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denying summary judgment where defendant allegedly used “deceptive, misleading and untrue statements which disparaged plaintiff” to divert business
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2011-06-24
NORTH STATE AUTOBAHN, INC. and North State Autobahn, Inc. d/b/a, North State Custom, Plaintiff,v.PROGRESSIVE INSURANCE GROUP, Progressive Northeast Insurance Company, Progressive Casualty Insurance Company, Progressive Direct Insurance Company, and Progressive Specialty Insurance Company, Jason F. Ceasar, Nicholas Stanton, Joseph Zumar, Allison Chabon, Mark Herzner, Al Lucette, Defendants.
Anderson Kill & Olick, P.C., New York, Medina, Torrey, Mamo & Garcia, P.C., Sleepy Hollow, Attorneys for Plaintiff.Nelson Levine De Luca & Horst, New York, Attorneys for Defendants.
Anderson Kill & Olick, P.C., New York, Medina, Torrey, Mamo & Garcia, P.C., Sleepy Hollow, Attorneys for Plaintiff.Nelson Levine De Luca & Horst, New York, Attorneys for Defendants.
Upon the foregoing papers, Progressive is among the largest automobile insurers in the United States with a large presence in this State. Plaintiff is an automobile
repair shop in Westchester County.
PLAINTIFF SPECIALIzes in high-end vehicle repair, particularly of foreign vehicles, and tends to be more expensive than other shops. In or about 2000, Progressive created a Direct Repair Program (“DRP”), a network of repair shops with which Progressive had contractual arrangements concerning the costs and terms of repairs. Where the work is done at a DRP shop, Progressive guaranties the work. Progressive advertised the DRP and discussed its asserted advantages over non-participating repair shops with its insureds. The scope of the DRP may be illustrated by the evidence that in 2006, Progressive spent $1. 45 billion on DRP repairs and $1.65 billion on non-DRP repairs.
Plaintiff is owned by Greg Coccaro, Sr. (51%), Frank Massella (24.5%) and Lazlo Tudor (24.5%).
On February 16, 2007, Plaintiff commenced this proceeding. As originally filed, the Complaint asserted eight causes of action: (1) violation of General Business Law § 349; (2) violation of New York Insurance Law § 2601;
(3) common law fraud; (4) negligent misrepresentation; (5) tortious interference with prospective business advantage; (6) injurious falsehood; (7) prima facie tort; and (8) punitive damages. In response to the Defendants' motion to dismiss for a failure to state a cause of action, Plaintiff withdrew the seventh and eighth causes of action. By a Decision and Order dated June 26, 2007, this Court dismissed the Second, Third and Fourth Causes of Action. The Section 2601 claim was dismissed as the Legislature did not provide a private cause of action for its violation ( see Rocanova v. Equitable Assur. Soc., 83 N.Y.2d 603, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994] ). The fraud and negligent misrepresentation claims were dismissed as no misrepresentations were made to, or relied upon, by Plaintiff. Thus, what remains before the Court is the section 349 claim against Progressive and the tortious interference and injurious falsehood claims against all the Defendants.
New York Insurance Law § 2610 provides:
“(a) Whenever a motor vehicle collision or comprehensive loss shall have been suffered by an insured, no insurer providing collision or comprehensive coverage therefor shall require that repairs by made to such vehicle in a particular place or shop or by a particular concern.”
“(b) In processing any such claim (other then a claim solely involving window glass), the insurer shall not, unless expressly requested by the insured, recommend or suggest repairs be made to such vehicle in a particular place or shop or by a particular concern.”
The gravamen of the claims is that Progressive, through its employees (the individual Defendants) steered its insureds to the DRP shops and away from Plaintiff by means of deceptive, misleading and untrue statements which disparaged Plaintiff. A Trial Readiness Order was issued on September 15, 2010. Progressive timely moves for summary judgment dismissing the § 349 claim and Plaintiff timely moves for summary judgment as to liability with respect to such claim.
