NEIGHBOR DISPUTE - A SUIT AGAINST NOISY NEIGHBORS AND CO-OP

O'HARA v. BOARD OF DIRECTORS OF THE PARK AVE. & SEVENTY-SEVENTH ST. CORP., 2022 NY Slip Op 3872 - NY: Appellate Div., 1st Dept. 2022:

"Plaintiffs allege that unreasonable noise and stomping by the Lazars' children in the upstairs apartment directly above them adversely affected plaintiff Robert O'Hara, Jr.'s health and created structural cracks in the walls and ceiling of their unit. They allege further that the Co-op defendants failed to investigate and address the noise and structural damage.

The allegations concerning the noise are sufficient to state a cause of action for nuisance against the Lazars, as are the allegations of physical damage to the walls and ceiling (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]).

The cause of action for breach of contract against the Lazars was correctly dismissed, since there is nothing in the Lazars' proprietary lease that indicates that plaintiffs were intended third-party beneficiaries of the lease (see Ran v Weiner, 170 AD3d 425, 425-426 [1st Dept 2019]).

The complaint alleges that the Co-op board's refusal to investigate plaintiffs' concerns about the noise constituted unequal treatment and a dereliction of the directors' duties. However, because it does not allege that, in refusing to investigate, the directors were acting outside their official capacity, the complaint fails to state a cause of action for breach of fiduciary duty (Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 442 [1st Dept 2009]; see also Frankel v Board of Mgrs. of the Cent. Park W. Condominium, 177 AD3d 465, 467 [1st Dept 2019]).

The complaint states a cause of action for breach of article I, paragraph first of the proprietary lease, which requires the Co-op to maintain all structural parts of the building, including the apartment's walls and ceilings. To the extent the Co-op defendants contend that under the exculpatory clauses of the proprietary lease, they are not responsible for breaches by other shareholders of the cooperative, this argument is unavailing. The owner of a multiple dwelling has a nondelegable duty to maintain the building in good repair under Administrative Code of the City of New York § 27-2005(a), which applies irrespective of the source of the damage to the structural elements of the building.

The complaint fails to state a cause of action for breach of article I, paragraph second of the proprietary lease, because it does not allege that the Co-op failed to provide any of the enumerated services required to maintain the building in first-class condition. To the extent the claim is predicated on the Lazars' alleged violation of the house rules, it is barred by article II, paragraph fifth, which shields the Co-op from liability to one shareholder for another shareholder's violation of the rules (see e.g. Ran, 170 AD3d at 426).

The complaint fails to allege an eviction or abandonment sufficient to support a claim for breach of article I, paragraph seventh of the proprietary lease, which incorporates the covenant of quiet enjoyment (see Iken v Bohemian Brethren Presbyt. Church, 162 AD3d 594, 595 [1st Dept 2018]).

As to the claim for breach of the warranty of habitability, the allegations concerning the noise do not establish that the noise was so excessive that it deprived plaintiffs of the essential functions of a residence (see Kaniklidis v 235 Lincoln Place Hous. Corp., 305 AD2d 546, 547 [2d Dept 2003]). However, the allegations concerning the Co-op defendants' refusal to repair the structural cracks in the ceiling and walls state a claim for breach of the warranty, since structural cracks could give rise to a hazardous condition of the building (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327-328 [1979], cert denied 444 US 992 [1979])."

WHEN LAWYERS THROW MUD AT EACH OTHER ONLINE

Mor v. IMBESI LAW PC, 2022 NY Slip Op 30799 - NY: Supreme Court March 10, 2022:

"In this action, inter alia, to recover damages for libel, defendants Imbesi Law P.C. (Imbesi Law), Vincent James Imbesi (Imbesi), and Brittany Sloane Weiner (Weiner), move, pursuant to CPLR 3211(a)(1) and (7), to dismiss the amended complaint insofar as asserted against them.

BACKGROUND

From October 2017 to October 2018, plaintiff Ariel Mor Esq. (aka Ari Mor) and his law firm plaintiff Ari Mor Esq., P.C. (together Mor) subleased an office space from Imbesi Law pursuant to two separate lease agreements (Lease Agreements, NYSCEF Doc. Nos. 12, 13). The space subleased by Mor was part of a larger office suite utilized by Imbesi Law.

According to Mor, the phone lines in his subleased space never operated and Imbesi Law effectively blocked him from accessing interne and printing services (Amended Complaint at ¶ 13, NYSCEF Doc. No. 46). Additionally, Mor alleges that the air conditioning units in the subleased space failed on a consistent basis and that Imbesi intentionally turned off the power to the unit, making it impossible for Mor to work there for more than two hours at a time (id. at ¶¶ 14, 16). Further, Mor asserts that Imbesi posted notices throughout the office suite meant to embarrass and harass Mor and to prevent him from being able to conduct business at the premises (id. at ¶ 17). Collectively, the notices indicated that Mor failed to pay his rent for May and June 2018 and failed to pay his share of the electricity bill from February to July 2018 (id. at Exh 6).

Mor acknowledges that he stopped paying rent in May of 2018, but claims he stopped doing so because of the aforementioned allegations, which he asserts amounted to a constructive eviction (id. at ¶ 18-19). Mor alleges that after he refused to pay rent, John and Jane Does #1-100 (the Doe defendants), who Mor believes to be Imbesi and/or his law partner Weiner, began posting "numerous and repeated false and defamatory statements" on various websites, including Yelp.com (id. at ¶ 18-20). The Yelp reviews, some of which Mor reproduces in his amended complaint, are purported to be made by individuals who retained and/or did business with Mor (id. at ¶ 20).

According to Mor, he never did business with any of these individuals and the statements posted by them "anonymously under fake aliases" are fabricated (id. at ¶¶ 19, 22-35). Mor believes that Imbesi and/or Weiner created fake accounts in order to post these "defamatory reviews" (id. at ¶ 34).

Mor asserts that the statements posted in these Yelp reviews ruined his reputation and "had the effect of lowering [his] good will and worthiness in the estimation of the community, deterring others from associating or dealing with [him], and otherwise exposing [him] to contempt and ridicule" (id. at ¶¶ 139-140). He alleges that "[a]ny client or prospective client who investigates and/or searches [him] on, inter alia, www.Google.com and/or www.Yelp.com [would quickly find] the Defamatory Statements" (id. at ¶ 142).

On September 4, 2018, Mor commenced the instant action against Imbesi Law, Imbesi, Weiner, and the Doe defendants, alleging causes of action for: libel; libel per se; injurious falsehood; tortious interference with prospective business advantages, opportunities and relations; fraud; violation of section 349 of the General Business Law (General Business Law 349); breach of contract; commercial tenant harassment under section 22-902 of the Administrative Code of the City of New York (Administrative Code 22-902); partial constructive eviction; and for a declaration that the statements posted on the interne are defamatory and/or defamatory per se (Original Complaint, NYSCEF Doc. No. 1).

In the interim, Imbesi Law initiated a summary non-payment proceeding in the New York City Civil Court against Mor, entitled Imbesi Law P.C. v Law Offices of Ari Mor, Esq., P.C. (L&T Index No. 064133/2018). On September 4, 2018, Mor moved by order to show cause to remove the non-payment proceeding and to consolidate it with the instant action. On October 29, 2018, this court granted Mor's motion (Order [Mot. Seq. No. 001], NYCEF Doc. No. 24).

Thereafter, Imbesi Law, Imbesi and Weiner moved to dismiss the original complaint insofar as asserted against them. By order dated May 8, 2020 (the prior order), this court granted their motion to the extent of (1) dismissing the causes of action alleging violation of General Business Law 349 and commercial harassment under Administrative Code 22-902, and (2) dismissing the causes of action for libel, libel per se, breach of contract, and a declaratory judgment with leave to replead these claims with specificity and serve an amended complaint as to those causes of action within 30 days (Order [Mot. Seq. No 002], NYSCEF Doc. No. 44). The court denied, as moot, those branches of the motion which were to dismiss the causes of action for injurious falsehood, tortious interference, fraud, and partial constructive eviction, on the ground that those causes of action were withdrawn by Mor in opposing the motion (id.).

