brown Law Firm and Western Beef from the time period when
the Brown Law Firm was representing Western Beef as litigation counsel in the personal injury
action entitled Desmond Garrett v. Serota Roosevelt LLC, et al., Index No. 702978/2016 (the
“Underlying Action”).
3. A party seeking to invade the privileged attorney-client communications of another
faces an extremely high burden. “The oldest among the common-law evidentiary privileges, the
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attorney-client privilege ‘fosters the open dialogue between lawyer and client that is deemed
essential to effective representation.’” Ambac Assur. Corp. v. Coutrywide Home Loans, Inc., 27
N.Y.3d 616, 623 (2016) (citation omitted). “[T]he attorney-client privilege serves a critical
function in the operation of the law and the administration of justice and may not be disregarded
lightly.” Allen v. W. Point-Pepperell Inc., 848 F. Supp. 423, 426 (S.D.N.Y 1994). As set forth
below, Zurich has come nowhere near meeting the required showing here.
4. Zurich has filed this lawsuit to obtain reimbursement from Western Beef and co-
Defendant First Specialty Insurance Company (“FSIC”) for amounts Zurich allegedly incurred
defending and indemnifying its insured, Serota Roosevelt, LLC (“Serota”), in connection with the
Underlying Action. The Brown Law Firm represented Serota in the Underlying Action. Zurich
has now filed the instant Motion against the Brown Law Firm to compel the disclosure of the
Brown Law Firm’s “complete file” (Motion at p. 3)—regardless of the specific types of documents
that are in the file, and including confidential and privileged attorney-client communications that
Zurich speculates may support its claims.
5. As a threshold matter, the documents sought by Zurich could not have any possible
relevance to Zurich’s claims in this matter. Serota was found liable at trial in the Underlying
Action, and the claims against Western Beef were dismissed, because Serota alone (and not
Western Beef) owned and controlled the area where the plaintiff’s accident occurred, and Serota
alone was negligent in failing to maintain that location. Annexed hereto as Exhibit A is a true and
correct copy of excerpts from the trial in the Underlying Action, showing the trial court’s reasoning
in reaching its decision on liability. Thus, nothing that Western Beef, FSIC, or the Brown Law
Firm did or did not do during the pendency of the Underlying Action could had any effect on
Serota’s liability. The trial court’s verdict in the Underlying Action was factually and legally
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correct and, notably, the verdict was not appealed. Therefore, none of the Brown Law Firm’s
confidential communications can possibly establish that Western Beef damaged Serota in any way.
6. Moreover, even if the documents were somehow relevant, Zurich has utterly failed
to meet its heavy burden of proving entitlement to Western Beef’s confidential and privileged
attorney-client communications. See CPLR § 3101.
7. There can be no dispute that Zurich’s request for the Brown Law Firm’s complete
unredacted file includes attorney-client communications made in connection with legal advice for
a pending litigation. Tellingly, Zurich does not claim that the documents sought fall outside the
zone of those normally protected by attorney-client privilege. Rather, in a tacit admission that the
documents at issue are indeed privileged, Zurich argues that the Court should apply a “common
interest” exception. (Mot. at p. 3).
8. The “common interest” exception does not apply here. First, it is undisputed that
Zurich was never a client of the Brown Law Firm. Rather, Serota and Western Beef were the
clients. Accordingly, Zurich lacks standing to assert any “common interest” with Western Beef.
“‘[A] plaintiff must demonstrate standing for each claim he seeks to press’ and ‘for each form of
relief’ that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008) (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “‘[T]he standing inquiry requires
careful judicial examination of a complaint’s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted.’” Cuno, 547 U.S. at 352
(citations omitted). It is highly telling that Serota has chosen not to participate in this action, and
Serota’s absence dooms Zurich’s motion (and its case).
