Opinion
Index No.: 650188/2007
05-18-2015
JAMES L. MELCHER, Plaintiff, v. GREENBERG TRAURIG LLP and LESLIE D. CORWIN, Defendants.
DECISION AND ORDER
Mot. Seq. Nos.: 010-011
O. PETER SHERWOOD, J.:
Plaintiff moves for summary judgment (motion sequence number 010). Defendants cross-move for summary judgment. Plaintiff also moves to compel defendants to take possession of certain evidence, specifically, a replica kitchen (motion sequence number 011).
I. BACKGROUND
This action was commenced on June 25, 2007, with a single cause of action pursuant to Judiciary Law Section 487, which provides:
"[a]n attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . , is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."Plaintiff James L. Melcher claims the defendants, Greenberg Traurig LLP (GT) and GT partner Leslie Corwin, deceived the court and the plaintiff in an earlier litigation. The defendants in this case represented defendants Apollo Medical Fund Management L.L.C. (Apollo) and Apollo principal Brandon Fradd in a suit brought by the plaintiff in 2003 (the Apollo Action).
The following background from the Apollo Action is taken from the published decision in Melcher v Apollo Medical Fund Mgmt. L.L.C. (105 AD3d 15 [1st Dept 2013]). Fradd and Melcher were partners in Apollo. The Apollo Operating Agreement set out how proceeds would be divided among the partners. That process was not followed. After an extended period during which he accepted the payments tendered to him, Melcher claimed he was being underpaid, and eventually initiated the Apollo Action. Fradd argued there had been an amendment to the Operating Agreement (the Amendment) which changed the distribution of proceeds formula. Melcher claimed there was no such amendment.
In December 2003, Fradd produced a copy of the Amendment to Melcher. The authenticity of the Amendment was extensively litigated in the Apollo Action, with Melcher claiming that the Amendment was fraudulently backdated. The First Department concluded "[d]eceit . . . was not conclusively demonstrated. Whether the destruction of evidence was intentional or merely negligent presents an issue for the trier of fact, and plaintiff failed to establish that without the evidence he would be unable to prove his case" (Melcher v Apollo Medical Fund Management L.L.C., 52 AD3d 244, 245 [1st Dept 2008]).
The Apollo Action defendants then decided not to use the Amendment. At trial, Fradd argued that since Melcher had not disputed the allocation of profits for an extended period, Melcher was now estopped from asserting a breach of contract claim. The jury decided there had been no amendment of the contract, but that "Melcher was estopped from asserting that Apollo Management had breached the operating agreement" (Melcher, 105 AD3d at 22).
After the trial, Melcher sought additional relief, including leave to renew his motion to strike defendants' answers for their deceit. The motion was denied. Melcher appealed. The First Department determined that striking defendants' answers was not the proper sanction, since that misconduct, if any, did not prejudice Melcher in bringing his case, and Melcher won at trial on the only issue to which the Amendment was relevant (id. at 24). The court added, however, that it was "troubled" by the allegations. It remanded the matter for an evidentiary hearing and possible monetary sanctions, to potentially include attorneys' and expert fees and disbursements (id. at 25). The First Department also set aside the verdict of equitable estoppel (id.). Subsequently, Justice Schweitzer issued a "Damages Judgment After Remand" granting Melcher $6,074,890 on the breach of contract claim, plus interest, for a total award of $6,487,984 (Melcher v Apollo Medical Fund Management L.L.C., Index No. 604047/2003, December 3, 2013, NYSCEF Doc. No. 725). The parties then settled and filed a stipulation of discontinuance with prejudice before the hearing on the allegations about the fabrication of evidence (Satisfaction of Judgment, Melcher v Apollo Medical Fund Management L.L.C., Index No. 604047/2003, January 27, 2014, NYSCEF Doc. No. 735; Stipulated Order of Discontinuance with Prejudice, Melcher v Apollo Medical Fund Management L.L.C., Index No. 604047/2003, January 27, 2014, NYSCEF Doc. No. 732). Justice Schweitzer "So Ordered" the stipulation of discontinuance on January 16, 2014.
During the pendency of the Apollo action and shortly before Melcher moved to strike defendants' pleadings, Melcher filed this action against GT and Corwin, claiming they were "guilty of any deceit or collusion, or consent[ed] to any deceit or collusion, with intent to deceive the court or any party [and so were] guilty of a misdemeanor [and should] forfeit[] treble damages" (Judiciary Law § 487 [McKinney]). Melcher claims the defendants participated in deceit or collusion with intent to deceive him and the court regarding the authenticity of the Amendment. Now, the parties cross-move for summary judgment.
