All in 1 Spot with Theratalk, SLP, PT, OT, Psychology, PLLC v Noor Staffing Group, LLC 2024 NY Slip Op 31160(U) April 5, 2024 Supreme Court, New York County Docket Number: Index No. 652227/2019 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
ALL IN 1 SPOT WITH THERATALK, SLP, PT, OT, INDEX NO. 652227/2019 PSYCHOLOGY, PLLC, IRENE CHRISTOFOROU- GIOULES, MARIA PANAYIOTOU-MAMOUNAS MOTION DATE 12/15/2023 Plaintiffs, MOTION SEQ. NO. 005 - V -
NOOR STAFFING GROUP, LLC, HABIB NOOR, JACOB INTERIM DECISION+ ELETTO, ORDER ON MOTION Defendants.
----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 005) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146,147,148,149,150,151,152,153,154,155,156,157,158,159,160,161 were read on this motion to COMPEL DISCOVERY OR IN CAMERA REVIEW
Plaintiffs All in 1 SPOT with TheraTalk, SLP, PT, OT, Psychology, PLLC's, Irene
Christoforou-Gioules' ("Gioules"), and Maria Panayiotou-Mamounas' ("Mamounas")
(collectively the "All in 1 Parties") renewed motion to compel or, in the alternative, for an in
camera review, of documents withheld on the basis of the attorney-client privilege by
Defendants Noor Staffing Group, LLC ("Noor Staffing"), Habib Noor and Jacob Eletto (together
the "NSG Parties") is granted in part to the extent that the parties shall collectively submit a
representative sample of the documents for an in camera review.
A. Background
Gioules and Mamounas are the principals of All in 1 SPOT. In 2016, Gioules and
Mamounas entered into an employment agreement with Noor Staffing that purportedly permitted
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 1 of 5 Motion No. 005
1 of 5 [* 1] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
them to simultaneously operate All in 1 SPOT. In 2017, All in 1 SPOT and Noor Staffing were
both awarded contracts by the New York City Department of Education ("DOE").
The parties disagree about their respective rights to service the DOE contracts and have
brought claims against each other. In 2018, Noor Staffing commenced an action against Gioules
and Mamounas for breach of the employment agreement under Index No. 651459/2018 (the
"2018 Action"). The All in 1 Parties subsequently filed this action against the NSG Parties,
asserting breach of contract and employment related claims.
The All in 1 Parties move in both actions to compel production of documents,
specifically emails, involving two attorneys, John Scully ("Scully") and Robert Shaw ("Shaw").
Mr. Scully served as Noor Staffing's human resources director at the time the employment
agreement was entered and registered as Noor Staffing's in-house counsel in October 2017. Mr.
Shaw served as Noor Staffing's outside counsel and was involved in drafting the employment
agreement as well as in the business negotiations at issue in these cases.
The All in 1 Parties' first motion to compel was denied without prejudice for failure to
comply with the Commercial Division Rules (All in 1 Spot with Theratalk v Noor Staffing
Group, LLC, 2022 N.Y. Slip Op. 33862[U], [N.Y. Sup Ct, New York County 2022] [the "Prior
Order"]). In an effort to avoid further motion practice, the Prior Order included guidance as to
what aspects of the motion were likely to be granted, if properly filed (id).
Specifically, the Court indicated that the NSG Parties "should produce all
communications predating October 2017 that were withheld by the NSG parties based on
Scully's participation," "provide a more detailed privilege log," and "produce documents
responsive to Requests 12 and 13" (id.). The Prior Order provides that "[o]nce NSG has
produced a more detailed privilege log, and produced redacted documents (if any), the parties
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 2 of 5 Motion No. 005
2 of 5 [* 2] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
should meet and confer in good faith. If disputes still remain, Plaintiffs may move to compel and
Defendants should provide the disputed documents to the Court for in-camera review."
Following the issuance of the Prior Order, the parties conferred and NSG Parties
supplemented their document production and served a Third Revised Privilege Log. The
Privilege Log references 463 documents that appear to include more than 4,000 pages.
The parties were unable to resolve their differences and submitted a joint Rule 14 letter
(NYSCEF 112). Despite numerous conferences with the Court's Principal Law Clerk, the
parties could not agree on the scope of an in camera review. While the All in 1 Parties
represented that a limited in camera review would be sufficient to address the privilege issues,
the NSG Parties "continue to take the position that in camera review is unnecessary and
inappropriate here" (NYSCEF 146). NSG Parties provided, and offered to continue to provide,
clarifications as to specific documents (NYSCEF 157).