9. Second, Zurich has made no allegation—let alone proffered any evidence—that the
documents at issue were actually “communications exchanged among” the Brown Law Firm,
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Western Beef, and Serota and/or Zurich. See Ambac Assur. Corp. v. Countrywide Home Loans,
Inc., 27 N.Y.3d 616, 625 (2016) (citing Wallace v. Wallace, 216 N.Y. 28, 35, 109 N.E. 872 [1915],
Hurlburt v. Hurlburt, 128 N.Y. 420, 424, 28 N.E. 651 [1891]). Rather, Zurich seeks documents
and communications between the Brown Law Firm and Western Beef, even if those documents
and communications did not involve Serota or Zurich in any way. Also lacking is any allegation
that Western Beef and Serota consulted the Brown Law Firm jointly. Rather, all that is alleged is
that the Brown Law Firm, for a time, had two clients. That is far too thin a reed on which to pierce
Western Beef’s attorney-client privilege, and none of the authorities referenced by Zurich support
such a sweeping invasion of privilege.
10. To the extent that Zurich argues that ithas a right to Western Beef’s privileged
communications under a clause in the Zurich Policy, that argument is nonsensical. Western Beef
is not a party to the Zurich Policy, and has no obligations whatsoever thereunder. Therefore, it
cannot provide any rights to Zurich vis-à-vis Western Beef.
11. Zurich also argues that the “at issue” doctrine exempts the otherwise-privileged
documents from protection. (Mot. at p. 3). Zurich is wrong because, as set forth above, nothing
in the Brown Law Firm’s file could possibly entitle Zurich to recover in this action. Zurich’s
insured, Serota, was found liable at trial in the Underlying Action because of Serota’s own
negligence. That undisputed fact ends the analysis.
12. Moreover, “[a] party suing to enforce an alleged right to indemnification for the
costs of defending and settling a prior lawsuit does not thereby, without more, place at issue the
party’s privileged communications with counsel concerning the prior lawsuit . . . .” Deutsche Bank
Trust Co. of Ams. V. Tri-Links Inv. Trust, 43 A.D.3d 56, 57 (1st Dep’t 2007).
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13. Further, the “at issue” doctrine only applies in limited circumstances in which a
party puts its own privileged communications at issue. It does not apply when one party attempts
to put another party’s privileged communications at issue—which is precisely what Zurich
attempts here. Id. at 63 (“A party suing to enforce an alleged right to indemnification for the costs
of defending and settling a prior lawsuit does not thereby, without more, place at issue the party’s
privileged communications with counsel concerning the prior lawsuit . . . .”); see also Royal
Indem. Co. v. Salomon Smith Barney, Inc., 2004 N.Y. Slip. Op. 50739(U), at *9 (Sup. Ct. N.Y.
Cty. 2004). Western Beef has not undertaken any affirmative action that would put at issue its
privileged communications with the Brown Law Firm. Zurich does not (and cannot) reference any
authority that would support application of the “at issue” doctrine under these circumstances.
Zurich provides nothing whatsoever to support its bald speculations that the Brown Law Firm’s
file is “likely” to have information about Western Beef’s purported “decision to pay for Serota’s
defense costs,” or Western Beef’s alleged “control of Serota’s defense.” (Mot. at p. 21). These
vague hypotheses are woefully insufficient to support a wholesale invasion of Western Beef’s
privilege.
14. At the very minimum, if the Court is not inclined to deny Zurich’s motion at this
stage (which it should), it is respectfully submitted that the Court should conduct an in camera
review of the Brown Law Firm’s file to determine: (i) whether they truly have any bearing on any
legitimate claim or defense in this action; and, ifso, (ii) whether any exception to the sacred
protection of the attorney-client privilege is applicable to any document within the file. A
wholesale production of the Brown Law Firm’s “complete file” is unsupported by the facts, the
law, or the equities.
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WHEREFORE, it is respectfully requested that the Court deny Zurich’s motion in its
entirety, and grant to Western Beef such other and further relief as the Court deems just and proper.
