The 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.
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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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[FILED: NEW YORK COUNTY CLERK 10/21/2024 11:28 AM] INDEX NO. 154090/2021
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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.
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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.
202
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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