II. FACTS
Plaintiff asserts acts of deceit in violation of Judiciary Law § 487 related to defendants' use and presentation of the Amendment in the Apollo Action. Fradd claimed, there, that Melcher was entitled to less compensation than provided by the Operating Agreement because that agreement had been amended, but told his counsel that "[i]t may be that [the amendment] was verbal, not written" (Fradd e-mail to Citardi dated December 14, 2003, attached as Plaintiff's Exhibit 2). After being told by his corporate counsel, Jack Governale, that his chances of surviving a motion for summary judgment based on only a verbal amendment were 50/50 (Governale email to Fradd dated December 15, 2013, attached as Plaintiff's Exhibit 5), Fradd produced a copy of the Amendment, signed only by Fradd (Fradd fax to Melcher dated December 18, 2003, attached as Plaintiff's Exhibit 7). Melcher's signature was not necessary, as Fradd held over 75% of the interest in Apollo.
On January 27, 2004, Melcher's counsel, Jeffrey Jannuzzo, requested that the original Amendment be produced for forensic testing of its authenticity (Jannuzzo letter to Corwin dated Jan. 27, 2004, Plaintiff's Exhibit 9). On February 1, Fradd informed Corwin that the original Agreement had been damaged-in a tea-making incident (Fradd e-mail to Corwin dated Feb. 1, 2004, Plaintiff's Exhibit 11). The first page was destroyed and the second page, with Fradd's signature, was singed (id.; Plaintiff's Exhibit 12). On February 2, 2004, Corwin was informed that no record of creating the Amendment was found in Governale's files, and that the Amendment lacked the standard footer used by Governale's firm (Corwin notes dated Feb. 2, 2004, Plaintiff's Exhibit 13). Nonetheless, an undamaged copy of the Amendment was attached to Fradd's February 13, 2004, affidavit, which was filed and submitted to the court in support of a motion to dismiss the Apollo Action (Plaintiff's Exhibit 27).
Lowenthal, Landau, Fischer & Bring P.C. was Fradd's counsel in 1998. Governale and Jim Beckwith worked there and represented Apollo. After Lowenthal closed, Beckwith retired and Governale moved to Katten Muchin Rosenman LLP. Many other lawyers from Lowenthal, and many case files, went to Wolf Block. Governale represented Apollo throughout and had the Apollo files with him at Katten Muchin.
III. DISCUSSION
A. This Claim was Brought and Abandoned in the Underlying Litigation
The parties dispute whether Melcher may pursue this claim in a separate action, or is limited to bringing it in the underlying Apollo Action. Defendants argue that this action is barred by New York's rule against claim splitting, citing Alliance Network LLC v Sidley Austin LLP, 43 Misc 3d 848 (Sup Ct, New York County 2014)("The First Department has held that a party's remedy for a violation of Section 487 stemming from an attorney's actions in a litigation 'lies exclusively in that lawsuit itself , . . . not a second plenary action'") quoting Yalkowsky v Century Apartments Assoc., 215 AD2d 214, 215 (1st Dept 1995). Melcher argues otherwise, relying on Amalfitano v Rosenberg, 12 NY3d 8 (2009) and Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 (2014)(allowing this litigation to proceed and reversing the First Department decision granting a motion to dismiss on statute of limitations grounds).
In Alliance Network, Justice Bransten noted that the plaintiffs were filing motions for contempt, seeking to enforce an allegedly breached stipulation and raising allegations of deceit, and so "should have sought their remedies in the cases in which the wrongdoing allegedly was committed" (987 NYS2d at 802). In reaching her decision, Justice Bransten relied on Yalkowsky, a case in which the plaintiff was seeking to collaterally attack an order of eviction issued by the Civil Court. In reaching its decision, the First Department explained that if the plaintiff's allegations were true, and the defendant attorney had made the false statements to the Civil Court, "plaintiff's remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action" (215 AD2d at 215). Justice Bransten also relied on Chibcha Restaurant Inc. v David A. Kaminsky & Assoc., P.C. (102 AD 3d 544 [1st Dept 2013]), and Seldon v Spinnell (95 AD3d 779 [1st Dept 2012]). The former case, like Yalkowsky, involved a collateral attack on a Civil Court Judgment. In the latter, the defendant was a party in the underlying action, rather than counsel, and Judiciary Law § 487 applies only to attorneys acting as such. It does not apply to parties in an action who also happen to be attorneys. Thus, none of the cases on which the decision in Alliance Network relies applies. Here, Melcher is not seeking to attack the judgment in the original action. He won that case.
