Sawyer v. 1120 Fifth Ave. Corp.

2024 NY Slip Op 33719(U)

• Court: New York Supreme Court, New York County
• Decided: October 21, 2024
• Docket: Index No. 154090/2021
• Status: Unpublished

Opinion

Sawyer v 1120 Fifth Ave. Corp. 2024 NY Slip Op 33719(U) October 21, 2024 Supreme Court, New York County Docket Number: Index No. 154090/2021 Judge: Paul A. Goetz 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. [FILED: NEW YORK COUNTY CLERK 10/21/2024 11:28 AM] INDEX NO. 154090/2021 NYSCEF DOC. NO. 286 RECEIVED NYSCEF: 10/21/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 154090/2021 ELIZABETH SAWYER, MOTION DATE 05/20/2024 Plaintiff, MOTION SEQ. NO. 006 - V -

1120 FIFTH AVENUE CORPORATION, BOARD OF DIRECTORS OF 1120 FIFTH AVENUE CORPORATION, JOHN BREGLIO, KATHRYN BREGMAN, DAVID DECISION + ORDER ON CLOSSEY, ELLEN CONRAD, MICHAEL FELDBERG, LINDA GELFOND, STEPHEN GREENBERG, WILLIAM MOTION HAINES, MARY MORGAN, ROBERT ERNSTOFF,

Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 006) 214, 215,216,217, 218,219,220,221,222,223,224,225,226,227,228,229,230,231,232,233,234,235,236,237,238, 239,240,241,267,268,272,273,274,276,277,278,279,280,281,282,283 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS

Plaintiff initiated this shareholder derivative action against defendants 1120 Fifth Avenue

Corporation (the co-op), Board of Directors of 1120 Fifth Avenue Corporation (the board) and

individual members of the board, including Linda Stein (listed in the caption as Linda Gelfond).

Initially, defendants were only represented by the firm Kaufman Borgeest & Ryan LLP (KBR),

but at some point in the litigation, the board hired Rosenberg & Estis P.C. (R&E) to represent it

alongside KBR. Linda Stein remained only a client of KBR, however, some of the documents

she produced for the firm were shared with R&E as part of its representation of the board. Linda

Stein was later dismissed from the action. She and her husband, Stanley Stein ( collectively, the

Steins) were served with non-party subpoenas on April 5, 2024.

The Steins now move pursuant to CPLR § 2304 to quash the subpoenas on the grounds

that they seek irrelevant and/or privileged testimony and materials, are overly broad, and seek

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documents already in defendants' possession; or in the alternative, disqualifying R&E and

Dinsmore & Shohl LLP (D&S) 1 as counsel for defendants on the grounds that a conflict of

interest exists and that the Steins would be prejudiced by such representation. Specifically, the

Steins assert that (i) while Linda Stein was a named defendant, R&E falsely represented that it

served as her counsel and improperly acquired access to privileged documents she produced to

KBR; and (ii) an adversarial relationship was created between the Steins and R&E when the

Steins pursued a separate action against the board regarding flooding in their apartment.

Quash

"CPLR 3101 (a) broadly mandates full disclosure of all matter material and necessary in

the prosecution or defense of an action [and] [t]his provision is liberally interpreted in favor of

disclosure" (Melworm v Encompass Indem. Co., 112 AD3d 794, 795 [2d Dept 2013]). Further,

"[a]n application to quash a subpoena should be granted [o]nly where the futility of the process

to uncover anything legitimate is inevitable or obvious ... or where the information sought is

utterly irrelevant to any proper inquiry" (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]

[internal quotation marks removed]).

Here, the subpoenas are not "utterly irrelevant to any proper inquiry," however, they do

seek certain documents and communications that may be privileged or are irrelevant, and they

are overly broad in scope (NYSCEF Doc Nos 227-228 [demanding, e.g., "Documents and

Communications that You previously provided to Kaufman Relating to this Action" and

"Communications ... Relating to the Building, the Board, this Action and/or the SDNY

Action"]). Accordingly, the subpoena will not be quashed, but the Steins and defendants will be

directed to meet and confer in good faith to narrow the demands (Sky Coverage Inc. v Alwex Inc.,

1 The Steins assert that D&S, which also represents defendants in this action, must also be disqualified because one of its partners, Harris Davidson Esq., worked for R&E during the relevant period and was involved in this matter. 154090/2021 SAWYER, ELIZABETH vs.1120 FIFTH AVENUE CORPORATION ET AL Page 2 of 4 Motion No. 006

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2022 N.Y. Misc. LEXIS 37329 *1 [SC NY Co 2022] ["The motion to quash the subpoena is

denied on condition that the parties meet and confer with a view to agreeing on the precise

categories of documents that may be in [the non-party's] possession that are relevant to this

case"]).

Disqualify

A movant seeking disqualification of an opponent's counsel faces a heavy burden

(Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 146 AD3d 1, 13 [I8t Dept 2016]). A

party has a right to be represented by counsel of its choice, and any restrictions on that right

"must be carefully scrutinized" (Ullmann-Schneider v Lacher & Lovell-Taylor PC, 110 AD3d

469, 469-70 [1 st Dept 2013] [internal quotation marks omitted]). Courts should also examine

whether a motion to disqualify is made for tactical purposes, such as depriving an opponent of

quality representation (Solow v Grace & Co., 83 NY2d 303, 310 [1994]). The decision whether

to grant a motion to disqualify rests in the discretion of the motion court (Macy's Inc. v JC.

Penny Corp., Inc., 107 AD3d 616, 968 N.Y.S.2d 64 [1 st Dept 2013]).

Here, the Steins failed to meet this heavy burden, as they have not established that a prior

attorney-client relationship existed between them and R&E or D&S; "a subpoenaed non-party is

not in an adversarial relationship with the subpoena's issuer" (Martin v Daily News, L.P., 2010

NY Slip Op 31039[U], *5 [SC NY Co 2010]); defendants are not represented by R&E or D&S in

the separate litigation involving flooding in the Steins' apartment; and R&E already addressed

the Steins' "concern that documents which were produced only by Ms. Stein may have been

inadvertently available for [the] firm to review" (NYSCEF Doc No 239). Accordingly, the firms

will not be disqualified as counsel for defendants.

Based on the foregoing, it is

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ORDERED that the motion is denied; and it is further

ORDERED that the Steins and defendants are directed to meet and confer in a good faith

attempt to narrow the demands of the subpoenas within 10 days of entry of this order; and it is

further

ORDERED that within 10 days thereafter, defendants shall serve the revised subpoenas,

and the Steins shall produce non-privileged responsive documents within 30 days thereafter and

their depositions shall be taken within 30 days after the production.

10/21/2024 DATE PAUL A. GOETZ, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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