Opinion
2014-753/B
05-05-2021
Proceeding by Davidson, Sochor, Ragsdale & Cohen to Fix and Determine Compensation per SCPA § 2110 for work performed for the estate of CLIFFORD J. HART, Deceased.
Robert J. Bergson, Esq. Abrams Garfield Margolis Bergson, LLP Attorneys for Petitioner John Walsh, Esq. Walsh & Walsh, Esqs. Attorneys for Petitioner Martin Wm. Goldman, Esq. Attorney for Respondent and Counter claimants
Unpublished Opinion
Robert J. Bergson, Esq.
Abrams Garfield Margolis Bergson, LLP
Attorneys for Petitioner
John Walsh, Esq.
Walsh & Walsh, Esqs.
Attorneys for Petitioner
Martin Wm. Goldman, Esq.
Attorney for Respondent and Counter claimants
DECISION AND ORDER
HON. KEITH J. CORNELL, SURROGATE
Before the Court is the renewed motion by Petitioner/Counterclaim Respondent Davidson, Sochor, Ragsdale & Cohen ("Petitioner") to strike the Amended Answer with Counterclaims of the Estate of Clifford Hart, Alex Hart, Jake Hart and Naomi Hart ("Respondents"), which motion was held in abeyance in the Court's Decision and Order of December 22, 2020. The following papers were read in connection with the motion:
1. Notice of Motion to Renew/ Affirmation of Good Faith of Robert J. Bergson, Esq./ Affirmation in Support of Robert J. Bergson, Esq., with Exhibits A-Z/ Memorandum of Law, all dated March 2, 2021;
2. Affirmation in Opposition of Martin WM. Goldman, Esq., with Exhibits 1-6, dated March 16, 2021;
3. Reply Affirmation in Further Support of Robert J. Bergson, Esq., with Exhibit A, dated March 19, 2021.
Background
On June 10, 2013, Clifford J. Hart and his girlfriend, Meryl Brown, purchased a condo together. Mr. Hart was terminally ill at the time of the purchase and it was a near certainty that he would predecease Ms. Brown. After consultation with Mr. Davidson, his long-time lawyer and a member of Petitioner, Mr. Hart and Ms. Brown took title as tenants-in-common, rather than as joint tenants with rights of survivorship. Approximately six months later, Mr. Hart executed new estate planning instruments that had the effect of leaving his half of the condo to Ms. Brown upon his death. These instruments were all drafted by Mr. Davidson.
Mr. Hart died on November 14, 2014. Petitioner alleges that Jake Hart, Decedent's son, contacted Petitioner within days of Decedent's death and asked Mr. Davidson to begin probate of the Will. According to submitted time records, Petitioner began performing work on behalf of the Estate on November 24, 2014. Mr. Davidson alleges that he was directed by Decedent's sons, Jake and Alex, to openly discuss their late father's estate with Mr. Goldman, an attorney who is Jake's and Alex's godfather. Mr. Davidson alleges Mr. Goldman reached out to him on November 25, 2014. It is not disputed that Mr. Davidson and Mr. Goldman communicated frequently in December, January, and February about the Estate.
Petitioner claims that Mr. Goldman described himself as an advisor to Jake and Alex Hart, and specifically denied that he represented the Estate. Petitioner alleges that Mr. Goldman directed Mr. Davidson to take certain actions on behalf of the Estate. Letters of Administration c.t.a. issued to Jake Hart on January 28, 2015 and the Will was admitted to probate by decree on the same date.Petitioner apparently provided Jake with a retainer agreement for him to sign in his capacity as Administrator, but Jake did not sign or return it. Allegedly, in late February, Mr. Davidson was informed by Mr. Goldman that he had instructed Jake not to pay Petitioner's invoices.
Ten days prior to his death, Decedent executed a Will that changed the named executor from his niece, with his sister as nominated successor, to Wells Fargo as the only named executor. In December 2014, Wells Fargo declined the designation, and Decedent's son Jake petitioned for letters of administration c.t.a.