General Business Law § 349(a) declares unlawful “[d]eceptive acts or practices in the conduct of any business” and was enacted in order to protect consumers from misleading advertizing ( see Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 55, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999] ). As originally enacted, the statute was enforceable only by the Attorney General. In 1980, however, the statute was amended to provide a private right of action to “ any person who has been injured by reason of such illegal conduct” ( see General Business Law § 349[h] [emphasis added];
City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009] ). To establish Progressive's liability under § 349(h), Plaintiff must establish Progressive has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that Plaintiff has suffered injury as a result of the deceptive act or practice ( id.). On one hand, intent to defraud by Progressive and justifiable reliance by the Plaintiff are not required ( Small v. Lorillard Tobacco, Co., 94 N.Y.2d 43, 55, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999]; Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 214, 893 N.Y.S.2d 208 [2d Dept. 2010] ); on the other hand, direct, as opposed to derivative, injury is required ( City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 622, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009] ).
Progressive moves for summary judgment upon the grounds: (1) Plaintiff cannot demonstrate the requisite broad impact on consumers at large; (2) Plaintiff cannot show that any consumer to whom Progressive made an allegedly “deceptive” statement suffered any actual harm; (3) Plaintiff cannot show that Progressive engaged in misleading or deceptive behavior; and (4) assuming any consumers were harmed, any injury Plaintiff suffered was derivative only and therefore not actionable by Plaintiff under § 349.
It is clear that misrepresentations uttered in connection with a private, business-to-business dispute does not turn the matter into a § 349 violation ( see, eg, Anesthesia Assocs. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 473, 480, 873 N.Y.S.2d 679 [2d Dept. 2009]; Northeast Wine Dev., LLC v. Service–Univ. Distribs, Inc., 23 A.D.3d 890, 892, 804 N.Y.S.2d 836 [3d Dept. 2005], affd. 7 N.Y.3d 871, 826 N.Y.S.2d 173, 859 N.E.2d 912 [2006]; Canario v. Gunn, 300 A.D.2d 332, 333, 751 N.Y.S.2d 310 [2d Dept. 2002] ). On the other hand, practices by insurance companies involving routine, wide spread marketing and communication with insureds, impacting the public at large, may support a cause of action under § 349 ( Gaidon v. Guardian Life Ins. Co. of America, 94 N.Y.2d 330, 344, 704 N.Y.S.2d 177, 725 N.E.2d 598 [1999]; Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 162, 893 N.Y.S.2d 208 [2d Dept. 2010]; Elacqua v. Physicians' Reciprocal Insurers, 52 A.D.3d 886, 888, 860 N.Y.S.2d 229 [3d Dept. 2008] ).
Progressive relies on MVB. Collision, Inc. v. Progressive Northeastern Ins. Co., 2010 WL 3617134, No. 18018/09 [Sup. Ct., Nassau Co. 2010] for the position that this is a private, non-consumer business dispute and therefore not protected by § 349. Plaintiff relies on M.V.B. Collision v. Allstate Ins. Co., 728 F.Supp.2d 205 [E.D.N.Y. 2010] for the contrary position. Ironically, although the cases involved the same plaintiff and apparently identical facts—facts also apparently identical to the facts herein—the Courts came to different conclusions as to whether a claim under § 349 had been stated. In the two cases, the defendant insurance companies were alleged to have made disparaging misrepresentations to its insureds concerning plaintiff, a body shop, in connection with its steering of its insureds away from plaintiff to other shops.
In the Progressive case, Supreme Court dismissed. The Progressive Court held that Progressive's alleged wrongdoing was only a private contract dispute without an extensive marketing scheme or broad consumer impact. The Progressive Court also held that, as the plaintiff-body shop was suing the insurer of its consumer-customers, its claim was derivative only in violation of Blue Cross & Blue Shield of N.J. v. Philip Morris USA Inc., 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 [2004] and
City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 622, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009] and that the only non-derivative claim plaintiff had was that of steering in violation of Insurance Law § 2601, a claim the plaintiff lacked standing to prosecute.
