ADDITIONAL CASES Carnegie Dental P.C., Jack Schwartz, and Susan Schwartz, Plaintiffs v. Veronica Rebustillo and Diane Krasne, Defendants; Third-Party 595415/2023 The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63, 64 were read on this motion to/for ENFORCE/EXEC JUDGMENT OR ORDER. The following e-filed documents, listed by NYSCEF document number (Motion 003) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS. DECISION + ORDER ON MOTION1 Plaintiffs Constantina Bacopoulou DDS PC and Constantina Bacopoulou seek damages arising from defendants’ alleged misconduct following the February 2020 sale of the assets of defendants’ dental practice to plaintiffs. Plaintiffs allege breach of contract for which plaintiffs seek $900,000 in damages, breach of the covenant of good faith and fair dealing, breach of duty of loyalty, faithless employee, and defamation per se. In motion seq. no. 002, defendants Carnegie Dental PC, Jack Schwartz and Susan Schwartz move for an order directing the (i) adoption of defendants’ proposed questions to be used by the neutral surveyor during the surveyor’s interviews, including those questions that were mutually agreed upon by the parties and the one disputed question proposed by defendants, and (ii) exclusion of plaintiffs disputed proposed questions from the surveyor’s interviews. In motion seq. no. 003, plaintiffs move (1) pursuant to CPLR 2304 to quash the nonparty subpoenas served on Bronxville Dental Studio and Dr. Anthony Fiore, DDS (Subpoenas) or in the alternative, for the entry of a protective order pursuant to CPLR 3103 to prevent defendants’ from engaging in abusive discovery tactics; (2) sanction defendants and their counsel for their improper, uncivil and unethical behavior throughout the course of discovery in this action; and (3) award plaintiffs their costs and attorneys’ fees for having to make this motion. Motion Seq. No. 002 (Neutral Surveyor’s Questions) This motion is denied. On the record on May 18, 2023, the court directed the parties to speak to the company that they hired to conduct the survey as to whether the disputed questions shall be open ended or give the former patients options for answers. On May 24, 2023, the parties informed the court that they have agreed to the questions suggested by the neutral surveyor. (See NYSCEF 89, Letter to Court.) Motion Seq. No. 003 Quash Subpoenas Defendants subpoenaed Dr. Fiore and Bronxville Dental, dental practices that plaintiffs purchased eight and ten years ago. Plaintiffs moved to quash based on the length of time that has passed since plaintiffs purchased those practices. However, the court agrees with defendants that such information could be relevant to the defamation claim or lead to relevant information as to plaintiffs’ business skills at absorbing dental practices — a topic of the alleged defamatory statements. On the record on May 18, 2023, the court granted plaintiffs’ motion to quash the subpoenas due to defendants’ 12-day delay of service of subpoenas on plaintiffs’ counsel to the extent that the subpoenas shall be re-served. Meanwhile, defense counsel informed the court that since the argument, counsel received a response from Bronxville Dental. (NYSCEF 90, May 24, 2023 letter.) Defense counsel states that he has not reviewed the documents and will return the documents with the re-served updated subpoena unless the court directs otherwise, or plaintiffs agree defense counsel can review. (Id.) Upon reflection, the court finds that re-service is a hollow exercise, and the appropriate penalty is to direct defendants to pay for this motion. Defendants may review the documents after they are shared with plaintiffs. Within 10 days of the date of this order, plaintiffs shall submit to the court an affirmation of services allocating a portion of the cost of the making of this motion to quash the subpoenas. Otherwise waived. If the parties cannot agree to an amount to be paid by defendants, then the court shall review the affirmation and determine the appropriate amount to be paid. Sanctions Plaintiffs also move pursuant to 22 NYCRR 130-1.1(a) to sanction defendants and defendants’ counsel for: “(1) refusing to abide by court ordered discovery deadlines; (2) engaging in dilatory, bad-faith conduct during the discovery process; (3) serving multiple frivolous non-party subpoenas; (4) filing a frivolous third-party complaint against two key witnesses in this action in an effort to stifle their testimony; and (5) refusing to agree to things as elementary as a confidentiality stipulation and ESI stipulation in an effort to drive up the costs of this