Opinion
9002/08.
Decided November 5, 2010.
SAVAD CHURGIN, Attorneys for Plaintiff/Petitioner, By: Joseph A. Churgin, Esq., Nanuet, New York.
THE ROSS LAW FIRM, Attorneys for Defendants/Respondents, By: Donna Ross, Esq., New York, New York.
ACKERMAN, LEVINE, CULLEN, BRICKMAN LIMMER, LLP, By: Andrew J. Luskin, Esq., Attorneys for Defendants/Respondents, Great Neck, New York.
Defendants/Respondents Sandra Foschi ("Foschi"), Health SOS PT P.C. ("Health P.C."), and Health SOS Realty LLC, Health SOS Realty Babylon LLC and Health SOS Re Management Ardsley LLC ("Defendants") move to reargue and/or renew this Court's Decision Order dated May 18, 2010 (the "May 2010 Decision") because they contend that the Court made its determination on an incomplete record and in denying the motion to disqualify, described Foschi and Donna Ross, her counsel, in an unfavorable light. Plaintiff opposes Defendants' motion.
The Court refers to its May 2010 Decision for a full recitation of the parties' contentions and the basis for this Court's May 2010 Decision which:
(1) denied the motion to the extent it sought the disqualification of Plaintiff's counsel and an award of attorneys' fees;
(2) granted the motion to the extent it sought a return/destruction and suppression from the use at trial of all privileged communications that were transmitted between Foschi and her counsel prior to February 3, 2008.
The Court further suppressed Forward's use at trial e-mails that were sent between Foschi and third parties prior to February 3, 2010 to which Forward had not been cc'd or bc'd.
In essence, Defendants seek a do-over of their prior motion on the grounds that this Court, by requiring that they move by Order to Show Cause and then failing to provide Defendants with the opportunity to submit reply papers, made its determination on the basis of an incomplete record. They request that they be allowed to supplement the prior motion with additional affidavits from the following people:
(1) Sandra Foschi — In her affidavit, Foschi explains why she did not submit an affidavit in her original moving papers — i.e., that her counsel had advised her they had a prima facie case based on Forward having admitted to accessing her e-mails, his counsel having admitted receiving them, and the fact that this Court, at a conference, "distinguished the Blackberry issue from the issues in the disqualification motion during counsels' appearance before the Court" (Affidavit of Sandra Foschi, sworn to July 15, 2010 ["Foschi Aff."] at ¶ 41). The purpose of her affidavit is to show that she did not waive her attorney-client privilege as to the e-mails after February 3, 2008 and instead, tried to protect her e-mails from Forward's access. According to Foschi, Ross responded to her February 3 e-mail by stating that she thought Foschi's accountant, Robert Rich, had an IT contact (Joseph Calabria) that Foschi should seek out and asked Foschi if she had changed her password. Foschi then contacted Rich who contacted his IT person, Calabria, and asked him whether Forward could access Foschi's healthsos e-mails without her password. Based on the incomplete information provided to Calabria ( i.e., Calabria was not advised that Forward was the system administrator who had access to everyone's e-mail and Foschi's password), he responded that so long as Forward did not have her password, her e-mails could not be accessed. This advice was supposedly relayed to Foschi and Foschi avers she "had no reason to doubt Calabria's advice" and that she advised Ross that she had dealt with the matter (Foschi Aff. at ¶¶ 34-35). She further attempts to "clarify" a statement in the February 3, 2008 e-mail that Forward had read her e-mails in the past and had admitted to it by stating that the incident referenced was from the end of 2006/beginning of 2007 when Foschi went out with another man and Forward admitted to seeing their e-mail exchange which Foschi assumed he had seen on her laptop (Foschi Aff. at ¶¶ 37-38). She further attests that she never left her Gmail account open on office computers ( id. at ¶¶ 84, 93) and never gave her password to anyone, which she claims is confirmed by her employee, Kim Ferris, in her affidavit ( id. at ¶ 91). Further, that she accessed her healthsos e-mail exclusively from her laptop and noone had access to it. She explains that the February 