On June 7, 2020, Mor filed an amended complaint against the same defendants asserting causes of action for (1) libel, (2) libel per se, (3) breach of implied covenant of good faith and fair dealing, (4) commercial tenant harassment under Administrative Code 22-902, and (5) seeking a declaration that defendants have committed libel and/or libel per se (Amended Complaint, NYSCEF Doc. No. 46).

Now before the court is a motion by Imbesi Law, Imbesi, and Weiner (hereinafter the moving defendants) to dismiss the amended complaint as against them pursuant to CPLR 3211(a)(1) and (7). For the following reasons, their motion is denied.

DISCUSSION

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). On a CPLR 3211(a)(1) motion to dismiss based on documentary evidence, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [internal quotation marks and citations omitted]).

Libel and Libel Per Se

"The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory" (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). A defamatory statement is one that "tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Davis v Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks and citations omitted]).

A complaint alleging defamation "must set forth the particular words allegedly constituting defamation (see CPLR 3016[a]), and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Epifani v Johnson, 65 AD3d 224, 233 [2d Dept 2009][quotation marks and citations omitted]).

The Court of Appeals has stated:

"In determining the sufficiency of a defamation pleading, we consider whether the contested statements are reasonably susceptible of a defamatory connotation [and] [i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action. We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, we recognize as well a plaintiffs right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets [the] minimal standard necessary to resist dismissal of [the] complaint"

(Davis v Boeheim, 24 NY3d 262, 268 [2014][internal quotation marks and citations omitted]).

In the prior order, this court dismissed the causes of action for libel and libel pers se on the ground that the original complaint failed to set forth "the particular words complained of (CPLR 3016[a]). The court noted that while Mor alleged in the complaint that defendants made numerous false and defamatory statements on the internet, and annexed copies of various Yelp reviews as exhibits to the complaint, Mor failed to delineate in the complaint exactly which statements were defamatory. The court granted Mor leave to replead these causes of action to specify which statements in each Yelp review are alleged to be defamatory.

The causes of action in the amended complaint alleging libel and libel per se now describe the alleged defamatory statements with the requisite specificity. In paragraph 20 of the amended complaint (NYSCEF Doc. No. 46), Mor reproduces the following Yelp reviews, which he collectively refers to as "the Defamatory Statements," and delineates the words that are alleged to be defamatory, which appear below in bold:^[1]

(1) A one-star (out of five) review, dated "5/15/18," posted by user "JR," which states:

"I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b...

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware."

(2) A zero-star review, dated "Jun 29, 2018," posted by user "Sally S.," which states:

"This guy went crazy in a law office I was at. He was cursing and screaming and banging walls. You would not believe how unprofessional he was. I think he did not pay his rent for 50 days and was upset. Not sure what his problem is."

(3) A one-star review, dated "8/6/2018," posted by user "Janie H.," which states:

"We contracted with this guy. He seemed ok at first BOY were we wrong. He literally attacked a lawyer — yelling `fucking faggot' among other slurs. I think he is being evicted from his law office (at least I saw a legal document trying to evict him for failing to pay his rent.) The office is SUPER convenient. So that is a plus.

I am not sure what causes him to go off and attack people using anti gay slurs. Not cool with me. He is a loose cannon. See the lawsuit filed against his law firm. It claims to have video of this dope attacking a lawyer while threatening to kill him (you cannot make this stuff up! !)

Please do your own diligence. Maybe he was having a bad day?"

(4) A zero-star review, dated "Aug 10, 2018," posted by user "Shana F.," which states:

"I never write reviews but need to warn public of my opinion. Contracted with Ari Mor law firm months ago. I now find out his landlord has filed to evict him for failing to pay!!!! The legal docs again this guy claim he threatens others around him including using anti gay comments. He appears to bully anyone that speaks out against him though this dog appears to be all bark and no bite in my opinion. Check out all of the yelp reviews he has deleted — huge indication of insecure man. Read the legal documents filed AGAINST Ari Mor's law firm and make your own decision. Yes, Mr. Mor you can try to sue me for defamation, but truth is defense, so good luck."

(5) A two-star "updated review," dated "8/24/2018," posted by user "G.F.," from Manhattan, which is identical to the review posted by user "JR" on "5/15/18." Below the "updated review," is a one-star review, denominated "previous review," dated "8/17/2018," that is also identical to the review posted by "JR" on "5/15/18."

(6) A one-star review, dated "8/22/2018," posted by user "Fran F.," from Montclair, NJ, that is also identical to the review posted by "JR" on "5/15/18."

(7) A one-star review, dated "8/24/2018," posted by user "Gina G.," from Towaco, NJ, which states:

"It was coo coo crazy, mean and creepy all at the same time. Do you think his reviews are real? My opinion is NO WAY. The fact is that, attorneys don't usually get many reviews. Maybe 1-3 at the most over a period of 10 years. This guy is wet behind the years. Just 4 years out of school, and can't even make a phone call. There are many great attorneys with long careers and absolutely no reviews, because an attorney is not the sort of business that most people write reviews about. I certainly wouldn't have thought to do it if he hadn't texted my about how great he is on YELP.

I called Ari Mor & left message on various days but didn't hear back. I tried again a week later on 6/21, and he actually answered quickly told me I could email all the case information and got off the phone. I immediately emailed everything & didn't hear back. I called & left messages and sent a text on 6/27. Finally, on 6/28 he emails stating, `Can we speak tomorrow afternoon'. I immediately responded letting him know that I would be having medical therapy & asked if we could speak in the evening instead. He didn't respond. When I came home from the doctor I felt very ill and tried to email him again. I asked, `Can we speak some time tomorrow?' He didn't respond and when I called the next day there was no answer. I tried to call his # numerous times but never received any call back. On 7/7 I texted again and he responded by text stating that he had been on vacation. He claimed that we had had a time to speak but that I never called (total lie). I texted back, `I usually assume that if I am not able to correspond back timely other counsel will be pursued.' I then asked if he had ever looked over my documents. He responds, `I had which is why we had scheduled the last call time.' (We had no call time scheduled). What he texted after was disturbing. He texted first, "I was contemplating your request to take the matter on contingency basis.' Then his next text, "I'm unable to do that at the moment.' Then another text, `I don't work on Contingency. My fee for Article 78 is $5k & 25%.' Followed by text stating, "My fees are set & there are many people happy to pay them for my work. I urge you to read my Yelp reviews.' (Yes he actually wrote this!) Then he went on sending 5 more babbling text to me and then a last one which stated, `I had asked a few of my colleagues if they were interested in picking up your matter on contingency & I had no response btw."

(8) A one-star review, dated "9/2/2018," posted by user "Gore G.," from Cliffside Park, NJ, which states:

"OK — Everyone this con artist pays for reviews. I have wondered how such a disgusting person could have so many positive reviews. He hired a service that writes fake reviews (check out how a positive review arrives when anyone writes a negative review).

The service pays for posts from San Francisco then changes the location of the fake review.

I posted this review several times since 2017.

Here it is:

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware.

I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b..."

(9) A two-star review, dated "9/2/2018," posted by user "Turner T.," from Manhattan, NY, that is nearly identical to the one-star review posted by user "Gina G." on "8/24/2018."

(10) A one-star review, dated "9/3/2018," posted by user "Edgar E.," from Kearny, NJ, which states:

"I wrote back in early 2018 and checked back. I noticed the fake reviews too but never put two and two together. It confused me that anyone would write anything positive about a man with an obvious mental disorder. How did this derelict get into law school?

