A judge last week refused to accept and sign “crispy, water-damaged papers” from a small Brooklyn firm that had been caught, like many solos and small firms, in Hurricane Sandy.
Brooklyn Supreme Court Justice Debra Silber (See Profile) said in her response to an order to show cause for pre-action discovery from Bukh & Associates in Sheepshead Bay that she recognized the firm’s “significant hardship” from the storm, and the court had made “every effort” to grant the “indulgence” that the firm sought. But the judge noted that the papers “are difficult to read, and some passages are impossible to read.”
The seven-attorney firm was hit hard by Sandy. Its basement, where many files were stored, was destroyed as water rose to the ceiling, said firm principal Arkady Bukh.
About 40 percent of his office in a two-story house was flooded, and his insurance company said it is “highly unlikely” he can recover the loss.
“My understanding is that the damage will be in the hundreds of thousands of dollars,” he said. “It’s hard, we’re fighting and we’re working. I feel pretty bad, what I can I do?”
Parts of office were a “total mess” after the storm, he said.
“The condition is bad. We’re talking about the humidity. We’re talking about the smell. We’re talking about the mold. We’re talking about the whole nine yards,” he said.
After the six to eight feet of water receded, the office staff began sorting through files—”years and years of work”—to see what was salvageable and which files had been electronically scanned before the storm hit.
Bukh said he is grateful to have the electronic backup. Many law firms, he said, were not as fortunate.
It’s difficult to determine now how many files were damaged because some floated from one area of the building to another when the waters rushed in, Bukh said.
Bukh & Associates focuses on immigration law as well as criminal and matrimonial matters. Some of the damaged files contained original documents, such as immigration cases with passports, certificates from foreign countries.
“It’s a huge problem,” he said.
Bukh said he feels he can’t ask clients to pay again to recreate documents that were destroyed.
“I can’t sell the position to clients [to pay again] for something that was already done,” he said. “We have to swallow the loss.”
He said his firm ordinarily generates about $1.5 million a year in revenue.
“I wouldn’t be surprised if we lose 30 percent of our income,” he said.
Bukh said that most of the damaged files are from closed cases. Other than the papers rebuffed by Silber, he said, no other damaged papers have been submitted to a court.
Associate Antony Lembersky said he thought the papers reviewed by Silber “were still readable” when they were filed.
Lembersky said the court told a firm paralegal that the papers would be accepted if an attorney drafted an affirmation explaining why they were damaged. His firm wouldn’t have bothered filing the papers if it knew in advance they weren’t suitable, he said.
The papers at issue were an order to show cause filed by Bukh & Associates in its effort to identify the source of allegedly defamatory comments about the firm that were posted on the website of Ratingz Inc., a California company.
Silber’s decision does not include the name of the firm, but the Law Journal determined it from other records.
The judge noted in Doe v. Ratingz, 20786/2012, that the firm’s papers were first rejected by the clerk for technical reasons. Sandy hit before revised papers, updated to comply with the clerk’s comments, could be filed.
“Petitioners’ counsel now seeks the Court’s indulgence, and requests us to accept and sign the now crispy, water-damaged papers submitted,” Silber said. “Recognizing that counsel’s office sustained significant hardship from the storm, the court has made every effort to do so.”
The flooded first-floor offices of Bukh & Associates.
She added, “However, the court notes that the papers are difficult to read, and some passages are impossible to read. Further, both petitioner’s…affidavit and counsel’s affirmation are missing at least one page each, and it is possible that Exhibit A is also incomplete.”
Silber observed that pre-action discovery is allowed only where the party seeking disclosure “has demonstrated both a meritorious cause of action and the materiality and necessity of the information sought.”
“In the instant matter, the issue is that the papers submitted herein may or may not meet” the requirements, she wrote, “but they are not complete. On the papers submitted, a substantive conclusion cannot be reached.
“The affirmation, affidavit and petition as submitted are not specific enough,” she wrote. Even if the papers were complete and made a case for defamation, she said, it would still be improper for her to sign the attorney’s order to show cause as submitted.
“While the court is sympathetic to the plight of petitioners’ counsel as a result of the storm, the papers as submitted are very faded,” and will not be legible in the clerk’s minutes when scanned, copied and served on the respondent, she said.
“The missing pages further compound this problem,” she added.
Several court employees in flood-affected areas said they had not seen filings that include waterlogged papers.
David Bookstaver, a spokesman for the Unified Court System, said he wasn’t aware of similar situations, but that generally “judges have been very accommodating to litigants and attorneys that have Hurricane Sandy issues.”
Silber granted the Bukh firm leave to file another copy of its proposed order, which the firm said it plans to do.
@|Christine Simmons can be contacted at email@example.com.