B. Discussion
While New York courts generally favor open and liberal discovery, "CPLR 4503(a)
states that a privilege exists for confidential communications made between attorney and client
in the course of professional employment, and CPLR 3101 (b) vests privileged matter with
absolute immunity" (Spectrum Sys. Int'l Corp. v Chem. Bank, 78 NY2d 371, 377 [1991]). The
burden of establishing that the attorney-client privilege applies is on the party asserting it (id.).
"The attorney-client privilege shields from disclosure any confidential communications
between an attorney and his or her client made for the purpose of obtaining or facilitating legal
advice in the course of a professional relationship" (Ambac Assur. Corp. v Countrywide Home
Loans, Inc., 27 NY3d 616, 623 [2016]). In order for the privilege to apply, "the communication
from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 3 of 5 Motion No. 005
3 of 5 [* 3] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
or services, in the course of a professional relationship"' (Spectrum Sys. Intl. Corp. at 377-378
quoting Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d 588, 593 [1989]).
"Communications do not automatically obtain privilege status merely because they were
created or communicated by an attorney ... Only if the communications are transmitted in the
course of professional employment, that convey a lawyer's assessment of the client's legal
position, does the privilege apply" (Brawer v Lepor, 75 Misc 3d 1229(A) [Sup Ct New York
County 2022] citing id.).
Free access — add to your briefcase to read the full text and ask questions with AI
All in 1 Spot with Theratalk, SLP, PT, OT, Psychology, PLLC v Noor Staffing Group, LLC 2024 NY Slip Op 31160(U) April 5, 2024 Supreme Court, New York County Docket Number: Index No. 652227/2019 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
ALL IN 1 SPOT WITH THERATALK, SLP, PT, OT, INDEX NO. 652227/2019 PSYCHOLOGY, PLLC, IRENE CHRISTOFOROU- GIOULES, MARIA PANAYIOTOU-MAMOUNAS MOTION DATE 12/15/2023 Plaintiffs, MOTION SEQ. NO. 005 - V -
NOOR STAFFING GROUP, LLC, HABIB NOOR, JACOB INTERIM DECISION+ ELETTO, ORDER ON MOTION Defendants.
----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 005) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146,147,148,149,150,151,152,153,154,155,156,157,158,159,160,161 were read on this motion to COMPEL DISCOVERY OR IN CAMERA REVIEW
Plaintiffs All in 1 SPOT with TheraTalk, SLP, PT, OT, Psychology, PLLC's, Irene
Christoforou-Gioules' ("Gioules"), and Maria Panayiotou-Mamounas' ("Mamounas")
(collectively the "All in 1 Parties") renewed motion to compel or, in the alternative, for an in
camera review, of documents withheld on the basis of the attorney-client privilege by
Defendants Noor Staffing Group, LLC ("Noor Staffing"), Habib Noor and Jacob Eletto (together
the "NSG Parties") is granted in part to the extent that the parties shall collectively submit a
representative sample of the documents for an in camera review.
A. Background
Gioules and Mamounas are the principals of All in 1 SPOT. In 2016, Gioules and
Mamounas entered into an employment agreement with Noor Staffing that purportedly permitted
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 1 of 5 Motion No. 005
1 of 5 [* 1] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
them to simultaneously operate All in 1 SPOT. In 2017, All in 1 SPOT and Noor Staffing were
both awarded contracts by the New York City Department of Education ("DOE").
The parties disagree about their respective rights to service the DOE contracts and have
brought claims against each other. In 2018, Noor Staffing commenced an action against Gioules
and Mamounas for breach of the employment agreement under Index No. 651459/2018 (the
"2018 Action"). The All in 1 Parties subsequently filed this action against the NSG Parties,
asserting breach of contract and employment related claims.
The All in 1 Parties move in both actions to compel production of documents,
specifically emails, involving two attorneys, John Scully ("Scully") and Robert Shaw ("Shaw").
Mr. Scully served as Noor Staffing's human resources director at the time the employment
agreement was entered and registered as Noor Staffing's in-house counsel in October 2017. Mr.
Shaw served as Noor Staffing's outside counsel and was involved in drafting the employment
agreement as well as in the business negotiations at issue in these cases.
The All in 1 Parties' first motion to compel was denied without prejudice for failure to
comply with the Commercial Division Rules (All in 1 Spot with Theratalk v Noor Staffing
Group, LLC, 2022 N.Y. Slip Op. 33862[U], [N.Y. Sup Ct, New York County 2022] [the "Prior
Order"]). In an effort to avoid further motion practice, the Prior Order included guidance as to
what aspects of the motion were likely to be granted, if properly filed (id).