The United State District Court in Allstate, on apparently identical facts, held that the evidence of Allstate's practice of steering and making misrepresentations to its insureds concerning plaintiff satisfied the consumer element of § 349 based on the number of Allstate policy holders all of whom were potential customers of plaintiff ( M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 212 [E.D.N.Y. 2010] ). As to the argument that the plaintiff's only nonderivative claim was for steering in violation of section 2601, the Allstate Court held:
“When, for example, Allstate allegedly ... steered a car away from Mid Island [by misrepresentations], not only was the customer the victim of a deceptive practice, but Mid Island also suffered a loss of business or other injury....”
“In sum, given that Mid Island's alleged injuries [loss of business] occurred as a direct result of the alleged deceptive practices directed at consumers, its injuries were not solely as a result of injuries sustained by another party.” ' ( Id. at 217). With respect to the argument that the plaintiff's cause of action was really a disguised steering claim, the Allstate Court held:
“Here, by contrast, there is evidence of a free-standing claim of deceptiveness' that simply happens to overlap' with a claim under the Insurance Law.... The alleged scheme [to dissuade Allstate insureds from going to Mid Island] involved not only ... steering but also, inter alia, alleged ... defamatory comments....”
* * *
“In sum, because plaintiff's § 349 claim merely happens to overlap' with provisions of New York Insurance Law, it is not an improper attempt to circumvent the lack of [a] private right of action under [the] Insurance Law....” ( Id. at 219–20). This Court agrees with M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205 [E.D.N.Y. 2010] that an insurer's misrepresentations to its insureds as part of a broad DRP may be sufficiently consumer-oriented to state a cause of action under § 349, that the alleged loss of business resulting therefrom is direct injury and that Plaintiff's cause of action is not merely a disguised claim for steering in violation of Insurance Law § 2610.
Progressive also argues that the § 349 claim fails to state a cause of action because Plaintiff cannot show that any of Progressive's consumer-insureds were harmed by its alleged misrepresentations concerning Plaintiff. This is actually another way or arguing that a business has no standing to assert a § 349 claim against a business competitor based on misrepresentations made by such competitor to consumers. Although § 349(h) extends the right of action “ to any person who has been injured by reason of any violation of this section [emphasis added],” case law originally denied relief to non-consumer competitors ( see H2O Swimwear, Ltd. v. Lomas, 164 A.D.2d 804, 806, 560 N.Y.S.2d 19 [1st Dept. 1990] ); see also Samiento v. World Yacht Inc., 10 N.Y.3d 70, 81, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008]. In 1995, however, the Second Circuit held that, based on the language of § 349(h), where there were misrepresentations to the public, a business competitor injured thereby had standing to assert a § 349 claim ( Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 [2d Cir.1995]; see also
M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 218 [E.D.N.Y. 2010] ).
Thereafter, in City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 624, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009], the New York Court of Appeals, in discussing Securitron, noted in dictum that “there is some legislative history supporting the position that business competitors have standing under the statute.” Based thereon,
To the extent that M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 218 [E.D.N.Y. 2010] held that the plaintiff therein was not a competitor of Allstate, this Court disagrees. Having created and promoted the DRP, Progressive made itself, in a real sense, a competitor of Plaintiff.
this Court holds that, where the other elements, including direct harm, are established, a business competitor has standing to assert a § 349 claim and may do so without proving specific harm to any consumer ( Securitron Magnalock Corp. v. Schnablock, 65 F.3d 256, 264 [2d Cir.1995]; M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 218 [E.D.N.Y. 2010]; City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 624, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009] ).