On June 1, 2015, the instant proceeding was initiated by Petitioner seeking the fixing and determination of fees pursuant to SCPA § 2110. Petitioner sought fees of $26,532.50 and disbursements of $984.50 for services rendered from November 24, 2014 through February 26, 2015. On October 26, 2015, the Estate, Jake Hart, Alex Hart and Naomi Hart filed an answer with affirmative defenses and counterclaims of malpractice in response to the fee petition. The Estate and the three individuals are represented by Mr. Goldman.
Respondents allege in their counterclaim that Petitioner had been professionally negligent in its representation of Decedent. Respondents allege that Petitioner concealed its negligence and malpractice from Respondents in an attempt to preclude them from pursuing their remedies. Respondents claim that Petitioner failed to properly prepare a MetLife Change of Beneficiary Form, and failed to inform Respondents of an option date, causing the Respondents to suffer monetary damages. Respondents allege that Petitioner failed to enforce their rights to 50% of the condo and the personal property therein. Finally, Respondents allege that Petitioner committed legal malpractice by representing both Decedent and Ms. Brown in the drafting of their testamentary instruments when they had patent conflicting interests.
Petitioner served its First Notice for Discovery and Inspection ("NDI") and First Set of Interrogatories on May 5, 2016. The First NDI contained 39 distinct document requests, and the First Interrogatories contained 30 requests for information. Respondents served their First NDI on May 10, 2016. Respondents' First NDI contained two requests. Request No. 1 asked Petitioner to "produce . . . every document and communication in your possession . . . relating in any way to Decedent's property and/or business interests, will and/or estate planning ... by, between and/or among any or all of the following" list of 34 individuals and entities. Request No. 2 sought "Each . . . tangible item Petitioner intends to offer in evidence during the trial, not previously provided pursuant to a prior request."
Petitioner responded to Respondents' document demand on July 1, 2016. In addition to three pages of general objections, Petitioner provided 4803 Bates stamped pages of documentary evidence in response to the Request No. 1. For Request No. 2, Petitioner replied that it had not yet determined which documents it intended to offer into trial.
On September 27, 2016, Respondents replied to Petitioner's document demand. Respondents also provided three pages of general objections. Respondents responded to the first of the thirty nine specific requests with the following paragraph:
Subject to and without waiving the General Objections and Reservations of Rights above, Respondents will produce non-privileged documents reasonably responsive to this Request within its custody, possession, or control to the extent such documents exist and can be identified after a reasonable search. See Bates No. P00001-P04803 produced with this response.
For requests 2 through 39, Respondents wrote "same as Response No. 1." Other than citing to Petitioner's own document production, Respondents provided no documents. Respondents did not respond to the interrogatories.
On December 20, 2017, Petitioner served its Second NDI and Second Set of Interrogatories. Respondents did not respond to these discovery requests. No other discovery was sought or exchanged on this subfile until Respondents' counsel contacted this Court in the fall of 2019. After consultation with the Court, the parties agreed to a discovery and deposition schedule in February 2020. A date for service of additional demands was set, as were dates for compliance with discovery demands and completion of depositions. Respondents served their Second NDI on February 26, 2020. Unfortunately, the COVID pandemic further delayed the proceedings, and the stipulated dates were adjourned.
The pause was caused by the focus on the active litigation on other subfiles in this matter.
On July 13, 2020, Petitioner served its response to Respondents' Second NDI. No new documents were produced. Instead, in response to each of the 31 requests, Petitioner replied that it had already produced all documents in its possession that were responsive when it responded prior NDIs, such documents bearing Bates Nos. P00001-P04790. In response to Request 28, which sought documents that Petitioner intends to offer into evidence, Petitioner replied that it had not yet determined which documents it would use, as discovery is ongoing.
In September and the October 2020, Petitioner and Respondents each filed a discovery motion and a cross-motion to the other party's motion. Amongst the relief requested by Petitioner was the striking of Respondents' answer and counterclaim as a sanction for failure to comply with discovery. In the decision of December 22, 2020, the Court, inter alia, held the motion to strike the answer in abeyance, pending Respondents' compliance with the outstanding discovery requests. Petitioner was expressly granted leave to renew the request.