DATED: Brooklyn, New York
February 22, 2019
/s/ Justin T. Kelton
Justin T. Kelton
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Preview
FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X ZURICH AMERICAN INSURANCE COMPANY, : Plaintiff, : Index No. 652336/2018 -against- : AFFIRMATION IN OPPOSITION TO FIRST SPECIALTY INSURANCE CORPORATION, : MOTION TO WESTERN BEEF RETAIL, INC. and WESTERN COMPEL PRODUCTION BEEF PROPERTIES, INC., : OF PRIVILEGED ATTORNEY-CLIENT Defendants. : COMMUNICATIONS -----------------------------------------------------------------------X JUSTIN T. KELTON, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am a partner at the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, counsel to defendants Western Beef Retail, Inc. and Western Beef Properties, Inc. (together, “Western Beef”). I am fully familiar with the facts set forth herein based upon, inter alia, my review of the case file. 2. I respectfully submit this Affirmation in opposition to the motion by Plaintiff Zurich American Insurance Company (“Zurich”) to compel Western Beef’s former counsel, Robert E. Brown, P.C. (the “Brown Law Firm”), to produce privileged and confidential attorney- client communications between the Brown Law Firm and Western Beef from the time period when the Brown Law Firm was representing Western Beef as litigation counsel in the personal injury action entitled Desmond Garrett v. Serota Roosevelt LLC, et al., Index No. 702978/2016 (the “Underlying Action”). 3. A party seeking to invade the privileged attorney-client communications of another faces an extremely high burden. “The oldest among the common-law evidentiary privileges, the 1 1 of 6 FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 attorney-client privilege ‘fosters the open dialogue between lawyer and client that is deemed essential to effective representation.’” Ambac Assur. Corp. v. Coutrywide Home Loans, Inc., 27 N.Y.3d 616, 623 (2016) (citation omitted). “[T]he attorney-client privilege serves a critical function in the operation of the law and the administration of justice and may not be disregarded lightly.” Allen v. W. Point-Pepperell Inc., 848 F. Supp. 423, 426 (S.D.N.Y 1994). As set forth below, Zurich has come nowhere near meeting the required showing here. 4. Zurich has filed this lawsuit to obtain reimbursement from Western Beef and co- Defendant First Specialty Insurance Company (“FSIC”) for amounts Zurich allegedly incurred defending and indemnifying its insured, Serota Roosevelt, LLC (“Serota”), in connection with the Underlying Action. The Brown Law Firm represented Serota in the Underlying Action. Zurich has now filed the instant Motion against the Brown Law Firm to compel the disclosure of the Brown Law Firm’s “complete file” (Motion at p. 3)—regardless of the specific types of documents that are in the file, and including confidential and privileged attorney-client communications that Zurich speculates may support its claims. 5. As a threshold matter, the documents sought by Zurich could not have any possible relevance to Zurich’s claims in this matter. Serota was found liable at trial in the Underlying Action, and the claims against Western Beef were dismissed, because Serota alone (and not Western Beef) owned and controlled the area where the plaintiff’s accident occurred, and Serota alone was negligent in failing to maintain that location. Annexed hereto as Exhibit A is a true and correct copy of excerpts from the trial in the Underlying Action, showing the trial court’s reasoning in reaching its decision on liability. Thus, nothing that Western Beef, FSIC, or the Brown Law Firm did or did not do during the pendency of the Underlying Action could had any effect on Serota’s liability. The trial court’s verdict in the Underlying Action was factually and legally 2 2 of 6 FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 correct and, notably, the verdict was not appealed. Therefore, none of the Brown Law Firm’s confidential communications can possibly establish that Western Beef damaged Serota in any way. 6. Moreover, even if the documents were somehow relevant, Zurich has utterly failed to meet its heavy burden of proving entitlement to Western Beef’s confidential and privileged attorney-client communications. See CPLR § 3101. 7. There can be no dispute that Zurich’s request for the Brown Law Firm’s complete unredacted file includes attorney-client communications made in connection with legal advice for a pending litigation. Tellingly, Zurich does not claim that the documents sought fall outside the zone of those normally protected by attorney-client privilege. Rather, in a tacit admission that the documents at issue are indeed privileged, Zurich argues that the Court should apply a “common interest” exception. (Mot. at p. 3). 