Aside from the question of the continued efficacy of Samiento v. World Yacht Inc., 10 N.Y.3d 70, 81, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008] and H2O Swimwear. Ltd. v. Lomas, 164 A.D.2d 804, 806, 560 N.Y.S.2d 19 [1st Dept. 1990] in light of City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 624, 883 N.Y.S.2d 772, 911 N.E.2d 834 [2009], both cases may be distinguished: the former as a private business dispute and the latter as a case in which neither a consumer nor a competitor was the plaintiff.
The Court notes that in opposition to Progressive's motion, Plaintiff submitted evidence of what it contends were deceptive acts perpetrated by two of Progressive's DRP shops, aided and abetted by Progressive, such as charging the insured-consumer for parts which were not installed or for new parts when used parts were used, harming the insured-consumer. The Court fails to see the relevance. The issue to be determined is whether and to what extent Plaintiff lost customers due to misrepresentations made by Progressive to its insureds concerning Plaintiff, not what misrepresentations it may or may not have made to its insureds concerning repairs that were performed at shops other than Plaintiff's.
As to Progressive's alleged misleading or deceptive behavior, Plaintiff has submitted evidence that Progressive employees made disparaging, untrue statements to its insureds concerning Plaintiff, in connection with the DRP, that caused Plaintiff to loose customers. The Court holds that such evidence of misrepresentations, made in connection with its DRP, an established program involving billions of dollars and thousands of consumer-insureds, raises a question of fact that requires a trial as to what statements were made, their truth or falsity and/or whether deceptive and misleading, how far reaching, and the extent to which Plaintiff was damaged thereby. Accordingly, Progressive's motion and Plaintiff's cross motion as to the § 349 claim are denied.
The second remaining cause of action is tortious interference with prospective business advantage. The elements of such cause of action are: (1) a prospective business relationship with a third party; (2) the defendant's interference with that relationship; (3) undertaken with the sole purpose of harming the plaintiff or by wrongful means; (4) causing injury to the plaintiff ( Advanced Global Tech. LLC v. Sirius Satellite Radio, Inc., 15 Misc.3d 776, 779, 836 N.Y.S.2d 807 [Sup. Ct., N.Y. Co.2007]; see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004]; NBT Bancorp Inc. v. Fleet/Northstar Financial Group, Inc., 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492 [1996] ).
All the Defendants move for summary judgment dismissing this claim based on the Plaintiff's asserted failure to identify those insureds-potential customers who Progressive interfered with; and that whatever actions Progressive took with respect to Plaintiff's customers were those of a competitor acting in its own economic interest, and not therefore undertaken with the sole purpose of harming plaintiff, nor by wrongful means. As indicated above ( see note 3, supra ), Plaintiff and Progressive were, to all intents and purposes, business competitors and whatever actions Progressive took with respect to its insureds—Plaintiff's prospective customers—were motivated by Progressive's legitimate economic self-interest. Accordingly, in order for Plaintiff to established this cause of action, it must show that Progressive interfered with specified potential customers, by wrongful means, resulting in them not employing Plaintiff to repair their vehicles ( Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190–91, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004]; Anesthesia Associates of Mt. Kisco, LLP v. Northern Westchester Hosp. Center, 59 A.D.3d 473, 477–78, 873 N.Y.S.2d 679 [2d Dept. 2009]; Advanced Global Technology LLC v. Sirius Satellite Radio, Inc., 15 Misc.3d 776, 836 N.Y.S.2d 807 [Sup. Ct., N.Y. Co. 2007]; see M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 213–15 [E.D.N.Y. 2010]; Jim Mazz Auto, Inc. v. Progressive Cas. Ins. Co., 2009 WL 891837 [W.D.N.Y. 2009] ). Wrongful conduct is conduct that is criminal or otherwise tortious including violence, fraud or misrepresentation, civil suits and criminal prosecutions and some degree of economic pressure beyond simple persuasion or is otherwise sufficiently wrongful ( Carvel Corp. v. Noonan, 3 N.Y.3d 182, 191, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004]; Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 300, 684 N.Y.S.2d 235 [1st Dept. 1999] ). In response, Plaintiff has submitted evidence that the following potential customers were convinced by Progressive to use DRP shops instead of Plaintiff by economic coercion and misrepresentations concerning Plaintiff: Joseph Stasio, Dorota Vyborna, Andrew Kramer and Drita Djeljevic. Additionally, Plaintiff has submitted evidence that Progressive interfered with the Biliks' employment of Plaintiff to repair their vehicle by misrepresentations and by the commencement of an unsuccessful lawsuit against Plaintiff.