On February 5, 2021, Respondents served replies to Petitioner's three outstanding discovery requests: the Second NDI and both sets of interrogatories. Many of Respondents' responses contained references to other answers, which themselves referred to other answers. For example, in response to the first request in the Second NDI, which sought "All Documents concerning Communications between Decedent and Petitioner concerning the MetLife Claim," Respondents wrote:
Subject to and without waiving the General Objections and Reservation of Rights above, Counterclaimants state that they have yet to determine the Documents that they intend to offer in evidence at any trial of this action, but expressly reserve the right to offer into evidence any document produced by any party to this action or the related action commenced by Meryl Brown, bearing file No. 2014-753 C/D/E; and subject to, and without waiving the foregoing objection, see response no. 4 to Petitioner's First Set of Interrogatories.
Interrogatory No. 4 of Petitioner's First Set of Interrogatories asked Respondents to "set forth in detail" every action or omission by Petitioner that Respondents/Counterclaimants contend caused them injury. The response to that interrogatory referred Petitioner to "response no. 3 above" and directed Petitioner to litigation documents, including the affidavit of Mr. Davidson, the Respondents' counterclaim, the record on appeal, and "Petitioner's and Counterclaimants' responses to Petitioner's and Counterclaimants' Notices for Discovery and Inspection." The response no. 3, which was referred to in response no. 4, contains the claim that Respondents' have suffered $400,000 in damages consisting of legal fees incurred to remedy Petitioner's malpractice.
In response to the second request in the Second NDI, which sought documents between Decedent and Counterclaimants related to the MetLife Claim, Respondents objected that the request sought to invade work product privilege and referred Petitioner to "see response no. 1, above." Requests Nos. 3-8 were answered with "see response no. 2, above." Request No. 9, which sought documents "evidencing the allegation that Petitioner voluntarily discontinued, without good cause, addressing and/or seeking to redress the MetLife Claim," was answered with "see response no. 2, above," and "see responses no 12. and no. 15 to Petitioner's First Set of interrogatories." Response No. 12 in the interrogatories starts with "see response no. 11, above," which response itself starts with the instruction to "see response no. 8 above." In the end, Petitioner received 211 pages from Respondents, consisting of the billing records of Mr. Viola (their counsel on the other subfiles) and the billing records from an accountant.
On February 9, 2021, Petitioner sent a deficiency letter to Respondents pursuant to 22 NYCRR § 202.7. Petitioner's counsel, Mr. Bergman, and Respondents' counsel, Mr. Goldman, corresponded by mail, telephone and email. Petitioner pointed out that Mr. Viola's time records referenced "emails and documents to and from MetLife" in Respondents' possession that had not been produced. On February 14, Respondents' agreed to search Mr. Viola's file for responsive, non-privileged documents. On February 22, Respondents produced another 193 pages. This motion followed.
The Parties' Claims
On March 3, 2021, Petitioner filed the instant motion renewing its request to have the Answer and Counterclaims struck per CPLR § 3126(3) as remedy for Respondents' failure to comply with the discovery demands. In the alternative, Petitioner seeks an order compelling compliance per CPLR § 3124.
Petitioner argues that Respondents have a history of failing to respond to discovery demands, pointing out that the first set of discovery demands were served in May 2016, a second set were served in December 2017, and the responses at issue were received on February 5, 2021. Petitioner argues that Respondents failed to provide any documents to 15 out of 16 requests in the Second NDI. Petitioner points out that Respondents premise their failure to turn over documents on their claim that they have not determined what documents they will introduce at trial, which excuse Petitioner argues is not a legitimate ground for withholding documents. Petitioner alleges that Respondents never actually searched their records for responsive documents. Petitioner argues that Respondents' failure to comply with discovery after being directed to do so by the Court per the December 22, 2020 decision and order constitutes willful and contumacious conduct that warrants striking of the Answer with Counterclaims pursuant to CPLR § 3126. Alternatively, Petitioner seeks orders pursuant to CPLR § 3124 compelling compliance with discovery and requiring Mr. Goldman and Respondents to search and produce responsive documents, and to the degree any documents are withheld based on an assertion of attorney-client privilege or work product doctrine, that Respondents provide a privilege log.