Specifically, the Court indicated that the NSG Parties "should produce all
communications predating October 2017 that were withheld by the NSG parties based on
Scully's participation," "provide a more detailed privilege log," and "produce documents
responsive to Requests 12 and 13" (id.). The Prior Order provides that "[o]nce NSG has
produced a more detailed privilege log, and produced redacted documents (if any), the parties
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 2 of 5 Motion No. 005
2 of 5 [* 2] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
should meet and confer in good faith. If disputes still remain, Plaintiffs may move to compel and
Defendants should provide the disputed documents to the Court for in-camera review."
Following the issuance of the Prior Order, the parties conferred and NSG Parties
supplemented their document production and served a Third Revised Privilege Log. The
Privilege Log references 463 documents that appear to include more than 4,000 pages.
The parties were unable to resolve their differences and submitted a joint Rule 14 letter
(NYSCEF 112). Despite numerous conferences with the Court's Principal Law Clerk, the
parties could not agree on the scope of an in camera review. While the All in 1 Parties
represented that a limited in camera review would be sufficient to address the privilege issues,
the NSG Parties "continue to take the position that in camera review is unnecessary and
inappropriate here" (NYSCEF 146). NSG Parties provided, and offered to continue to provide,
clarifications as to specific documents (NYSCEF 157).
B. Discussion
While New York courts generally favor open and liberal discovery, "CPLR 4503(a)
states that a privilege exists for confidential communications made between attorney and client
in the course of professional employment, and CPLR 3101 (b) vests privileged matter with
absolute immunity" (Spectrum Sys. Int'l Corp. v Chem. Bank, 78 NY2d 371, 377 [1991]). The
burden of establishing that the attorney-client privilege applies is on the party asserting it (id.).
"The attorney-client privilege shields from disclosure any confidential communications
between an attorney and his or her client made for the purpose of obtaining or facilitating legal
advice in the course of a professional relationship" (Ambac Assur. Corp. v Countrywide Home
Loans, Inc., 27 NY3d 616, 623 [2016]). In order for the privilege to apply, "the communication
from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 3 of 5 Motion No. 005
3 of 5 [* 3] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04/05/2024
or services, in the course of a professional relationship"' (Spectrum Sys. Intl. Corp. at 377-378
quoting Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d 588, 593 [1989]).
"Communications do not automatically obtain privilege status merely because they were
created or communicated by an attorney ... Only if the communications are transmitted in the
course of professional employment, that convey a lawyer's assessment of the client's legal
position, does the privilege apply" (Brawer v Lepor, 75 Misc 3d 1229(A) [Sup Ct New York
County 2022] citing id.). The privilege cannot be used to shield "underlying facts" (Spectrum
Sys. Intl. Corp. at 377 citing Upjohn Co. v United States, 449 US 383, 395-396 [1981]).
"[W]hether a particular document is or is not a protected is necessarily a fact-specific
determination ... often requiring in camera review" (Spectrum Sys. Intl. Corp., 78 NY2d at 378).
The assessment can be particularly challenging when the relevant attorneys have "mixed
business-legal responsibility." (Rossi, 73 NY2d at 592-593).
The Court cannot discern from the papers alone whether the withheld documents are
privileged, as both Mr. Scully and Mr. Shaw appear to have provided both business and legal
advice. In those circumstances, the Court has the discretion to direct an in camera review to
assess claims of privilege (Arkin Kaplan Rice LLP v Kaplan, 107 AD3d 502, 502 [1st Dept
2013]). Given the volume of documents involved and the common issues raised, the Court
directs that the All in One Parties and NSG Parties each select up to 25 documents for a total of
up to 50 documents for in camera review.
Accordingly, it is
ORDERED that the All in 1 Parties' motion is GRANTED IN PART and the Court will
conduct an in camera review of a representative sample of the withheld documents; it is further
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 4 of 5 Motion No. 005
4 of 5 [* 4] INDEX NO. 652227/2019 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 04 / 05 / 2024
ORDERED that within fourteen (14) days of this order that the parties file a joint letter
identifying the documents selected for an in camera review and that NSG Parties submit the
sample to the Court via USB flash drive delivered to the Part 3 Clerk (Courtroom 208) or via
email (SFC-Part3@nycourts.gov).
This constitutes the decision and order of the Court.
4/5/2024 DATE JOEL M. COHEN, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
652227/2019 ALL IN 1 SPOT WITH vs. NOOR STAFFING GROUP, LLC Page 5 of 5 Motion No. 005
5 of 5 [* 5]