This is sufficient to raise a question of fact for trial with respect to these identified lost customers ( M.V.B. Collision v. Allstate Ins. Co., 728 F.Supp.2d 205, 213–16 [E.D.N.Y. 2010]; Jim Mazz Auto, Inc. v. Progressive Cas. Ins. Co., 2009 WL 891837 [W.D.N.Y. 2009] ).
Plaintiff also submitted evidence that Progressive interfered with prospective customer Rrustem Gecai in 2002. The Complaint here was filed on February 16, 2007. All of the Defendants have answered. None of the parties submitted the Answer in violation of CPLR 3212(b), and the Court could have denied all the motions on that basis alone ( Zellner v. Tarnell, 54 A.D.3d 329, 861 N.Y.S.2d 598 [2d Dept. 2008] ). As none of the parties has raised this procedural defect, rather than waste the Court's and the parties' time, the Court retrieved the Answer from the Clerk's Office and has reached the merits of the motions. The Defendants plead the statute of limitations as an Affirmative Defense. As the statute of limitations for tortious interference is three years ( Basicorp Ltd. v. Kahn, 290 A.D.2d 147, 150, 736 N.Y.S.2d 708 [3d Dept.], lv. denied 98 N.Y.2d 601, 744 N.Y.S.2d 761, 771 N.E.2d 834 [2002] ), the alleged interference with respect to Rrustem Gecai is untimely and must be dismissed ( Jim Mazz Auto, Inc. v. Progressive Cas. Ins. Co., 2009 WL 891837 [W.D.N.Y. 2009] ).
FN7. Jim Mazz Auto, Inc. also held that Progressive's steering of its insureds in violation of Insurance Law § 2610 was wrongful conduct as criminal under Insurance Law § 109. This Court disagrees. As Plaintiff has no cause of action for steering, it cannot form the basis for a tortious interference claim whether criminal under the insurance law or not.
Accordingly, Progressive's
motion to dismiss the tortious interference with prospective business claim is denied with respect to the identified lost customers.
The individual Defendants, who are all employees of Progressive, move for summary judgment dismissing the Complaint as against them. The individual Defendants established their prima facie entitlement to summary judgment by submitting evidence in admissible form that they did not make any misrepresentations or falsehoods to any Progressive insureds concerning Plaintiff. In response, Plaintiff did not oppose the motion of Al Lucette and it is granted without opposition. As to the other individual Defendants, Plaintiff has submitted evidence that Nicholas Stanton made misrepresentations concerning Plaintiff and the Bilik vehicle.
Accordingly, the motion of the individual Defendants to dismiss the Complaint as to them is granted except as to Defendant Nicholas Stanton and is denied as to him.
While Plaintiff submitted evidence that Defendant Allison Chabon made misrepresentations about Plaintiff to Thomas Leonard, as he continued to use Plaintiff's shop, Plaintiff was not injured by this alleged misrepresentation.