3, 2008 e-mail was produced to show that at or about that time, Foschi began suspecting that Forward was monitoring her e-mail and once she knew in March 2008 (after the Blackberry incident) that Forward was accessing her e-mails, Foschi ceased using her healthsos e-mail account and sought help from a private detective and IT specialist to determine how he was accessing her e-mails and shut him down. Despite the Blackberry incident in March 2008 when Foschi saw that Forward had forwarded her privileged e-mails to his counsel, Foschi nevertheless avers that it was not until late July 2009 when Forward produced the privileged e-mails that they had the tangible proof of his access to her e-mails. It was at that point she asked her counsel to bring a motion to disqualify. And it was not until after the disqualification motion that Foschi learned that Forward had also accessed her Gmail account. She claims that Forward knew that Foschi was not computer savvy and he took advantage of her lack of knowledge to set up the GoDaddy accounts in his name so he could access her e-mails and those of her employees. She also avers that "the use of [her] illicitly-obtained communications indisputably gave the plaintiff an[] advantage in the Babylon litigation, caused [her] to incur significant legal fees and ultimately to lose an employee and a potential business partner" (Foschi Aff. at ¶ 14). Foschi also explains the "plant" e-mail by contending that at or about this period of time, Forward was threatening her with bodily injury if she did not pay him at least a million dollars and that because she was upset by Forward's threats and felt helpless, "[t]he plant' idea was an ill-conceived attempt on [Foschi's] part to discover how he was accessing [Foschi's] e-mails so [she] could put a stop to it" (Foschi Aff. at ¶ 61). According to Foschi, both Ross and her other counsel, Christopher Panczner, Esq., after receiving Foschi's e-mail about the plant, advised her against doing further plant e-mails and she claims that she never did another plant e-mail again ( id.). She further offers to provide all of the e-mails Ross maintains from Foschi to prove there were no further plants. Finally, Foschi discusses the IT and private investigator she hired in April 2008 to sweep the Ardsley office for any wiretaps or spyware that had been installed on the computers. She avers that she learned from Calabria how Forward accessed her e-mail through the GoDaddy master account. Foschi also recounts Forward's alleged acts of writing a check to himself from the PC accounts and accessing the LLC's and PC's account information after his termination in September and October 2008.
Foschi recounts an incident in January 2008 when Forward happened to show up at an interview at the Riviera Bakehouse that she had scheduled with a potential applicant for an office manager position. She also avers that around that time Forward had told Rich and Foschi that he knew "everything [Foschi] does" (Foschi Aff. at ¶ 29). Foschi contends that it was these two incidents to which Foschi was referring in her February 3, 2008 e-mail ( id. at ¶ 31).
Again, while not relevant to the May 2010 Decision, since this Court specifically stated that it would assume for the purposes of the motion that with an opportunity to put in a reply, Foschi would have denied all of the material facts surrounding the Blackberry incident (May 2010 Decision at 17, n. 9), Foschi nevertheless explains her version of this incident (Foschi Aff. at ¶ 42-45, 48). The Blackberry itself was evidently not tangible proof since Foschi claims it was almost completely wiped clean and she believes Forward came into her apartment and erased it ( id. at ¶ 70, n16). In any event, based on Foschi's deposition testimony, it appears that she discarded the Blackberry and never provided it to her counsel.
While acknowledging irrelevance to the motion to disqualify, Foschi nevertheless goes into great detail concerning the merits of these litigations (Affidavit of Sandra Foschi, sworn to July 15, 2010 at ¶¶ 15-26) in order to address alleged inaccuracies found in Forward's original opposition affidavit. However, because the merits of these litigations were not relevant to the prior motion and had no impact on this Court's determination, the Court will not review these alleged inaccuracies herein.