Respondents argue that they have cooperated completely with the orders of this Court. Respondents argue that their citation to Petitioner's own document production as their response to Petitioner's NDIs is appropriate because Petitioner's original file is still in Petitioner's possession (due to a claimed retaining lien). Respondents further argue that any other documents in their possession or Mr. Goldman's possession are protected by the attorney client privilege or work product doctrine and, therefore, are not subject to discovery. Respondents make the perplexing argument that their answers to NDI and interrogatory responses that directed Petitioner to other responses were appropriate because, per CPLR § 3131, interrogatories may require the target to provide copies of papers or documents. Respondents further argue that their circular references are appropriate because Petitioner responded to 32 of 33 requests in Respondents' Second NDI by directing Respondents to Petitioner's original document production. Respondents point out that Petitioner answered one of the requests in Respondents' Second NDI by stating that Petitioner had not determined which documents it would offer into evidence. On that basis, Respondents' argue that their similar response to requests in Petitioner's NDIs is completely reasonable. Respondents point out that their attempts to schedule depositions have not been successful. Respondents also argue that Petitioner has failed to engage in good faith efforts to resolve the discovery disputes.
In reply, Petitioner argues that Respondents failure to respond to discovery requests is contumacious and willful. Petitioner argues that Respondents admit that they failed to even search their files for responsive documents. Petitioner points out that Respondents have failed to produce a privilege log to justify withholding responsive documents. Finally, Petitioner argues that it cannot schedule depositions until the documentary discovery is complete.
Discussion
The disclosure provisions of the CPLR are to be liberally interpreted and applied. See Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406 (1968) ("The test [for disclosure] is one of usefulness and reason."). Discovery should be allowed if the information sought "is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable." Id. at 406-07 (internal quotations omitted). To that end, CPLR § 3101(a) directs that parties are entitled to "full disclosure of all matter material and necessary in the prosecution or defense of an action." The "statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise." Spectrum Svs. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 376 (1991).
Public policy favors the resolution of cases on the merits. See 1523 Real Estate. Inc. v. E. Atl. Props.. LLC. 41 A.D.3d 567 (2d Dept 2007). However, when a party fails to comply with court ordered discovery and frustrates the liberal disclosure rules of the CPLR, the court may strike a pleading as a sanction. See CPLR § 3126(3); Stone v. Zinoukhova, 119 A.D.3d 928 (2d Dept. 2014) (affirming striking of answer). Before a court imposes "the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious." Tung Wa Ma v. NY City Tr. Auth., 113 A.D.3d 839, 839 (2d Dept. 2014) (reversing preclusion).
"Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply." Duncan v. Hebb, 47 A.D.3d 871, 871 (2d Dept. 2008) (internal quotations omitted) (affirming striking of answer when defendant failed to appear for deposition). See Rock City Sound. Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685 (2d Dept. 2011) (affirming striking answer when defendant repeatedly failed to submit files requested by plaintiff); Devito v. J & J Towing, Inc., 17 A.D.3d 624 (2d Dept. 2005) (affirming striking of complaint when plaintiff failed to comply with three court orders for discovery). In particular, unjustified delay in the face of repeated, specific requests is strong evidence of a deliberate lack of cooperation with discovery. See Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d 819 (2d Dept. 2019) (affirming dismissal of complaint per CPLR § 3126); Moog v. City of NY, 30 A.D.3d 490 (2d Dept. 2006) (reversing denial of motion to strike answer, substituting order precluding introduction of evidence when defendant possessed relevant information that was not produced until more than three years after it was requested); Mingo v. Manhattan & Bronx Surface Tr. Operating Auth.. 302 A.D.2d 274, 274 (1st Dept. 2003) (affirming preclusion when defendant withheld document until time of jury selection, despite "plaintiffs long-standing specific demands for such [document], and in violation of a court order pursuant to which discovery was to have been completed many months before"); Cano v. BLF Holding Corp.. 243 A.D.2d 390, 390 (1st Dept. 1997) ("Defendants' affidavits fully demonstrated plaintiffs' dilatory conduct and failure to comply with disclosure requests, and, given that history and the court's involvement in the process, which included ample opportunities for plaintiffs' compliance with the court-ordered stipulation that was to govern disclosure, the court could infer that plaintiffs' failure to disclose was willful and contumacious."); Donovan v. City of New York, 239 A.D.2d 461 (2d Dept. 1997) (reversing denial of motion to preclude based on year-long noncompliance with disclosure demands, preliminary conference order, and two stipulations).