Old Review: I was facing an illegal eviction where my landlord terminated my lease and wanted me out of my apartment of 6 years. I was going thru a stressful time thinking that I was going to lose my apt. I decided to search on Yelp for some good Housing Attorneys. Upon my search I ran across Ari Mor. This guy had so many positive reviews. I went thru them most. i was sure i found the right attorney to represent my case.

I called Mr. Mor. He asked me to send him all the documents i had including all letters sent by my landlord. He immediately told me that it will cost me $500 via QP. In addition he said he would take my case on contingency. This meant that he would receive a percentage of whatever monies were awarded thru this case. Mr. Ari Mor sent the letter over to my landlord. Days went by i reached out to Mr. Mor to see if he had heard back from the landlord regarding the letter we submitted in response their termination. He claimed he called, left a message and didn't hear back. Days went by and we haven't gotten a reply to our letter. I reached out to Mr. Mor numerous occasions and he was always unavailable or was on vacation. Each time i called and texted i had to wait days before he replied.

I decided to take matters in to my own hands and gave my landlord's attorney a call to see if they had received this `Demand Letter' sent by Ari Mor. While on the phone I may have heard some laughter in the background then the person answered that Yes in fact they reviewed it but cannot discuss anything with me but only my attorney and he hadn't called.

My first court appearance arrived and the day before Mr. Ari Mor told me that wouldn't be available to appear in court due to family emergency. And that i should call back after court. I was under the impression i had an attorney hired. I went to court and got an adjournment to seek an attorney. Mr. Mor had never signed up on the website as my attorney. So i had none listed. I immediately fired Mr. Mor via email, text. Had i not fired Ari Mor and hired a new attorney, i would have been evicted at this very moment.

I am now out of $500 for a dumb letter suggested by Mr. Mor but thank god i still have my apt no thanks to him. my new attorney won our case."

The moving defendants point out that the amended complaint alleges that the persons who posted these Yelp reviews are the "Named Defendants/DOE Defendant(s) (believed to be Defendant Vincent James Imbesi, Esq. and/or Defendant Brittany Sloane Weiner, Esq.)" (Amended Complaint at ¶ 18, NYSCEF Doc. No. 46), and thus fails to specifically identify which defendant actually made the challenged statements. They cite support for the proposition that this warrants dismissal of Mor's defamation claims (see Jackie's Enters., Inc. v Belleville, 165 AD3d 1567, 1571 [3d Dept 2018]["the complaint does not sufficiently identify the specific third persons to whom the statements were allegedly made or identify which of the three defendants made any of the alleged statements"][emphasis added]; Murphy v City of New York, 59 AD3d 301, 301 [1st Dept 2009]["The complaint failed to establish all the elements of defamation, inasmuch as plaintiff did not allege the time, the manner and the persons to whom the publication was made, nor did he identify the person who made it"] [emphasis added and citation omitted]; Trakis v Manhattanville Coll., 51 AD3d 778, 781 [2d Dept 2008][plaintiff "never identified who spoke the remarks"]).

However, as Mor points out, the First Department has held that a plaintiffs failure to identify exactly which defendant made a particular defamatory statement is not necessarily fatal to a defamation claim (see Cedeno v Pacelli, 192 AD3d 533, 534 [1st Dept 2021][plaintiffs' failure to specify exactly what words were spoken by which defendant was not fatal to defamation claim "since the amended complaint contain(ed) the dates, text, context, URLs, and other information about the defamatory statements(,) allege(d) that the (named defendants) were responsible for authoring, publishing, or causing others to publish them(, and t)here (were) no allegations that the John Does acted independently of the (named defendants)"[citation omitted]; see also Fletcher v Dakota, Inc., 99 AD3d 43, 55 [1st Dept 2012]["While some of these allegations do not specify exactly which of the defendants made a particular statement, that is not a fatal defect"]).

The moving defendants also assert that the defamation causes of action should be dismissed because Mor did not sufficiently allege the time these publications were made. This argument is unavailing because each Yelp review indicates the date on which it was posted.

Additionally, the moving defendants unpersuasively argue that the defamation claims should be dismissed because the alleged defamatory statements are true. While truth is an absolute defense to a defamation claim (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]), the moving defendants have not established that the alleged defamatory statements are true.

The court also disagrees with the moving defendants' contention that the statements complained of constitute non-actionable statements of opinion. "Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action" (Davis v Boeheim, 24 NY3d at 268 [internal quotation marks and citations omitted]). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 NY3d 271, 276 [2008][internal citations omitted]). "Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean" (Davis v Boeheim, 24 NY3d at 269 [internal quotation marks and citations omitted]). The inquiry "is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" (id. at 269-270 [internal quotation marks and citations omitted]).

"While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a mixed opinion and is actionable" (id. at 269 [internal quotation marks and citations omitted]). "What differentiates an actionable mixed opinion from a privileged, pure opinion is the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person being discussed" (id. at 269 [2014][internal quotation marks and citations omitted]).

In deciding whether statements are assertions of fact as opposed to nonactionable expressions of opinion, the court must consider:

"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact"

(Davis v Boeheim, 24 NY3d at 276 [quotation marks and citations omitted]). The third factor "requires that the court consider the content of the communication as a whole, its tone and apparent purpose" (id. at 270). "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the ... plaintiff" (id. [internal quotation marks and citations omitted]). For example, "[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole" (Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 41-42 [1st Dept 2011][internal quotation marks and citations omitted]).

Here, some of the statements proffered as a basis for Mor's defamation claim are actionable and some are non-actionable. The statements characterizing Mor as "unscrupulous," "a predatory con artist," and a "sleazy lawyer," and describing him as "a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people" are non-actionable in that they suggest that the authors were merely expressing their opinion based on "negative business interaction[s] with" Mor (Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017]; see Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017] ["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]). In addition, terms such as "smooth talking" and "sleazy" do not have a precise meaning and are incapable of being proven true or false (see Board of Mgrs. of Brightwater Towers Condominium v Shlivko, 186 AD3d 553, 554 [1st Dept 2020]).

However, the following statements are actionable as factual assertions: that Mor has a "mental disorder," "bull[ies] anyone that speaks out against him," "went crazy" in his office by "cursing and screaming and banging the walls," attacked another attorney by "yelling `fucking faggot' among other slurs," posted fake Yelp reviews, and hired a service to write fake Yelp reviews. Therefore, contrary to the moving defendants' contention, Mor sufficiently alleges a cause of action for libel. The moving defendants argue that these alleged false factual accusations should nevertheless be considered non-actionable expressions of opinion in that they were anonymously posted on a consumer review website. In this regard, they rely on a number of cases which they contend stand for the proposition that a comment made in the context of an online review is not actionable (citing Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017] [finding that statements in anonymously posted on-line reviews were not actionable because while they contained "elements of both fact and opinion, when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs," and noting that readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts]; Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017]["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]; Stolatis v Hernandez, 161 AD3d 1207 [2d Dept 2018] ["given the context in which the statements ... were made, and viewing the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion"]; Matter of Woodbridge Structured Funding, LLC v Pissed Consumer, 125 AD3d 508, 509 [1st Dept 2015]["Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a nondefamatory meaning, grounded in opinion"]).

However, these cases do not establish a blanket rule that all statements posted anonymously on Yelp, or other on-line review websites, are automatically insulated from liability for defamation. None of them hold that these websites confer "a license to make false factual accusations and thereby unjustly destroy individuals' reputations" (Brian v Richardson, 87 NY2d 46, 52 [1995]["an article's appearance in the sections of a newspaper that are usually dedicated to opinion does not automatically insulate the author from liability for defamation"]). Indeed, the Court of Appeals has "repeatedly emphasized that the forum in which a statement has been made, as well as the other surrounding circumstances comprising the `broader social setting,' are only useful gauges for determining whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact" (id.).