The same can be said of Zimmerman v Kohn, No. 652 826/2013, 2014 WL 1490936 (Sup Ct, NY County, April 11, 2014), affd on other grounds, 125 AD 3d 413 (1st Dept 2015) where Justice Mendez also relied on Seldon. In Cooke & Zweibach v Vogel, 33 Misc 3d 1232 (A), 2011 NY Misc LEXIS 5774 (Sup Ct, NY County, December 2, 2011), Justice Rakower declined to dismiss a cause of action alleging violation of Judiciary Law § 487 where the claim asserted involved alleged deceits made by the lawyer in the pending action (see id. at *22).
Now, Melcher is seeking damages for injuries he allegedly suffered due to alleged deceits committed in the Apollo Action. He is not seeking to collaterally attack the judgment in the Apollo Action. His claim in this case is not barred (see Kurman v Schnapp, 73 AD3d 435 [1st Dept 2010]; Barrows v Alexander, 78 AD3d 1693 [4th Dept 2010] [recognizing Judiciary Law § 487 cause of action in Kurman "because the record in that case establishes that the defendant was acting in his capacity as an attorney when he engaged in the alleged deceitful conduct"]; Pomerance v McGrath, 124 AD3d 481, 485 [1st Dept 2015] ["not improper for plaintiff to bring a Judiciary Law § 487 claim in this action even though it is based on alleged deceit in a prior action"]; Chevron Corp. v Donziger, 871 F Supp 2d 229, 261 [SDNY 2012] [denying motion to dismiss subsequent Judiciary Law § 487 claim for damages]; and Dupree v Voorhees, 24 Misc 3d 396, 402 [Sup Ct, Suffolk County 2009] affd 68 AD 3d 807, 809 [2nd Dept 2009]).
Defendants also argue that Melcher has had ample opportunity to litigate this claim in the underlying case. Melcher was granted a hearing specifically on these allegations, but chose to settle the matter on confidential terms and stipulate before the hearing that the "action is discontinued with prejudice and on the merits [and] [a]ll litigation in this action, of any sort, is hereby concluded" (Stipulated Order of Discontinuance with Prejudice, Melcher v Apollo Medical Fund Mgmt. L.L.C., filed January 27, 2014, Index No. 604047/2003, NYSCEF Doc. No. 732). Therefore, argue defendants, this claim should be barred.
In a similarly positioned case, Zimmerman v Kohn (Index No. 652826/2013, 2014 WL 1490936 [Sup Ct, NY County, April 11, 2014]), the court determined that the plaintiff in an underlying action could not subsequently bring an action based on Judiciary Law § 487 against the underlying defendants' counsel when the plaintiff had raised the deceit allegations in that action and settled the matter before the evidentiary hearing. The underlying action was brought in the United States District Court for the Eastern District of New York against Poly-Prep Day School for the alleged cover-up of sexual abuse of students by a coach (id. at l)(the Poly-Prep Action). During the course of litigating the Poly-Prep Action, Zimmerman sought "sanctions for fraud committed on the Court" by the defendants' counsel (id.). Those issues were held in abeyance pending an evidentiary hearing (id.). The parties subsequently entered into a settlement agreement and stipulated to dismiss the action with prejudice (id.). In the Judiciary Law § 487 claim Zimmerman subsequently brought in New York State Supreme Court, the court noted that "[o]nce a claim for violation of Judiciary Law [Section] 487 is raised in another action, the remedy lies exclusively in that lawsuit regardless of whether the attorneys are parties to the action" (id. at 2). Upon review, the Appellate Division First Department affirmed but not on grounds of estoppel as the Supreme Court had found. Instead, the Appellate Division concluded that plaintiff had suffered no damages and affirmed on that basis (see Zimmerman, 125 AD3d at 414). The Appellate Division did not address the issue of estoppel.
Accordingly, there is no estoppel issue to be decided by this court. The claim has not been waived because Melcher specifically declined to release any claims against Corwin and GT in the Apollo Action settlement agreement (Reply Memo at 4, n 3; January 14, 2014 Settlement Agreement, Plaintiff's Exhibit 108).