(2) Joseph Calabria — Global Technology Director for SapientNitro — the company hired by Foschi in April/May 2008 to ascertain whether and how Forward was accessing Foschi's e-mail account and to shut down his ability to continue to do so. Calabria confirms that in February 2008, after having received incomplete information ( i.e., that Forward was the System Administrator) he advised Rich that if a person doesn't have a password, then he/she should not be able to get into an account.
(3) Patricia Dillon — Director of Administration for Health SOS, P.T.P.C — Dillon attests that Foschi only ever worked from her laptop when at the Babylon PT Center, never gave Dillon her password to access her e-mail, never gave anyone else at Babylon PT Center her password, and she can't imagine that she ever gave her passwords to any other staff member.
(4) Robert Rich — President and sole shareholder of JMW CPA P.C. — Accountant for Health SOS P.T.P.C. and Foschi. Rich attests to fact that in February 2008 they were only suspicious that Forward had been accessing e-mails and he advised Foschi, based on the incomplete information he provided to his IT friend, Calabria, that Forward could not access her e-mails. This advice was mistaken because they did not know that Forward was the system administrator who had Foschi's password. He affirms that it was not until the Blackberry incident in March 2008, that they knew for sure that the e-mails were being accessed. Further, without explaining the basis of his knowledge, Rich avers that it was not until May 2008 that Foschi learned that "Forward had opened the GoDaddy healthsos' e-mail accounts in his own name, not just as administrator, but as the owner, instead of the name of Ms. Foschi or the PC. Ms. Foschi for the first time learned that by opening the e-mail account in his own name, Mr. Forward was able to gain access to all of her personal e-mails using his administrative rights over the account. She had a great deal of difficulty removing Mr. Forward from the accounts and was unable to access them for well over a year or more" (Affidavit of Robert E. Rich, sworn to July 14, 2010 at ¶ 22).
The incomplete information was that Foschi had failed to advise that Forward was the system administrator and had Foschi's password.
(5) Salvattore Marino — President of County Wide Technical Services Inc. — the company hired by Foschi at end of March 2008 to "provide an electronic sweep for illegal eavesdropping devices in [Foschi's] office and car" (Affidavit of Salvattore Marino, sworn to July 13, 2010 ["Marino Aff."] at ¶ 2). He avers that Foschi advised him she believed Forward had access to her personal information and/or e-mail but she didn't know how he was obtaining it and also that Forward was making threats of physical violence against her. He performed a criminal background check on Forward and on April 2, 2008, he performed a sweep to detect illegal eavesdropping devises and checked for cameras at the Ardsley office but found nothing. He further advised Foschi that his company did not do spyware checks on computers and advised her to contact The Spy Shop or an IT person to do the computer check.
(6) Kimberly Ferris — Billing Manager for Health SOS, P.T.P.C. who worked in Ardsley office since October 2007. Purpose of affidavit is to show that Foschi almost always worked off of her laptop but occasionally would use one of the desktop computers at the front desk which were the same ones that Forward and Culpepper used. According to Ferris, when Foschi used an office computer to check her e-mail, she would leave it open if she was standing next to it, but on one occasion Ferris "saw that her Gmail account had popped back up on the computer. To the best of [Ferris'] recollection, this was after she was already gone, and [Ferris] closed the window and signed out for her" (Affidavit of Kimberly Ferris, sworn to July 13, 2010 ["Ferris Aff."] at ¶ 8). She further attests that Foschi never asked her to check her e-mail for her and never gave Ferris her password and to her knowledge, Foschi never gave her password to any other employees.