Here, the writers were not utilizing Yelp just to communicate an opinion. Significantly, a reasonable reader could believe accusations that plaintiff was "cursing and screaming and banging walls" in his office, the he paid a service to write fake Yelp reviews, and that he attacked another attorney by "yelling flicking faggot among other slurs," do not represent opinions or hyperbole, but are conveying facts about the plaintiff (see Davis v Boeheim, 24 NY3d at 269-270 ["The dispositive inquiry ... is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff"][internal quotation marks and citations omitted]).

As to the cause of action for libel per se, a defamation plaintiff must plead and prove that he or she suffered special damages unless the defamation falls into one of four per se categories (see Epifani v Johnson, 65 AD3d at 233-234). "When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven" (id. at 234). The four per se categories include "statements that tend to injure the plaintiff in her trade, business or profession" (Nolan v State of New York, 158 AD3d 186, 195 [1st Dept 2018]). Since the statements at issue tend to injure Mor in his trade, business, or profession, they are actionable as libel per se.

Thus, this branch of the motion is denied.

Breach of the Implied Covenant of Good Faith and Fair Dealing

In the prior order, this court dismissed, with leave to replead, the cause of action for breach of contract on the ground that the original complaint did not specify which provisions of Mor's rental agreements Imbesi Law breached. In his amended complaint, Mor does not plead a cause of action for breach of contract. Instead, he asserts a cause of action for breach of the implied covenant of good faith and fair dealing against Imbesi Law.

"In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002][internal quotation marks and citations omitted]; see Moran v Erk, 11 NY3d 452, 456 [2008]).

Here, the amended complaint alleges that Imbesi Law breached the implied covenant of good faith and fair dealing by turning off the power to Mor's office space while Mor was trying to conduct client meetings. It further alleges that the phone lines to Mor's office space were not operational and that Imbesi blocked him from accessing internet and printing services.

The subleases, which are annexed to the amended complaint, do not include any terms obligating Imbesi to provide phone, internet or printing services (see Vanlex Stores, Inc. v BFP 300 Madison II LLC, 66 AD3d 580, 581 [1st Dept 2009]["the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing"]; Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 268 [1st Dept 2003]["While the covenant of good faith and fair dealing is implicit in every contract, it cannot be construed so broadly as effectively to nullify other express terms of a contract, or to create independent contractual rights"]). However, Mor is also alleging that by turning off the power to his office space when he met with clients, Imbesi Law's actions undermined Mor's ability to conduct business there, which was the fundamental objective of Mor's subleases with Imbesi Law. Thus, the allegations in the amended complaint plead a cause of action for breach of the implied covenant of good faith and fair dealing. The court's role in deciding this motion is not to determine whether Mor will ultimately succeed on the claim.

The moving defendants argue that this claim should be dismissed because it is merely a substitute for a non-viable breach of contract claim. However, "[a] party may be in breach of its implied duty of good faith and fair dealing even if it is not in breach of its express contractual obligations" (Chase Manhattan Bank, N.A. v Keystone Distributors, Inc., 873 F Supp 808, 815 [SDNY 1994]).

The cases relied upon by the moving defendants in this regard are distinguishable. In Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., the court dismissed the breach of implied covenant of good faith and fair dealing claim because enforcing it would have been inconsistent with the provisions of the contract, which is not the case here (Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., 51 AD3d 549, 550 [1st Dept 2008]).

The moving defendants' reliance on Triton Partners v Prudential Sec. (301 AD2d 411, 411 [1st Dept 2003]) is similarly misplaced. In that case the plaintiff pleaded a breach of contract claim seeking to enforce the terms of an oral agreement pursuant to which defendant purportedly promised to proceed with the terms of the transaction at issue. The court held that the breach of contract claim was correctly dismissed inasmuch as the terms of the oral agreement plaintiff was seeking to enforce conflicted with the terms of an engagement letter that permitted the defendant to terminate the contract without cause on ten days notice. The court held that the breach of the covenant of good faith and fair dealing claim was properly dismissed "since it was merely a substitute for a nonviable breach of contract claim" and that "[a] party has an absolute, unqualified right to terminate a contract on notice pursuant to an unconditional termination clause without court inquiry into whether the termination was activated by an ulterior motive" (id. at 411 [quotation marks and citations omitted]). The instant case is distinguishable because the breach of implied covenant of good faith and fair dealing claim is not inconsistent with a clause in the lease agreements Mor sought to enforce in his breach of contract claim. Sheth v New York Live Ins. Co. (273 AD2d 72, 73 [1st Dept 2000]), is distinguishable on the same basis.

Thus, this branch of the motion is denied.

Commercial Tenant Harassment under Administrative Code 22-902

Administrative Code 22-902 prohibits a landlord from engaging in "commercial tenant harassment," which is defined as "any act or omission [that] would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property." Such conduct includes, "causing repeated interruptions or discontinuances of one or more essential services," "causing an interruption or discontinuance of an essential service for an extended period of time," "causing an interruption or discontinuance of an essential service where such interruption or discontinuance substantially interferes with a commercial tenant's business," and "engaging in any other repeated or enduring acts or omissions that substantially interfere with the operation of a commercial tenant's business" (Administrative Code 22-902 [a] [ii] [2-4], [10]).

In the prior order, this court dismissed Mor's claim for commercial tenant harassment under Administrative Code 22-902 on the ground that Mor failed to annex a copy of the rental agreement to the complaint and as such, failed to adequately plead a violation section 22-902.

Now, Mor has annexed the rental agreements to his amended complaint and alleges that the following constitutes commercial harassment under the statute: (1) Imbesi Law turned off the power to his unit while he was meeting with clients or otherwise conducting business therein, making it impossible for him to be in the unit for more than an hour or two at a time, and (2) Imbesi Law annoyed Mor and disrupted his ability to meet clients/conduct business within the subject premises by posting harassing notices all over the office so as to annoy harass, and cause embarrassment to Mor and to prevent him from being able to meet clients or conduct business within the subject premises.

The moving defendants point out that in the prior order, the court did not dismiss the commercial tenant harassment claim with leave to replead. Therefore, they assert, it was improper for Mor to again include this claim in the amended complaint.

In the prior order, the court dismissed this cause of action solely for failure to annex the lease agreement to the complaint. Not dismissing the cause of action with leave to replead was inconsistent with the intent of the court as demonstrated by the court dismissing the breach of contract claim with leave to replead on the same basis (see CPLR 5019[a]; Johnson v Societe Generale S.A., 94 AD3d 663, 664 [1st Dept 2012][a correction under CPLR 5019(a) is permitted even were a substantial right of a party is affected, where the error "is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record"]).

The moving defendants assert that dismissal of this cause of action is also warranted on the merits. In so arguing, they refer the court to the contentions raised by them in support of their first motion to dismiss. In support of their first motion to dismiss, the moving defendants argued that Mor improperly pleaded the commercial tenant harassment claim against Weiner and Imbesi because they were not parties to the lease agreements and cannot be liable for Imbesi Law's contractual obligations. However, in the amended complaint, Mor pleads this claim against Imbesi Law only. In support of their prior motion, the moving defendants did not set forth a basis for dismissing the commercial tenant harassment claim against Imbesi Law and set forth no basis for doing so on the merits in support of the instant motion.

Thus, this branch of the motion is denied.

Declaratory Judgment

In the fifth cause of action, Mor is seeking a judgment declaring that the purported "Defamatory Statements are defamatory/libelous and/or defamatory/libelous per se" (Amended Complaint at ¶ 258, NYSCEF Doc. No. 46). Given that Mor's libel and libel per se causes of action are viable, the court declines to dismiss this cause of action.

CONCLUSION

In accordance with the foregoing, it is hereby

ORDERED that the motion by defendants Imbesi Law P.C., Vincent Imbesi, and Brittany Weiner to dismiss the amended complaint against them is denied.

This constitutes the decision and order of the court.