B Melcher's Motion for Summary Judgment
1. Standard for Summary Judgment
The standards for summary judgment are well settled. Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 329 [1986]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidentiary proof in admissible form, which may include deposition transcripts and other proof annexed to an attorney's affirmation (see, Alvarez, supra; Olan v Farrell Lines, 64 NY2d 1092 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Once the initial showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see, Kaufman v Silver, 90 NY2d 204,208 [1997]). Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see, Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]), and summary judgment should be denied where there is any doubt as to the existence of a triable issue of fact (see, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]), bald, conclusory assertions or speculation and "a shadowy semblance of an issue" are insufficient to defeat a summary judgment motion (S.J. Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]; see, also Zuckerman, supra; and Ehrlich v American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 [1970]).
Lastly, "'[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010] quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]).
2. Analysis
Defendants state they believed the Amendment to be authentic while they were litigating the Apollo Action, and that they still do. While it is undisputed that the defendants presented the Amendment as authentic to Melcher and the court in the Apollo Action, it is not enough for the Agreement to be false, the defendants must have participated in the deceit with the intent to deceive the court or the plaintiff (see Judiciary Law § 487). As the central issue is whether the defendants believed the Amendment to be authentic, and plaintiff has presented no "smoking gun" evidence showing knowledge or a belief that the Amendment was fraudulent or that defendants acted with an intent to deceive, the determination of this claim hinges on what inferences may be drawn from the evidence.
a. Filing of the Undamaged Copy with the Motion to Dismiss
Plaintiff claims that defendants violated Judiciary Law § 487 by filing an undamaged copy of the Amendment with the motion to dismiss in the underlying action, rather than using a copy that reflected the Amendment's actual appearance at that time. Plaintiff argues that the decision of the First Department requires that summary judgment be granted on this point, as the First Department has already ruled that "Corwin's concealment from the court of information regarding the claimed incineration of the purported document upon which he based his client's motion to dismiss the Apollo Management complaint was actionable under [Section 487]" (Memo at 5, quoting Melcher, 102 AD3d at 500). Defendants argue that the dicta of the First Department does not require granting summary judgment here because the First Department's statement was based on the assumption, as it was decision on a motion to dismiss, that plaintiff's allegations, including those regarding defendants' intent, were all true (Opp Memo at 22, citing Melcher, 102 AD3d at 501).
It is undisputed that the Amendment was produced by Fradd after having told defendants that the agreement to amend the Operating Agreement may have been verbal (SMF ¶2). However, while plaintiff argues this is evidence the Amendment was conveniently falsified, defendants claim Fradd told them he discovered it had been misfiled (Response to SMF ¶2). It is undisputed that Melcher was not informed about the burning of the Amendment until Corwin produced the original Amendment approximately six weeks later, and that Corwin used an unblemished copy of the now-damaged Amendment in a motion to dismiss (Corwin Aff, ¶ 19). Corwin claims he had no intent to deceive anyone, and believed he did not have an obligation under the CPLR to reveal to the court that the document had been damaged (id.). Corwin states he believed the document to be genuine, after receiving a report to that effect from his expert (Corwin Aff, ¶ 12-13, 20; Aginsky 2004 Report, Defendants Exhibit 25). Finally, Corwin highlights that he did not conceal the damage, but provided the original Amendment to Melcher, several months before the motion to dismiss was decided (Opp. Memo at 22, nl6). As the two dissenting judges from the First Department stated that "defendants were under no legal obligation to disclose that it had been destroyed at that particular juncture," and so disagreed that the failure to disclose damage to the Amendment "was crucial information such that the failure to disclose violated Judiciary Law Section 487," the fact of the omission does not lead inexorably to the conclusion that deceit was intended, as required by the terms of Judiciary Law Section 487. Even though there was an omission, there remains an issue of fact as to the defendants' intent in failing to reveal that the Amendment had been damaged.
Melcher argues that there is compelling evidence Corwin knew the Amendment was fake: it was not included in any of the files from Wolf Block or Katten Muchin; it lacked the standard control number footer put on documents drafted by the firm; Wolf Block's time records do not reflect the preparation of the Amendment; the Amendment appeared "magically" when needed; and the story of the tea-making accident in which the Amendment was conveniently damaged is simply "preposterous" (Memo at 9-10). Corwin responds by affidavit stating his belief, both then and now, that the Amendment was genuine. Corwin explains that his belief was based on Melcher's course of conduct, which was consistent with the changes to the compensation set out by the Amendment, Fradd's sworn testimony that it was genuine, and the opinion of Dr. Aginsky, who stated that the signature on the document was at least eight months old and possibly more than two years old (Corwin Aff. at ¶ ¶ 22-23). Corwin claims he was not concerned by Governale's and Beckwith's inability to remember several years later having drafted a brief document, or its absence from their files, as the files were incomplete and unreliable in other respects as well (id. at ¶ ¶ 24-25). According to Corwin, Governale and Beckwith did not disclaim the Amendment, but merely were unable to confirm it (id. at ¶ 26). The GT associate who worked with Corwin submitted an affidavit stating that Governale never told her the Amendment was fake, but that Governale was uncertain where it came from (Associate Aff. at ¶ 3). In order for use of the Amendment to constitute a deception, Corwin would have had to believe it was fabricated. It is disputed whether it was forged, and there remains an issue of fact as to whether Corwin believed it to be authentic.