litigation. Further, Defendants and their counsel recently egregiously obstructed the deposition of a non-party witness by repeatedly interjecting speaking objections and colloquy intended to coach the witness, cutting off the witness’ answers, and seeking to intimidate opposing counsel with snide remarks and uncivil attacks on counsel’s character and competence to conduct the deposition.” (NYSCEF 78, Plaintiffs’ Memo of Law at 19.) The court begins with the deposition which is by far the most egregious conduct. Plaintiffs subpoenaed Roger Bronstein, DDS, whose deposition was taken for a total of 9 hours2 on March 23, 2023 (10 am to 4 pm with a break for lunch) and April 24, 2023 (10 am to 3 pm with a break for lunch). (NYSCEF 75, Bronstein Depo tr at 1, 115:8-24, 285, 430-431.) Bronstein and Schwartz met in about 1980, having had contiguous dental practices on 58th Street; Bronstein considered himself a mentor and confidante to Schwartz. (Id. at 59:13-14, 62:17-22.) Schwartz referred patients to Bronstein for periodontal work but that stopped ten years ago. (Id. at 77:6-78:5.) While the wives of Drs. Bronstein and Schwartz are friends, Bronstein considered Schwartz a colleague; they have not seen each other in five years. (Id. at 291:9-21.) However, over one year ago, when Schwartz asked Bronstein for a character reference for this litigation, Bronstein obliged. (See id. at 32:13-24, 35:8-22; NYSCEF _,3 Oct. 2, 2022 Bronstein Letter.) Plaintiffs’ motion for sanctions against Arthur Scott Porter, Esq, attorney for defendants, is granted. Porter’s statements at Bronstein’s deposition were clear violations of the Rules of Professional Conduct 8.4(g).4 (See e.g., NYSCEF 75, Bronstein Depo tr at 23:5-9 ["Why don't you ask these questions properly?…That's your job as a professional], 23:23-25 ["Call the judge if you are upset"], 154:13-156:19 [accusing Stallone of tricking the witness and yelling], 229:25-230:5 [explaining to the witness how a deposition works remarking "this is really how we do it," apparently in contrast to how Stallone took the direct examination of the witness], 297:14-298:22 [challenging Stallone's understanding of how to take a deposition and accusing her of "putting on an act"], 448:24-449:4 [accusing Stallone of playing games], 452:25-453:9 [calling Stallone obnoxious], 458:5-14 [accusing Stallone of yelling at witness], 468:21-469:13 [accusing Stallone of interrupting him and calling Stallone obnoxious, again, directing Stallone to calm down and admonishing Stallone that she "needs a lecture"], 480:15-16 ["You have no idea what you're talking about"], 483:10-11 [accusing Stallone of asking silly questions], 512:6-12 [when Stallone asked if making these comments because she is a woman, Porter answered "Yes"].) Porter’s inappropriate statements were admittedly motivated by Stallone’s gender. (Id. at 512:6-9.) Such unprofessional conduct is sanctionable. (See Principe v. Assay Partners, 154 Misc 2d 702, 704 [Sup Ct, NY County 1992] [finding unprofessional conduct warranting sanctions where a male attorney stated to a female attorney: "I don't have to talk to you, little lady"; "[t]ell that little mouse over there to pipe down”; “[w]hat do you know, young girl”; “[b]e quiet, little girl”; and “[g]o away, little girl”].) Porter’s admission clarifies the context of his otherwise inappropriate statements permeating the nine-hour deposition as deliberately offensive and gender based when in context. In addition, Porter’s conduct is sanctionable because he clearly and repeatedly violated Commercial Division rules barring speaking objections. (NYSCEF 75, Bronstein depotr at 106:5-14, 109:6-111:2, 111:14-112:2, 151:23-152:21, 154:13-156:19, 446:4-21, 448:3-18, 491:14-17, 492:18-493:12, 494:11-18, 499:11-16, 500:4-21.) He directed the witness not to answer questions. (Id. at 174:11-12, 483:6-7.) He also repeatedly cut off the witness. (See e.g. Id. at 270:16-20, 295:17-297:13, 403:21-25 [admitting that he cuts off the witness].) However, Stallone contributed to the delay with unnecessary bickering with Porter and engaged in some speaking objections as well. For example, “MR. PORTER: So let’s be clear about this — MS. STALLONE: Stop it, Mr. Porter MR. PORTER: — that means that you’ve lied before. No. You’re tricking him. That means he lied in his letter when he said this is what happened; is that what you’re saying? MS. STALLONE: Mr. Porter, stop it, it’s not your testimony. MR. PORTER: No. It’s not your time to make this man — turn him into a liar, when he is not a liar. MS. STALLONE: Dr. Bronstein, you’re a Harvard grad, you don’t have