[1] Other than adding bold type to denote the precise words Mor alleges to be defamatory, the spelling, punctuation, capitalization, and spacing in these reviews is quoted as it appears in the amended complaint."

CONTRACT CONSTRUCTION WITH AN "AMBIGUOUS" LLC OPERATING AGREEMENT

YMSF Family P'ship LP v. Beitel, Date filed: 2022-01-25, Court: Supreme Court, Kings, Judge: Justice Leon Ruchelsman, Case Number: 514791/17:

"The plaintiff has moved seeking summary judgement pursuant to CPLR §3212. The defendant opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments' this court now makes the following determination.

In September 2013 the plaintiff and the defendants entered into an operating agreement whereby the plaintiff paid $80.0, 000 "towards purchase of equity interest" and was given a 49.9% share In an entity called 5309, 18^th Ave Besatya LLC. The defendant Beitel maintained a 50.1% share of the entity. Thereafter the plaintiff sought access to the. entity's books and records and such request was denied numerous times. On July 31., 2017 the plaintiff brought this action, seeking, a declaratory judgement that they are a member of the entity and have all rights, of membership. The plaintiff has now moved seeking summary judgement arguing that there are no questions of fact the operating agreement has conferred ownership interests upon the plaintiff and that pursuant to those interests they are entitled to the books and records. The defendants have opposed the motion arguing that the operating agreement did not intend to provide any ownership, interest to the plaintiff. Rather, the transaction was. only one. of a loan provided: by the: plaintiff and the operating agreement was worded in that, fashion to avoid, the appearance of an interest bearing lean prohibited by Jewish law. The defendants assert that the principles of the plaintiff as well as the defendant are all Orthodox Jews and purposefully and. intentionally crafted the transaction as an Operating agreement as such to avoid the appearance of a prohibited interest bearing loan. Therefore, the defendants argue there are surely questions of fact whether the plaintiff is an owner of. the entity and consequently summary, judgement must be denied.

Conclusions of Law

It is well settled that an agreement that is clear and unambiguous on its face shall be enforced according to its plain terms (Greenfield v. Philies Records Inc. 98 N.Y.2d 562, 750 N.Y.S.2d 565 [2002]). Extrinsic evidence demonstrating the true intent of the parties is generally inadmissible (Pentacon LLC v. 422 Knickerbocker LLC, 165A.D.3d 829, 86 N.Y.2d 177 [2d Dept., 2018]}. Such extrinsic evidence may be admissible if an ambiguity exists and whether such ambiguity exists is a. question of law (MRT Mew York, LLC. Brown, 167 A.D.3d 764, 89 N.Y.S.3d 695 [2d Dept., 2018]).

Further, extrinsic evidence may not be submitted to create an ambiguity (Brad H. v. City of New York, 17 N.Y.3d 180, 921 N.Y.S.2d 221 [2017]). A contract will be considered ambiguous if susceptible to more than one interpretation (id)..

The terms Of the operating agreement are clear and are not ambiguous in any manner. The operating agreement provides that the purpose of the entity is engage "in any Lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in all activities- necessary or incidental to the foregoing" (see. Operating. Agreement, ¶2). The agreement further provides that "the Membership interests and contributions of the Members as of the date hereof ere as follows: Binyamin Beitel: 50, 1%., YMSF Family Partnership L. P. 49.9% $800, 000 (paid towards purchase of entity interest)" (see., Operating Agreement, ¶4), In addition the agreement provides that, "the Members shall have, the power to do, any and all acts necessary or convenient to or for the furtherance of the purposes described herein..” (see. Operating Agreement., ¶6)... These provisions plainly and unmistakably afford the plaintiff with membership interests in the entity. The defendants argue that an unproduced document evidencing a loan exists which undermines the. .unambiguous terms of the operating agreement... Specifically, the defendants assert that a heter iska, a religious document utilized to circumvent the Jewish prohibition against interest by treating all loans as^: partnerships or business ventures was entered into between the parties (see. In re Venture Mortgage Fund: L, P, , 245 BR 460 [S.D.N.Y. 2000]) and thus the operating agreement merely evidenced a loan without any membership interests on the part of the. plaintiff. However., that argument really seeks a determination that despite the unambiguous language of the operating agreement such ambiguity exists and the ambiguity is resolved by completely altering, the terms of the operating agreement. Thus, as noted without any ambiguity the plain meaning of the contract terms control (Goetz y. Trinidad, 168 A.D.3d 688, 91 N.Y.S.3d 513 [2d Dept., 2019]). This is especially true in this case where there is no, heter is.ka agreement presented.

Further, the affidavit of Rabbi Avrohom Moshe Lewanoni who stated, that he was consulted by the plaintiff because the plaintiff "wanted to loan Binyamin Beitel money" (see; Affirmation of Rabbi Lewanoni., January 20, 2020., ¶13) does hot raise any questions of fact. First, even if true such a consultation occurred it has no bearing on the actual operating agreement signed in 2013 which is clearly a membership agreement. Further., in a subsequent affirmation dated;February 18, 2020 Rabbi Lewanoni explained that he never consulted with the plaintiff concerning the specific property that is the subject of the operating agreement (see, Affirmation of Rabbi Lewanoni., February 18, 2020, 16). Thus, the second affidavit which may appropriately be considered in Reply surely diminished "the limited value of the first- affidavit. In any event,, even if the second affidavit would not be considered, the first affidavit does not create any question of fact because the operating agreement contains no ambiguity that would permit such extrinsic evidence.

Moreover, it is not proper to utilize parol evidence in the religious context to establish the substance of a secular agreement (see. In re Marriage of Shaban, 88 Cal App. 4th 398, 105 Cal.Rptr2d. 863 [Court of Appeal, 4^th District, Division 3, California 2001]).

Lastly, there is no merit to the argument any buy-back provision further supports the argument the operating agreement is really a loan since in any event the defendants failed to exercise the buy-back provision in the requisite time frame: further supporting the conclusion the plaintiff is a member of the entity.

For these reasons the motion is not premature. Further discovery or depositions will have no impact and cannot alter the plain language of the operating agreement. Similarly, the defendant's counterclaims are; all dismissed.

Thus, based on the foregoing the motion seeking summary judgement on the three causes of action of the complaint is granted.

So ordered."

WHEN SEEKING DISCOVERY AND THE LITIGANT IS AN ATTORNEY

Yesterday I posted an earlier decision on this matter which also had a prior discovery issue on expert witnesses. This matter addresses the issue of privileged emails.

Theroux v Resnicow 2021 NY Slip Op 50622(U) Decided on July 7, 2021 Supreme Court, New York County Lebovits, J.:

"This action arises from an ongoing quarrel among neighbors, plaintiff Justin Theroux and defendants Norman and Barbara Resnicow, who live in a Manhattan co-op apartment building. Norman Resnicow is a senior equity partner at the law firm of Fox Horan & Camerini LLP. This court previously ordered defendants to produce to plaintiffs all responsive and non-privileged emails that Resnicow sent from his Fox Horan email account, and to provide a privilege log for those responsive Fox Horan emails that defendants were withholding on the ground of the attorney-client or spousal privileges. (See Theroux v Resnicow, 2020 NY Slip Op 51489[U], at *2, *5 [Sup Ct, NY County Dec. 16, 2020].)

This decision concerns seven emails between Norman Resnicow and other Fox Horan attorneys on Resnicow's firm email account. Defendants withheld those emails as shielded by the attorney-client privilege. Plaintiff disputed the claim of privilege and sought a ruling on the dispute from this court. This court previously notified the parties by email of its ruling that six of the emails (between Resnicow and a lawyer who was then an associate at the firm) were not privileged and must be produced, without providing the court's full reasoning for its conclusion. This decision explains the court's determination as to those six emails. In addition, the decision also resolves the parties' disagreement about the seventh email. The court concludes that the [*2]seventh email (between Resnicow and a senior firm lawyer) also is not privileged and must be produced.