Ross also submits an affirmation wherein she denies having acted unethically or having attempted to mislead the Court (Affirmation of Donna Ross, Esq. dated July 15, 2010). She reiterates the facts as laid out in Foschi's affidavit. She states that in response to her e-mail to Foschi on February 3, 2008 regarding whether she had changed her password, Foschi advised that she had consulted with Rich and Calabria and reassured Ross that everything had been taken care of. Ross further confirms that there was only one plant e-mail dated March 30 or 31, 2010, which Ross received when she was flying back from Europe where she was an arbitrator in an international arbitration. She affirms that she admonished Foschi for the e-mail and instructed her to stop immediately and no other plant was ever sent. Foschi offers to provide the court with a log and/or copies of all e-mails between Foschi and Ross during this time frame. According to Foschi, the delay in bringing the disqualification motion was tactical because they did not want to move until they had proof (which was provided in the document production in July 2009) that Forward had accessed the e-mails.
In his affirmation in support of motion, Defendants' counsel Andrew J. Luskin, Esq. argues that these affidavits show that:
(i) as of February 2, 2008, Foschi only suspected, but had no specific knowledge that the plaintiff was accessing her e-mails, privileged or otherwise; (ii) Foschi took appropriate action upon such suspicion by making appropriate inquiries to determine if the plaintiff could in fact access her e-mails; (iii) Foschi understood, based on information she received from sources that she thought to be reliable, that the plaintiff could not actually access her e-mails because he did not have her password; (iv) Foschi did not learn until the following month that despite her belief to the contrary, in fact the plaintiff had been accessing her e-mails; (v) Foschi changed her e-mail account and ceased using the compromised account once it was evident to her that the plaintiff was accessing her e-mails; (vi) Foschi hired professionals to help her determine how the plaintiff was accessing her e-mails and to secure her personal and business e-mail accounts and computer system; and (vii) Foschi did not actually plant phony e-mails to lead the plaintiff astray, although she initially considered doing so but was stopped by Ross (Affirmation of Andrew Luskin, Esq. dated July 15, 2010 ["Luskin Aff."] at ¶ 13).
These additional facts, which Defendants contend they were denied the right to include in the record since they had no opportunity to submit a reply, would have changed this Court's prior determination since they show (1) that there was no impropriety going on between Foschi and Ross, and (2) that Foschi did not waive the attorney-client privilege.
In opposition, Plaintiff argues that the six affidavits submitted in this motion could and should have been submitted in Defendants' original moving papers since it was necessary for them to establish
(a) That the communications were protected; (b) what steps Foschi and Ross took to preserve the privilege; (c) What proof if any they had that Forward actually intercepted the communications and; (d) how he did so (Affirmation of Joseph A. Churgin, Esq. dated July 30, 2010 ["Churgin Aff."] at ¶ 6).
Thus, Plaintiff argues that Defendants cannot use the excuse that they were unaware that Plaintiff would raise the issues in his opposition to Defendants' motion in order to reopen their original motion based on these new affidavits.
Plaintiff's counsel further points out that Defendants originally "chose not to submit copies of the allegedly intercepted e-mails to the court or even to specifically refer to them. It was not until after the motion was submitted and upon [Savad's] insistence in a conference, that the defendants were required to submit the e-mails in question for in-camera review. At that point, and only at that point, the true nature of the motion was exposed" (Churgin Aff. at ¶ 8).
Plaintiff requests that the February 3, 2010 e-mail be produced because it was not privileged as it was provided to Rich, the accountant.
As his legal argument, Plaintiff argues that because Defendants' motion is "based upon new matters of fact not previously submitted" and "Defendants do not point to one fact in their prior submission that the court allegedly misapprehended" (Churgin Aff. at ¶ 4), Defendants' motion is not a motion to reargue, but a motion to renew.
Plaintiff further attacks the veracity of Foschi's affidavit since her assertion that the March 30, 2008 e-mail was her only plant is belied by her statement in her March 30, 2008 e-mail to Panczer, which was copied to Ross, that "up until now, I continue to use the e-mail account that he has access to in order to distract him and make him think that I am worried'" (Churgin Aff. at ¶ 10).