to take what he is saying seriously. MR. PORTER: Oh, you don’t have to take me seriously? You just accused him of being a liar. His October 2nd letter says these people all made these statements, and now you’re having him say that they didn’t make these statements. You have now turned him into a liar, that’s what you did. MS. STALLONE: What he is doing is making speaking objections to try to coach you. MR. PORTER: I am not trying to coach him. MS. STALLONE: It is completely improper. MR. PORTER: But I can tell you, if you want me to clarify.” (Id. at 485:7-486:16.) Stallone antagonized Porter from the start of the deposition. There was no reason for Stallone to warn Porter against speaking objections since the law and stipulations included such a provision. (Id. contrast with 3:2-4:5 to 8:20-9:14.) Moreover, CPLR 3113 sets forth the procedures for depositions and provides: “(c) Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a nonparty deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.” Section 221.1. Objections at depositions, 22 NYCRR 221.1 provides: “(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the CPLR. (b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.” Later, Stallone directed the witness to ignore Porter (NYSCEF 75, Bronstein Depo tr at 151:12-15) and to not take Porter seriously. (Id. at 485:21-23.) Stallone repeatedly threatened to call the court evolving into a hollow threat. (Id. at 9:5-8, 297:6-9, 298:11-22, 509:22-25, 510:25-511:3, 512:20-21, 513:6-21.) It is clear from the record that lack of civility among attorneys perpetuates scorn for lawyers, the courts, and ultimately the rule of law. “Society at large, and the legal community in particular, is increasingly less tolerant of sharp practices and sharp behavior that verges on harassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil.” (Hon. Lawrence K. Marks, Jeremy Feinberg and Laura Smith, §86:1 Scope note, 4C NY Prac, Com Litig in New York State Courts §86:1 [5th ed.].) During depositions, lawyers are expected to “conduct themselves with dignity and refrain from engaging in acts of rudeness and disrespect.” (Id. §86:16 Discovery-Depositions.) Plaintiffs also seek to sanction Porter for wasting time. However, plaintiffs’ counsel contributed to the time wasting. For example, “MS. STALLONE: Q. Okay. So someone like Jules was certainly more valuable — could have been certainly more valuable to Dr. Schwartz who didn’t know how to do many of these things than to Dr. Bacopoulou who is able to do many of those things; correct? MR. PORTER: Objection to form. Objection, no foundation. It calls for speculation. A. [THE WITNESS] In the interest of the question — MR. PORTER: Doctor, you have to let me object. THE WITNESS: Okay. MS. STALLONE: You did make your objection. You can continue. MR. PORTER: Please don’t interrupt me again, will you counsel. No, I will get my objections on the record, and I will stop listening — you should stop doing what you’re doing. It’s become totally obnoxious. Why don’t you calm down and ask your questions, and when I want to make an objection he’ll wait until I make the objection. That’s how it goes. Okay. MS. STALLONE: Okay. MR. PORTER: So just chill out. Chill out. MS. STALLONE: Thank you for lecturing me — MR. PORTER: You need a lecture. MS. STALLONE: — on the objection that I’m obnoxious for the second time on the record. After you — MR. PORTER: Oh, the name caller of all. Keep going. MS. STALLONE: After you have interrupted this witness multiple times today, you have obstructed this deposition — MR. PORTER: Please just move on. MS. STALLONE: Excuse me? MR. PORTER: Can’t you just move on? MS. STALLONE: Excuse me, I am speaking now. MR. PORTER: You are wasting our time as usual. MS. STALLONE: I think the record will reflect. MR. PORTER: The record will reflect whatever is required. Please move on. MS. STALLONE: Joe, can you please repeat the question that Mr. Porter did not like? MR. PORTER: It’s not that I don’t like the question, it’s an improper question. MS. STALLONE: Joe, please repeat the question. You spent half an hour asking him about Jules. I have the right to — MR. PORTER: Half an hour? Oh, okay another exaggeration.” (NYSCEF 75, Bronstein Depo tr at 468:7-470:21.) Instead of taking her deposition of Bronstein, Stallone antagonized her adversary and engaged in gratuitous colloquy. Making matters worse, she tried to drag the witness and impartial court reporter into the fracas for a determination of whether she was yelling. Unnecessary and childish arguments between both counsel delayed this deposition. Long before