The final cause of action is for injurious falsehood. The tort of injurious falsehood consists of the publication of false matter derogatory to the Plaintiff's business of a kind calculated to prevent others from dealing with the Plaintiff's business. The communication must have been malicious and have played a material and substantial part in inducing others not to deal with the Plaintiff, with the result that special damages, in the form of lost dealings, are incurred. However, if the accusation impeaches the integrity of the Plaintiff, special damages need not be shown ( Drug Research Corp. v. Curtis Pub. Co., 7 N.Y.2d 435, 440, 199 N.Y.S.2d 33, 166 N.E.2d 319 [1990]; Waste Distillation Tech., Inc. v. Blasland & Bouck Engineers, P.C., 136 A.D.2d 633, 523 N.Y.S.2d 875 [2d Dept. 1988] ). Malice means spite, ill will, or with knowledge that the statement was false or with reckless disregard of whether it was false or not ( Liberman v. Gelstein, 80 N.Y.2d 429, 437–38, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992]; Gilliam v. Richard M. Greenspan, P.C., 17 A.D.3d 634, 635, 793 N.Y.S.2d 526 [2d Dept. 2005] ). The existence of malice defeats a conditional privilege ( Liberman v. Gelstein, 80 N.Y.2d 429, 436–37, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ).
The Plaintiff has submitted evidence that Progressive uttered numerous derogatory statements to its insureds concerning Plaintiff. These may be broadly sorted into three categories: (1) Plaintiff was a problem shop/difficult to deal with; (2) Plaintiff overcharged/ did not do good work; (3) Plaintiff was a bunch of crooks. Category (1), assuming they were said, were statements of opinion, not fact, and therefore not actionable ( Gilliam v. Richard M. Greenspan, P.C., 17 A.D.3d 634, 793 N.Y.S.2d 526 [2d Dept. 2005] ). As to categories (2) and (3), Plaintiff has submitted evidence that Progressive made such derogatory statements of fact to its insureds concerning Plaintiff, that they were false, and that Progressive uttered them knowing they were false or with a reckless disregard for the truth, resulting in, with respect to category (2), Plaintiff losing identified customers. With respect to category (3), as it impeached the integrity of Plaintiff, special damages need not be shown. Accordingly, to the extent predicated on category (1), the Complaint is dismissed as to all Defendants. The injurious
falsehood claim is also dismissed as to all individual Defendants. Progressive's motion to dismiss the injurious falsehood claim, as to the alleged statements in categories (2) and (3) is denied.
Finally, in 2007, the New York State Insurance Department conducted an investigation into insurer's, including Progressive's, compliance with Insurance Law § 2610. At a January 28, 2010 deposition of Victor Politzi, the President of one of the Progressive Defendants, he refused to answer questions concerning the investigation based on attorney/client privilege, and, on May 25, 2010, obtained a protective order from Justice Lefkowitz, sitting in the Compliance Part,
on that basis. On appeal, the Appellate Division, Second Department reversed and remitted “to Supreme Court, Westchester County, for an in camera inspection of answers, to be supplied by Politzi in writing, that are responsive to the disputed deposition questions posed by the Plaintiff's counsel at Politzi's deposition regarding the letter dated July 3, 2007, and for a new determination thereafter of the Defendants' motion for a protective order.”
Pursuant to the Memorandum of Justice Scheinkman, Administrative Judge for the Ninth Judicial District, dated October 22, 2009, all discovery motions are heard in the Compliance Part.
By letter dated June 15, 2011, Plaintiff requested that this Court direct Mr. Politzi's written responses for in camera review by June 30, 2011. By letter dated June 22, 2011, Progressive responded that it anticipated that written responses would be provided within 30 days of its letter. This Court does not supervise discovery. Justice Lefkowitz issued the protective order, and the Appellate Division remitted the matter to her. Mr. Politzi's responses shall be submitted to the Compliance Part in accordance with whatever schedule Justice Lefkowitz sets. Any and all applications for post Note of Issue discovery will be made to the Compliance Part. As there is no longer a claim for steering in this case, such is without prejudice to the Trial Assignment Part scheduling this matter for trial pending the discovery on this tangential issue.
This constitutes the decision and Order of this Court.