DISCUSSION

The attorney-client privilege shields from disclosure communications (i) between a client and attorney, (ii) intended to be, and actually kept, confidential, and (iii) sent for the purpose of obtaining or providing legal advice. (See Ambac Assur. Corp. v Countrywide Home Loans, Ins., 27 NY3d 616, 623-624 [2016], citing CPLR 4503 [a] [1].) The privilege exists to enable clients to confide fully and freely in their attorneys, thereby furthering their effective representation. (See Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62, 67-68 [1980].)

At the same time, because the attorney-client privilege impedes the "truth-finding process" (Matter of Priest, 51 NY2d at 68), it must be narrowly construed. (See Spectrum, 78 NY2d at 377-378, citing Rossi v Blue Cross & Blue Shield of Greater New York, 73 NY2d 588, 593 [1989].) Determining whether a given communication comes within the scope of the privilege "is necessarily a fact-specific determination" (id. at 378), in which the burden is on the party asserting its protection to prove each element (see Ambac, 27 NY3d at 624).

As noted above, six of the emails at issue here are communications between Norman Resnicow and Eric Fidel, Esq., then a junior associate at Fox Horan. The seventh email is between Resnicow and William Brodsky, Esq., a Fox Horan counsel.[FN1] The emails themselves have not been provided to the court for in camera review; the parties have instead rested on their legal arguments and the applicable entries in defendants' privilege log. This court finds those materials sufficient to enable it to render the necessary privilege determinations.

This court concludes that defendants have not established that an attorney-client relationship existed between Resnicow and Fidel or between Resnicow and Brodsky, or that the emails at issue were sent for the purpose of obtaining or providing legal advice. Defendants thus have not shown that any of the seven emails at issue is shielded by the attorney-client privilege. (See e.g. Nacos v Nacos, 124 AD3d 462, 462-463 [1st Dept 2015] [holding that the privilege does not apply if movant does not establish that an attorney-client relationship existed among the parties.) The emails must be produced to plaintiff.

I. Whether the Emails at Issue Were Sent Between Attorney and Client

As its name reflects, the attorney-client privilege protects only communications that are sent in the context of an established attorney-client relationship. (See Priest, 51 NY2d at 68.) Although the relationship between attorney and client is contractual, a formal written agreement or payment of fees is not required. (See Pellegrino v Oppenheimer & Co., 49 AD3d 94, 99 [1st Dept 2008].) Rather, absent a written agreement, a court must consider "the words and actions of [*3]the parties to ascertain if an attorney-client relationship was formed." (C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [3d Dept 1995].) In conducting this assessment, an attorney's general statement that a party was a client, without more, is insufficient to demonstrate the relationship. (See Priest, 51 NY2d at 70).

Defendants have not shown that Resnicow entered into an attorney-client relationship either with Fidel or with Brodsky. There are no formal indicia of an attorney-client relationship, such as a letter of engagement or a retainer agreement. No fees were paid. Neither Fidel nor Brodsky has ever appeared on behalf of Resnicow in this action or any related matter. Neither Fidel's name nor Brodsky's name is on any of defendants' filings in this action. Defendants' privilege log does not identify any fact or document that might indicate that an attorney-client relationship existed. Nor, for that matter, can this court imagine a state of the world in which Fidel or Brodsky could be subjected to a legal-malpractice claim arising from assistance they provided Norman Resnicow—as would be possible were Fidel or Brodsky indeed acting as Resnicow's attorney. (See Cusack v Greenberg Traurig, LLP, 109 AD3d 747, 747 [1st Dep't 2013] [affirming dismissal of legal-malpractice claim for lack of an attorney-client relationship].)

In short, defendants have not offered any independent fact, beyond Norman Resnicow's own conclusory statements, to demonstrate that an attorney-client relationship did exist between Resnicow and Fidel or Resnicow and Brodsky. (See Priest, 51 NY2d at 70 [requiring introduction of independent facts to prove attorney-client relationship].)

Defendants misplace their reliance on 1050 Tenants Corp. v Lapidus (12 Misc 3d 1118 [Civ Ct, NY County 2006]). Lapidus treated work by a law-firm associate on a partner's personal litigation with a third party as protected by the attorney-client privilege (albeit finding a waiver of the privilege on the facts of the case). But the privilege-related dispute in Lapidus centered around a formal settlement agreement that had been signed by the associate for the partner when the associate was appearing in court on the partner's behalf. (See id. at 1120-1124.) Neither of those circumstances is present here.

In Stock v. Schnader Harrison Segal & Lewis LLP (142 AD3d 210 [1st Dept 2016]), also cited by defendants, the communications at issue were between attorneys at a firm and their law firm's in-house counsel, concerning the attorneys' ethical obligations in representing a firm client. Defendants have not introduced facts establishing that either Brodsky or Fidel was acting as in-house counsel for Fox Horan in speaking with Norman Resnicow; or that Resnicow was somehow otherwise a client of the firm.[FN2] (Cf. Stock, 142 AD3d at 213-215.)

No attorney-client relationship existed between Norman Resnicow and the other Fox [*4]Horan attorneys whom he emailed. The privilege thus does not shield the seven emails at issue.

II. Whether the Emails at Issue Were Sent to Get or Give Legal Advice

Although this court's conclusion that Norman Resnicow was not the client of either Fidel or Brodsky is sufficient to resolve the attorney-client-privilege issue here, for clarity the court addresses the additional question whether these emails sought legal advice. The privilege may apply to client communications with an attorney only if the communications were made for the purpose of obtaining or providing legal advice. (See Rossi, 73 NY2d at 593.)

Defendants have not established that Resnicow's emails with Fidel were for that purpose. (See Spectrum, 78 NY2d at 379-380 [discussing what it means to seek legal advice].) This was not an instance in which a client confided in his attorney to get the attorney's professional advice, assistance, or input. Rather, the record indicates that Fidel, a far more junior attorney than Resnicow, was simply performing a specific assigned task for him. In essence, Resnicow was obtaining free background research from a firm associate on a personal legal matter. Indeed, defendants' privilege log regarding their communications references only basic legal concepts, none of which specifically related to and integrated the facts of this case—as one would expect were Fidel providing legal advice to Resnicow.[FN3]

With respect to the Resnicow-Brodsky email, defendants suggest that Resnicow was engaging in a more substantive conversation with Brodsky—a much more senior and experienced lawyer than Fidel—about Resnicow's litigation strategy in this action. And the timing of the Brodsky email, relative to the Fidel emails, is consistent with this suggestion. But defendants have not provided the email itself for this court's review; and inference and conjecture about the email's substance based on the limited information appearing in the privilege log is not enough. Defendants have not, on this record, met their burden to show that this element of the privilege has been satisfied. Regardless, whether or not the email from Resnicow to Brodsky was sent for the purpose of obtaining legal advice, for the reasons discussed above it was not sent between client and attorney. It therefore still would not come within the privilege.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that defendants must within 14 days produce to plaintiff the email between Norman Resnicow and William Brodsky that defendants previously withheld as privileged.

DATE 7/7/2021 Footnotes

Footnote 1:Defendants' privilege log suggests, but does not expressly indicate, that the emails were sent to and from Fidel and Brodsky on their Fox Horan email accounts.

Footnote 2:Similarly, in United States v Rowe (96 F3d 1294, 1296 [9th Cir 1996]), the court rested its ruling about the existence of an attorney-client relationship on the conclusion that the associates in that case were "assigned . . . to perform services on behalf of the firm," and therefore "were, effectively, in-house counsel." That is not the case here.

Footnote 3:Plaintiff also argues that the privilege does not shield the Resnicow-Fidel emails for the additional reason that Resnicow's secretary at Fox Horan was copied on two of the six emails. Given this court's determination on multiple other grounds that the Resnicow-Fidel emails must be produced, the court need not and does not reach this issue.