b. January 27, 2004 Statement that Corwin Confirmed Authenticity
In a letter to Corwin, dated January 27, 2004, Jannuzzo described a conversation with Corwin in which Corwin "had confirmed with Jack Governale, Esq. the authenticity of the Amendment" (Plaintiff's Exhibit 9). Plaintiffs claim this representation was a lie, as Corwin had not talked with either Jim Beckwith or Governale about the Amendment at that point (Memo at 8; Corwin letter to Beckwith dated Feb. 6, 2004, Plaintiff's Exhibit 20 [asking Beckwith to review the Amendment]). Corwin claims he made no such representation during the meeting with Jannuzzo. In any event, as defendants point out, the letter is inadmissible hearsay. Accordingly, there is an issue of disputed fact as to this claim.
c. Misuse of the Ink Expert's Opinion
Melcher claims the defendants violated Judiciary Law Section 487 by using an ink expert to test the Amendment and confirm the forgery could not be detected, allowing Fradd to safely swear that the Amendment was genuine (Memo at 11). These allegations assume defendants believed the Amendment to be fraudulent. As discussed above, this is a disputed fact.
d. False Representations about the Aginsky Report
Melcher claims defendants violated Judiciary Law Section 487 by presenting the ink expert's report as proof of the Amendment's authenticity, when Aginsky's testing technique could not tell if the document was actually old, or had been artificially aged by exposure to heat in the tea-making incident (Memo at 13-14). Melcher points to the omission in Aginsky's affidavit of a proposed statement that the Amendment had not been artificially aged (Draft Aginsky Aff, Plaintiff's Exhibit 67; Aginsky Aff, Plaintiff's Exhibit 68). The affidavit did, however, state that "I concluded that the writing ink used to make the signature in the name of Brandon Fradd on the questioned document is no longer aging. This indicates that the ink is at least 8 months old and may likewise be older than two years" (Aginsky Aff, ¶ 7). Aginsky also opined that an accurate test was possible, since the ink tested was from a part of the page not significantly affected by the tea-making incident (id. at ¶ ¶ 9-11). It is not unreasonable to use this evidence to advance an argument that the tests performed support the conclusion that the document was not artificially aged. Therefore, summary judgment must be denied on this point.
e. Misrepresentations that Law Firm Files Were Not Available
Melcher claims the defendants violated Judiciary Law Section 487 when they filed an affidavit by Fradd stating the that the law firm records which would authenticate the Amendment were unavailable because the law firm (then Lowenthal, Landau, Fischer & Bring, P.C.) no longer existed; Beckwith, who prepared documents for Apollo, had retired; and other attorneys having moved to Wolf Block (Fradd Aff, Plaintiff's Exhibit 33). Melcher argues the defendants were aware, when that affirmation and subsequent affirmations repeating the statement were filed, that Governale had taken the Apollo files to Katten Muchin, and that there was no support for the authenticity of the Amendment from Beckwith, Governale, or the case files held by Katten Muchin (Memo at 15).
Why the Amendment was not found in the files held at Katten Muchin is a question of fact. One possibility is that the Amendment was a forgery. Another is that documents were lost in transition. The files were not complete in all other respects. This fact supports the possibility that the Amendment could have been lost as well. The truth of Fradd's statement is also a question of fact. Viewing all of this evidence in a light most favorable to defendants and according them the benefit of every favorable inference (see Negri, supra), the motion for summary judgment must be denied because there are facts in dispute and conflicting inferences may be drawn from the evidence presented (see Ruiz, supra).