Here, Respondents failed to respond to discovery for extended periods of time. When they finally provided responses, those responses were woefully inadequate and purposefully obtuse, and the excuses provided by Respondents for their failure to turn over documents are nonsensical. In response to Petitioner's First NDI, Respondents directed Petitioner to Petitioner's own documents. In response to the Second NDI, Respondents took Petitioner on a wild goose chase through the NDI and two interrogatory responses that led to dead ends which provided no responsive documents or statements. Notably, in the responses to the two NDIs and two sets of interrogatories, Respondents never state that they do not have responsive documents. Instead, Respondents variously state that they "will provide" documents (first NDI) and then claim a blanket attorney-client and/or work product privilege for whatever documents are in their possession. Respondents have thwarted the liberal discovery rules and ignored the Court's previously established discovery deadline and orders. But with the hope that matters can be determined on their merits, rather than on default, the Court extends Respondents one final opportunity to properly reply to Petitioner's demands. Respondents have 14 days from the date of this Decision and Order to turn over responsive documents or face preclusion.
To the degree that Respondents allege that a portion of the responsive documents sought by Petitioner are protected by the attorney-client or work product privilege, the burden of establishing a right to protection is on the party asserting it. See Forman v. Henkin, 30 N.Y.3d 656, 662 (2018). Such burden is met by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material is covered by the privilege. See CPLR § 3122(b); Cioffi v. S. M. Foods. Inc., 142 A.D.3d 520 (2d Dept. 2016). Here, Respondents failed to provide the required privilege log, leaving Petitioner without any information about the number, types or dates of the documents that exist and whether they may be subject to a privilege protecting disclosure. Because it is impossible to assess the validity of Respondents' claims of privilege without a privilege log, Respondents are directed to produce a privilege log that lists every document that they have identified and are withholding, stating with specificity (1) the type of document; (2) the date of the document; (3) the parties to whom the document relates; and (4) the discovery request to which the document would be responsive. Respondents have 14 days from the date of this Order to provide Petitioner with the privilege log. Any documents that are not produced or logged by the 14 day deadline shall be precluded from being used by Respondents in their defense of the fee request or in prosecution of their malpractice counterclaim.
CPLR § 3126 permits imposition of a monetary sanction, including costs and counsel fees, for failure to properly engage in discovery. See Maxim, Inc. v. Feifer, 161 A.D.3d 551 (1st Dept. 2018); Lucas v. Stam. 147 A.D.3d 921 (2d Dept. 2017); Matter of Rogers (Bell), 2021 NY Slip Op. 50329(U) (Surr. Ct. Orange Co. 2021) (imposing $3500 as a sanction). Here, Respondents' repeated failure to properly respond to discovery demands has resulted in successive motions, wasting the time and money of Petitioner and the time of the Court. Therefore, Petitioner's attorney, Mr. Bergson, is directed to provide an affidavit of services for the time he (and his firm) spent briefing this motion and reply. Upon receipt of the affidavit of services, the Court shall impose a monetary sanction on Respondents.
ORDERED that the motion to strike the answer and counterclaim per § 3126 is DENIED without prejudice; and it is further
ORDERED that the motion to compel compliance per CPLR § 3124 is GRANTED; and it is further
ORDERED that Respondents will provide Bates Numbered copies of all responsive documents, with indication as to which of Petitioner's document requests each document applies, by 14 days from the date of this Order; and it is further
ORDERED that Respondents will provide a detailed privilege log describing every document that they have withheld on a claim of privilege by 14 days from the date of this Order; and it is further
ORDERED that any documents that are not produced or logged by the 14 day deadline shall be precluded from being used by Respondents in their defense of the fee request or in prosecution of their malpractice counterclaim; and it is further
ORDERED that Petitioner's attorney Mr. Bergson shall file an affidavit of services for the time spent preparing this motion and its reply so that the Court may impose a sanction on Respondents per CPLR § 3126.