MORE ON "BAD NEIGHBORS" - THE HIGH COST OF LITIGATING WITH THE RICH AND FAMOUS

Theroux v. RESNICOW, 2021 NY Slip Op 21146 - NY: Supreme Court May 27, 2021

"Pryor Cashman LLP, New York, NY (Bryan T. Mohler of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow.

GERALD LEBOVITS, J.

Plaintiff Justin Theroux and defendants Norman and Barbara Resnicow are neighbors in a Manhattan co-op apartment building. This action arises from the years-long quarrel between them. Theroux has alleged that the Resnicows' course of conduct during that quarrel constituted a private nuisance that harmed the value of Theroux's apartment; and he has also alleged that conduct by Norman Resnicow impaired and delayed renovation projects occurring on the premises of Theroux's apartment, forcing Theroux to incur added renovation costs.

As part of discovery in the action, the Resnicows have on multiple occasions asked Theroux to specify further the nature and extent of each element of his claimed damages. Theroux thus far has refused. Theroux's position has been, in essence, that providing the requested specificity likely would entail obtaining the opinion of an expert, and that it would be premature to require Theroux to obtain and disclose an expert's opinion about his damages in the middle of paper discovery. This court previously accepted this argument at multiple status conferences based on the status of discovery at that time. (See e.g. NYSCEF No. 311 at 2-3 [September 2020 status conference order].)

At the most recent discovery conference in this action, held on May 17, 2021, this issue relating to Theroux's claimed damages recurred. This court concluded at the conference that given the progress made in discovery, it would now be appropriate to set a deadline for Theroux to provide an expert disclosure identifying in more detail the different components (and extent) of Theroux's damages; and that the disclosure should be provided by the time Theroux files his note of issue.^[1]

That aspect of the expert-discovery issue is comparatively straightforward. The difficulty lies instead in the question whether this court may, under CPLR 3126, impose consequences at the summary-judgment stage for any failure by Theroux to meet that expert-report deadline. At this court's request, the parties submitted letter briefing on this issue. (See NYSCEF Nos. 382-386.) This court concludes that a court retains discretion to impose discovery sanctions at summary judgment for failure to comply with court-ordered deadlines for expert discovery. Under the circumstances of this action—particularly the extent to which itemization and specification of Theroux's damages has now been a contested issue in discovery for well over a year—this court further concludes that if Theroux has not provided an expert disclosure regarding damages by the time he files his note of issue, he may not rely on a damages expert at summary judgment.

DISCUSSION

I. Whether This Court May Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

Whether this court may preclude Theroux from offering an expert affidavit at summary judgment depends on the interplay among three CPLR provisions. CPLR 3101(d)(1)(i), governing expert disclosures, does not itself set a deadline for when those disclosures must be made. But this court has authority to issue orders setting expert-discovery deadlines beyond those imposed by the CPLR; and under CPLR 3126, this court has discretion to impose a range of sanctions for failure "to obey an order for disclosure." CPLR 3212 provides, though, that "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101(d)(1)(i)] was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].)

The question, then, is whether this clause of CPLR 3212(b) eliminates this court's discretion under CPLR 3126 to preclude a party from submitting expert evidence at summary judgment due to the party's failure to comply with a court-ordered deadline for expert discovery. This court concludes that the language of CPLR 3212(b) does not oust that discretion.

A. The Text of the 2015 Amendment to CPLR 3212(b)

The Legislature amended CPLR 3212(b) to add the clause at issue only in 2015. As a result, there is a dearth of authority on the question. The parties have not provided, and this court's research has not uncovered, any appellate decision directly addressing the scope of this clause.^[2]

At most, a 2018 decision of the Appellate Division, Third Department, held that a trial court providently exercised its discretion in declining to consider expert affidavits offered by a party at summary judgment, in a case where the party had not filed its CPLR 3101(d)(1)(i) expert disclosures until more than a year after the deadline set by the trial court. (See Colucci v Stuyvesant Plaza, Inc., 157 AD3d 1095, 1098-1099 [3d Dept 2018].^[3]) On the one hand, Colucci would seem to rest on an implicit conclusion by the Third Department that the trial court still had discretion to refuse to consider expert affidavits as a sanction for missing a court-ordered disclosure deadline. (See Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:29A, Paragraph 1, Subparagraph (i), Subdivision I [noting this point].) On the other hand, this (potential) basis for the Colucci Court's holding was entirely implicit: the Third Department's decision did not discuss the 2015 amendment to CPLR 3212(b) or the limits that the amendment places (or does not place) on trial-court discretion at summary judgment. This court is skeptical in these circumstances that Colucci should be regarded as necessarily settling the matter, and therefore considers CPLR 3212(b)'s scope afresh for itself.

This court concludes as an initial matter that the relevant clause of CPLR 3212(b) is ambiguous. One could potentially read this language broadly, as providing that a party's failure to provide an expert disclosure in advance of its summary judgment papers is never an acceptable ground for a trial court to decline to consider the expert affidavit at summary judgment—including in scenarios where a court rule or court order had expressly required the party to provide that disclosure in advance. (See Framan Mechanical, 2019 NY Slip Op 50583[U], at *4-*5 [advancing a version of this interpretation].^[4])

A narrower reading, though, also is feasible, under which CPLR 3212(b) bars only certain reasons for a court's refusal to consider expert evidence. That is, the relevant language states that a court shall not refuse to consider the evidence "because an expert exchange" under CPLR 3101(d) "was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].) On this interpretation, a party's delay alone (and thus the party's resultant failure to give advance notice of its intent to rely on an expert at summary judgment) is not a proper basis for the court to refuse to consider the party's expert evidence. By the same token, CPLR 3212(b) would leave intact the court's discretion to exclude that evidence for some other reason—such as the party's failure to comply with court-ordered deadlines.

B. The History of the 2015 Amendment to CPLR 3212(b)

The legislative history of the 2015 amendment to CPLR 3212(b) provides important insight on how to resolve this ambiguity.

The impetus for the amendment was a series of decisions of the First and Second Departments of the Appellate Division, holding that trial courts had discretion to—or perhaps were required to—disregard expert affidavits at summary judgment if the proponents of those affidavits had not served expert disclosures prior to the filing of the note of issue.^[5] In 2015, the Chief Administrative Judge's Civil Practice Advisory Committee concluded in its annual report that these decisions were questionable on multiple grounds and should be legislatively overruled.^[6]

The Advisory Committee report noted that courts had long tied expert disclosures under CPLR 3101(d)(1)(i) to "the date set for trial of an action or proceeding," not to the completion of pretrial discovery (as marked by the filing of the note of issue and certificate of readiness). (Advisory Committee Report at 27.) The Committee criticized the Appellate Division decisions at issue for "impos[ing] a temporal requirement for noticing expert witnesses" that does not appear in the CPLR, thereby, "in effect, preclud[ing] otherwise admissible expert testimony." (Id.) And the Committee expressed concern about the potential for confusion of practitioners forced not only to navigate potentially conflicting holdings on exclusion of expert testimony, but also the "multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure." (Id.)

The Advisory Committee therefore recommended that CPLR 3212(b) should be amended to provide "that a party's right to submit an expert affidavit" at summary judgment "would not be affected by whether or not the party made disclosure of the expert before submitting the affidavit." (Id. at 28.) The Advisory Committee's proposed amendment was then introduced in the Legislature at the request of the Chief Administrative Judge, and enacted as introduced. (See Bill Jacket, L 2015, ch 529, at 6.^[7])

C. Considering the 2015 Amendment's Scope in Light of its Text and History

The Advisory Committee's report is thus entitled to great weight in considering the mischiefs at which the 2015 amendment was aimed, and thus the appropriate scope of the amendment's ambiguous language.