Porter appeared in this case, attorneys were not cooperating and wasting the clients’ money and the court’s time. Counsel repeatedly requested conferences with the court because of their inability to cooperate in the very short period of time between the PC Order of July 25, 2022 (NYSCEF 13) and today which is unheard of in Part 48. (NYSCEF ___,5 August 3, 2022 Email to Court [outlining dispute and requesting discovery conference].) Since Covid, Part 48 changed its practice of conferencing in-person all of its cases every 30 to 60 days; conferences are now held as needed. In addition, the law clerk reports to the court that the communications in this case have been unnecessarily contentious over serial minor issues that counsel ought to work out. (See e.g. NYSCEF 16, Sept. 25, 2022 Conference Order.) The court notes that Porter was not present for these exchanges prior to December 21, 2022. (NYSCEF 29 and 30, Substitution.) Finally, based on plaintiffs’ objections that defendants fail to abide by court ordered discovery deadlines, engage in dilatory, bad-faith conduct during the discovery process and to defendants’ document production, the court concludes that the best course of action is to appoint a special discovery master who can give the attorneys the time their repeated and excessive requests for attention and objections demand. For example, a document was admittedly used to cross Dr. Bronstein, but was not previously produced to plaintiffs. (NYSCEF 75, Bronstein Depo. tr. at 337:12-339:2.) Defendants allegedly produced 145 blank pages or pages with signature blocks. (NYSCEF 88, May 17, 2023 Letter to Court [Plaintiffs' Counsel].) As a result, defendants’ production of 746 document yielded 56 relevant documents. (Id.) Defendants produced screenshots of emails and text messages instead of native files as required by the Commercial Division Rules. (Id.) Such objections require a comprehensive review of the documents, but this court does not have such time to give. Accordingly, it is ORDERED that motion seq. no. 002 is denied; and it is further ORDEERED that motion seq. no. 003 is granted to the extent that defendants are sanctioned for the delayed service of subpoenas and shall pay a portion of the cost of this motion; and it is further ORDERED that motion seq. no. 003 is granted to the extent that defendants are sanctioned and shall pay for the cost of this motion attributable to the deposition; and it is further ORDERED that plaintiffs’ counsel shall submit an affirmation of services and invoices allocated to the portions of this motion regarding the subpoenas and deposition within 10 days of the date of this order or waived. Parties can stipulate to attorneys’ fees within 10 days thereafter. Otherwise, the court will decide the issue.; and it is further ORDERED that Hon. Karla Moskowitz is appointed Special Discovery Master to hear and report, unless the parties stipulate to have the Special Discovery Master hear and determine, to this court on the following individual issues of fact, which are hereby submitted to Special Discovery Master Moskowitz for such purpose: (1) supervision of all discovery and (2) settlement, if the parties wish to engage in settlement negotiations with the assistance of the Special Discovery Master; and it is further ORDERED that the powers of the Special Discovery Master Moskowitz shall not be limited beyond the limitations set forth in the CPLR; and it is further ORDERED that counsel shall file memoranda or other documents, including emails and e-letters, directed to the assigned Special Discovery Master in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the “References” link on the court’s website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further ORDERED that the parties shall meet with the Special Discovery Master forthwith; and it is further ORDERED that the Special Discovery Master shall establish a schedule to get the parties back on track and move discovery along pursuant to that schedule; and it is further ORDERED, that the Special Discovery Master shall notify the court within 20 days of this order as to the cooperation of the parties and a plan; and it is further ORDERED that any motion to confirm or disaffirm the final Report of the Special Discovery Master shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further ORDERED that Judge Moskowitz shall be paid her regular hourly fee by the attorneys Stallone and Porter to be split 25 percent and 75 percent each as a sanction for their conduct. The clients shall not pay this fee. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 20, 2023