f. Inability to Reach Beckwith
Melcher claims summary judgment should be awarded on his claim that the defendants violated Judiciary Law Section 487 by filing affidavits from Fradd in the underlying action stating that Fradd and defendants were trying unsuccessfully to reach Beckwith about the drafting of the Amendment (Fradd Aff dated March 12, 2004, Plaintiff's Exhibit 33; Fradd Aff dated May 19, 2004, Plaintiff's Exhibit 36; Fradd Aff dated March 28, 2005, Plaintiff's Exhibit 37). Corwin also filed affirmations swearing to his inability to reach Beckwith (Corwin Aff dated Dec. 8, 2005, Plaintiff's Exhibit 42; Corwin Aff dated Jan. 13, 2006, Plaintiff's Exhibit 43). Melcher claims defendants intentionally misled the court, because GT's files show that Corwin and an associate had a conference call with Beckwith on February 5, 2004 (Notes dated Feb. 5, 2004, Plaintiff's Exhibit 19; Corwin letter to Beckwith dated Feb. 6, 2004, Plaintiff's Exhibit 20), and GT's records memorialize only one more attempt to communicate with Beckwith before 2006 (Feb 13, 2004 e-mail, Plaintiff's Exhibit 28). Plaintiff also argues that Beckwith was responsive, that he called GT the day he received a letter from the firm regarding the scheduling of his deposition (Corwin letter to Beckwith dated Feb. 6, 2006, Plaintiff's Exhibit 52; Associate's e-mail to Corwin dated Feb. 7, 2006, Plaintiffs Exhibit 53). Beckwith testified at deposition that he was willing to talk with the defendants about the Amendment, but he did not recall receiving any inquiries from them, other than that one phone call (Beckwith Dep. dated June 11, 2007, Plaintiff's Exhibit 57, at 34-37).
Plaintiff's claims are contradicted by the affidavits of Corwin and the GT associate, as well as by the documentary evidence Corwin cites. Corwin swears that the February 5, 2004 conference call was merely preliminary, to see if Beckwith was willing to look at documents and have a more substantive conversation later (Corwin Aff at ¶ 39). Corwin and the associate swear that they tried to contact Beckwith again, but he did not respond (id.; Associate Aff at ¶ 6). These assertions are supported by the associates's e-mail to Corwin on Feb 13, 2004, which noted "I called Beckwith and left a message . . . . He's avoiding us. I'll keep calling him" (Plaintiff's Exhibit 28). While Melcher claims Beckwith was responsive to any inquiries, a follow-up letter from Corwin (seeking a response regarding Beckwith's availability for a deposition) to Beckwith suggests otherwise (Corwin letter to Beckwith dated Feb. 6, 2006, Plaintiff's Exhibit 52), and Beckwith's memory at his deposition was far from perfect (Beckwith Dep. dated June 11, 2007, Plaintiff's Exhibit 57, at 34-37). There is an issue of fact as to whether the defendants were unable to reach Beckwith, or simply declined to reach out to him. Summary judgment cannot not be granted on this claim.
IV. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO ACCEPT PROFFER OF THE REPLICA KITCHEN
Plaintiff's arson expert in the Apollo Action created a replica of Fradd's kitchen in order to test whether the damage to the Amendment could have been done in the manner claimed. Plaintiff stored the replica kitchen, so that the defendants in this case could inspect it. Fradd no longer lives in the same apartment, so the original kitchen is no longer available for inspection. Plaintiff offered the replica kitchen to defendants, and has advised defendants that he intends to discard it if they do not take it. Defendants argues that plaintiff must preserve this evidence. Accordingly, plaintiff seeks an order instructing defendants to take the replica kitchen or waive the right to inspect it. He asserts that his obligation to produce pursuant to CPLR 3120 can be "satisfied by telling the party seeking the discovery where the materials are and providing a reasonable opportunity" to view them (Memo at 4, quoting Zegarelli v Hughes, 3 NY3d 64, 69 [2004]).
The parties dispute whether expert testimony regarding the feasability of Fradd's version of how the Amendment came to be damaged will be relevant at trial, and expert discovery has not yet begun. As Melcher has not shown any undue burden, the court directs that he preserve the replica kitchen at least until expert discovery is concluded.
Accordingly, it is hereby
ORDERED that defendants' cross-motion for summary judgment dismissing the complaint is DENIED; and it is further
ORDERED that plaintiff's motion for summary judgment is DENIED; and it is further
ORDERED that Melcher shall preserve the replica kitchen until ten days after either expert discovery is concluded or the Note of Issue is filed, whichever occurs first.
This constitutes the decision and order of the court.
DATED: May 18, 2015
ENTER,
/s/_________
O. PETER SHERWOOD
J.S.C.