8. The “common interest” exception does not apply here. First, it is undisputed that Zurich was never a client of the Brown Law Firm. Rather, Serota and Western Beef were the clients. Accordingly, Zurich lacks standing to assert any “common interest” with Western Beef. “‘[A] plaintiff must demonstrate standing for each claim he seeks to press’ and ‘for each form of relief’ that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “‘[T]he standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.’” Cuno, 547 U.S. at 352 (citations omitted). It is highly telling that Serota has chosen not to participate in this action, and Serota’s absence dooms Zurich’s motion (and its case). 9. Second, Zurich has made no allegation—let alone proffered any evidence—that the documents at issue were actually “communications exchanged among” the Brown Law Firm, 3 3 of 6 FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 Western Beef, and Serota and/or Zurich. See Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 625 (2016) (citing Wallace v. Wallace, 216 N.Y. 28, 35, 109 N.E. 872 [1915], Hurlburt v. Hurlburt, 128 N.Y. 420, 424, 28 N.E. 651 [1891]). Rather, Zurich seeks documents and communications between the Brown Law Firm and Western Beef, even if those documents and communications did not involve Serota or Zurich in any way. Also lacking is any allegation that Western Beef and Serota consulted the Brown Law Firm jointly. Rather, all that is alleged is that the Brown Law Firm, for a time, had two clients. That is far too thin a reed on which to pierce Western Beef’s attorney-client privilege, and none of the authorities referenced by Zurich support such a sweeping invasion of privilege. 10. To the extent that Zurich argues that ithas a right to Western Beef’s privileged communications under a clause in the Zurich Policy, that argument is nonsensical. Western Beef is not a party to the Zurich Policy, and has no obligations whatsoever thereunder. Therefore, it cannot provide any rights to Zurich vis-à-vis Western Beef. 11. Zurich also argues that the “at issue” doctrine exempts the otherwise-privileged documents from protection. (Mot. at p. 3). Zurich is wrong because, as set forth above, nothing in the Brown Law Firm’s file could possibly entitle Zurich to recover in this action. Zurich’s insured, Serota, was found liable at trial in the Underlying Action because of Serota’s own negligence. That undisputed fact ends the analysis. 12. Moreover, “[a] party suing to enforce an alleged right to indemnification for the costs of defending and settling a prior lawsuit does not thereby, without more, place at issue the party’s privileged communications with counsel concerning the prior lawsuit . . . .” Deutsche Bank Trust Co. of Ams. V. Tri-Links Inv. Trust, 43 A.D.3d 56, 57 (1st Dep’t 2007). 4 4 of 6 FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 13. Further, the “at issue” doctrine only applies in limited circumstances in which a party puts its own privileged communications at issue. It does not apply when one party attempts to put another party’s privileged communications at issue—which is precisely what Zurich attempts here. Id. at 63 (“A party suing to enforce an alleged right to indemnification for the costs of defending and settling a prior lawsuit does not thereby, without more, place at issue the party’s privileged communications with counsel concerning the prior lawsuit . . . .”); see also Royal Indem. Co. v. Salomon Smith Barney, Inc., 2004 N.Y. Slip. Op. 50739(U), at *9 (Sup. Ct. N.Y. Cty. 2004). Western Beef has not undertaken any affirmative action that would put at issue its privileged communications with the Brown Law Firm. Zurich does not (and cannot) reference any authority that would support application of the “at issue” doctrine under these circumstances. Zurich provides nothing whatsoever to support its bald speculations that the Brown Law Firm’s file is “likely” to have information about Western Beef’s purported “decision to pay for Serota’s defense costs,” or Western Beef’s alleged “control of Serota’s defense.” (Mot. at p. 21). These vague hypotheses are woefully insufficient to support a wholesale invasion of Western Beef’s privilege. 14. At the very minimum, if the Court is not inclined to deny Zurich’s motion at this stage (which it should), it is respectfully submitted that the Court should conduct an in camera review of the Brown Law Firm’s file to determine: (i) whether they truly have any bearing on any legitimate claim or defense in this action; and, ifso, (ii) whether any exception to the sacred protection of the attorney-client privilege is applicable to any document within the file. A wholesale production of the Brown Law Firm’s “complete file” is unsupported by the facts, the law, or the equities. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 02/22/2019 09:45 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 WHEREFORE, it is respectfully requested that the Court deny Zurich’s motion in its entirety, and grant to Western Beef such other and further relief as the Court deems just and proper. DATED: Brooklyn, New York February 22, 2019 /s/ Justin T. Kelton Justin T. Kelton 6 6 of 6