The report reflects that the Committee's concern lay chiefly with timing—with appellate decisions that limited a party's ability to rely on an expert at summary judgment merely because the expert had not been disclosed during pretrial discovery. The Committee had little to say, on the other hand, about whether it would be appropriate (or inappropriate) for a court instead to preclude a party from introducing expert evidence at summary judgment because the party had flouted a specific court-ordered disclosure deadline.^[8] There is thus little reason to interpret the 2015 amendment (prompted by the Committee's recommendation) as removing a court's discretion to disregard an expert affidavit in the latter scenario.^[9]

Permitting exclusion of an expert affidavit for noncompliance with a court order also would be consistent with the Committee's other stated concerns and objectives, as well.

Courts have power to set deadlines for pretrial discovery and to impose consequences when those deadlines are not met. Excluding an expert affidavit for missing a court-ordered deadline for expert disclosure would not engraft an atextual temporal limitation into CPLR 3101(d)(1)(i) any more than would, for example, precluding documentary evidence under CPLR 3126 for failure to comply with court-ordered deadlines for producing documents under CPLR 3120.

Additionally, entry of a court order (such as a conference order) that sets specific pretrial deadlines for service of CPLR 3101(d) disclosures generally occurs only when the parties have already agreed that the circumstances of the particular case warrant providing fuller expert discovery well in advance of the note of issue filing and summary-judgment briefing—or where the parties have disagreed on that point and the court concludes that expert disclosures are needed at that stage of the litigation. This more case-specific treatment addresses the Advisory Committee's concern that CPLR 3101(d) disclosures are a trial matter that should not be categorically required to be dealt with in pretrial discovery. (See Advisory Committee Report at 27.)

Further, a court order setting expert-disclosure deadlines also will put a party on notice not only of what it must do, but that failure to comply risks consequences such as preclusion of evidence. And court orders imposing stern sanctions such as preclusion usually are the culmination of repeated discovery disagreements between the parties leading to judicial intervention(s). Preclusion orders issued during pretrial discovery are generally not bolts from the blue.

Relatedly, reading broadly the relevant clause of CPLR 3212(b) would foreclose a trial court from taking steps to enforce its own discovery orders—if, and only if, those orders set deadlines for service of expert disclosures. Indeed, that would be true even in a scenario in which the court's deadline-setting order was resolving a meritorious motion on notice to compel discovery. The text of the 2015 amendment to CPLR 3212(b) does not require this anomalous result. Nor does anything in the amendment's history even suggest that the Legislature (or the Advisory Committee) had this result in mind.

II. Whether This Court Should Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

As noted at the outset, this court concludes that Theroux must, by the time he files his note of issue, provide a CPLR 3101(d)(1)(i) disclosure for any damages expert that he intends to retain and rely upon at summary judgment. And, for the reasons given above, this court further concludes that it has discretion to refuse to consider an expert affidavit explaining and supporting Theroux's claimed damages, should Theroux not comply with this disclosure deadline. The question remains, though, whether imposing that discovery sanction would be an appropriate exercise of this court's discretion. The court concludes that it would.

The issue on which the Resnicows are seeking further disclosure from Theroux (on which Theroux has represented he will be relying on an expert's opinion) goes to the core of Theroux's case, namely what his claimed damages are—how much money he believes necessary to redress his injuries, in which categories, for which reasons. Given the significance of this information to the action, the Resnicows have long been persistent (indeed, vehement) in seeking this information from Theroux, and in seeking judicial intervention to compel Theroux to produce the information when he refused the Resnicows' requests. And this court's directive to Theroux affords him meaningful time (at present, nearly five months) to consider whether to retain an expert or experts and, should Theroux do so, to provide CPLR 3101(d)(1)(i) disclosures.

Given the importance of the requested expert disclosures to this case, and the amount of time that Theroux has to provide the disclosures, this court concludes that should Theroux fail without good cause to provide the disclosures by his deadline to file the note of issue, he will be precluded from relying at summary judgment on expert affidavits relating to damages. Any such preclusion would not extend, however, to use of expert evidence at a trial of this action, should trial ultimately be required. The issue of admissibility of expert testimony at trial would instead be considered anew at that point under CPLR 3101(d)(1).

[1] Given the status of discovery and the parties' schedule for taking the remaining depositions, as discussed in the recent conference the note-of-issue deadline will be extended through October 15, 2021.

[2] Indeed, this court is aware only of a single trial-court decision directly discussing the issue. (See Framan Mech., Inc. v Dormitory Auth. of the State of NY, 2019 NY Slip Op 50583[U] [Sup Ct, Albany County Mar. 7, 2019].)

[3] Cf. Washington v. Trustees of the M.E. Church of Livingston Manor (162 AD3d 1368, 1369 [3d Dept 2018] [affirming trial court's decision to consider plaintiff's expert affidavit at summary judgment, without reaching defendant's argument that the expert affidavit should have been excluded due to plaintiff's asserted noncompliance with trial-court discovery orders]; Barr v Liddle & Robertson, L.L.P. (2018 NY Slip Op 33113[U], at *2 [Sup Ct, NY County Dec. 5, 2018] [rejecting defendant's argument that plaintiff should be precluded from using an expert report at summary judgment for failure to meet expert-disclosure deadline, and deciding as an act of discretion to consider the expert report]).

[4] The decision in Framan Mechnical held that the Commercial Division rule in the case, which imposed preclusion for failure to comply with the rule's deadlines for expert disclosure, had to be "read in harmony with the statutory law enacted by the State Legislature," namely CPLR 3212(b). (2019 NY Slip Op 50583[U], at *5.) The decision did not consider in depth the proper scope of the relevant clause of CPLR 3212(b). Nor did it have occasion to address the issue here: whether the same result obtains should a court preclude expert evidence at summary judgment for failure to comply deadlines set out in a discovery order.

[5] See e.g. DeSimone v City of NY (121 AD3d 420, 421 [1st Dept 2014] [affirming trial court's discretionary decision to refuse to consider expert evidence because disclosure was not submitted until after filing of the note of issue]); Rivers v Birnbaum (102 AD3d 26, 39-43 [2d Dept 2012] [holding trial court had discretion to consider or disregard expert evidence where disclosure is filed after the note of issue, and properly exercised discretion to consider evidence]); Garcia v City of NY (98 AD3d 857, 858 [1st Dept 2012] [holding that trial court abused its discretion in considering expert affidavit where expert disclosure was not filed prior to note of issue despite longstanding demand for disclosure]); Construction by Singletree, Inc. v Lowe (55 AD3d 861, 863 [2d Dept 2008] [holding that trial court properly exercised its discretion to refuse to consider expert affidavit where expert disclosures and evidence were not served until after filing of the note of issue]).

[6] See Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York 25-28 (2015) (Advisory Committee Report), available at https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2015-CivilPractice-ADV-Report.pdf (last accessed May 26, 2021).

[7] This bill jacket may be found on the Bill Jackets page of the New York State Archives website, https://digitalcollections.archives.nysed.gov/index.php/Detail/collections/7782 (last accessed May 24, 2021). The analysis of the amendment in the bill jacket by its proponents is largely drawn verbatim from the Advisory Committee's analysis. (See Bill Jacket at 6-8, 12-14.)

[8] In Rivers v Birnbaum, the Second Department specifically emphasized a trial court's authority to "impose a specific deadline . . . for the disclosure of experts to be used in support of a motion for summary judgment," and noted that its holding in the case was not intended to call into question the court's "discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline.' (102 AD3d at 41-42.) The Advisory Committee report, though discussing other aspects of Rivers, did not mention this passage of the decision. Although perhaps not compelling, standing alone, the absence of discussion of the issue in the report is at least a small point in favor of this court's conclusion here.

[9] This court need not, and does not, address the distinct question of whether a court may properly preclude a party from relying on an expert affidavit at summary judgment as a sanction for failing to comply with a local court rule setting a general deadline for expert disclosures, such as the Commercial Division rule at issue in Framan Mechanical. (See 2019 NY Slip Op 505"