With regard to the Blackberry incident, Churgin attaches a copy of Forward's most recent Blackberry bill to show that the account for "this Blackberry, since its inception in 2004 was in the name of Kevin Forward. Health SOS is not mentioned anywhere in the document. Health SOS may have paid monthly bills, but that did not make Health SOS the owner of the phone and it certainly did not give Sandra Foschi any right to take the phone from Kevin Forward and access his e-mails and text messages" (Churgin Aff. at ¶ 12). Plaintiff further disputes Foschi's contention that Ross was unaware that she had taken Forward's Blackberry.
Plaintiff points out that Foschi's affiant — Kimberly Ferris — confirms what Forward had stated in his opposition to the original motion concerning how he accessed Foschi's Gmail account — i.e., that Foschi accessed her e-mail on a company computer and Ferris used that computer later and found Foschi's Gmail account open. That is precisely the manner in which Forward states he read and forward to his counsel Foschi's Gmail e-mails.
In reply, Defendants argue that Plaintiff attempts to blur the time periods by suggesting that as early as February 3, 2008, Foschi not only knew Forward "was accessing her e-mails, but she also launched a sinister plot to mislead him with planted missives" (Reply Affirmation of Andrew J. Luskin, Esq. dated August 5, 2010 at ¶ 14). Defendants argue that Plaintiff has been less than forthright by making the whereabouts of the Blackberry a continued mystery since this issue was addressed at Foschi's deposition wherein she advised that she had disposed of it ( id. at ¶ 16, attaching Foschi Deposition Tr. at 870; 1013-1014). Defendants further argue that contrary to Plaintiff's position that the e-mails involved innocuous matters, "the record shows that a number of Foschi's e-mails involved sensitive, confidential matters involving her dealings and negotiations with Eric Loughman, among other issues" and the "Court cannot conclude with any reasonable certainty that Foschi was not materially prejudiced by the plaintiff's unlawful accessing of Foschi's privileged and confidential e-mails" ( id. at ¶ 17). Finally, Defendants reiterate their request that this Court change its May Decision by suppressing all privileged e-mails — even those after February 3, 2008 — disqualifying Plaintiff's counsel and awarding Defendants their attorneys' fees.
LEGAL DISCUSSION
The crux of Defendants' motion is the following passage from this Court's May 2010 Decision:
Based on an e-mail dated February 3, 2008, Foschi knew at that point (if not sooner) that Forward was accessing her e-mail. Despite this knowledge, she did nothing to prevent him from continuing to access her communications, though she could have readily done so by such obvious measures as opening a new e-mail account with either a new provider or her existing providers, by changing her e-mail passwords on her existing accounts, or by hiring an IT person to remedy the situation. Instead, Foschi and her attorney, Ross, decided to turn the situation to their advantage by creating bogus e-mails on Foschi's healthsos.com account as plants to lead Forward down a garden path ( see e-mail dated March 30, 2008 from Foschi to Ross stating that she "will now forward [Ross] a series of e-mails from the Healthsos.com account as a plant" and e-mail dated March 30, 2008 from Foschi to Chris Panczner, Esq. wherein she states that she "continue[s] to use the e-mail account that [Forward] has access to in order to distract him and make him think that [she] is worried"). The fact that Foschi, assisted by Ross, having thus decided to accept the situation and make affirmative use of it strongly militates against her protestations of invasion of privacy and in favor of a finding of consent, i.e., she decided to allow Forward continued access to her e-mails so that she could feed him false information. Moreover, the fact that Foschi put Ross on notice that their attorney-client communications were being intercepted and that Ross, at a minimum, acquiesced in Foschi's continued use of bogus e-mails to delude Forward, militates strongly against Ross' present arguments about the sanctity of attorney-client communications. Moreover, Ross should have alerted Attorney Savad to the situation and they should have candidly addressed it. That Ross allowed the situation to fester for further months and then profess great outrage in seeking relief from this Court was also entirely unprofessional. Ross allowed this Court to form the impression that the interception of her attorney-client communications was not known until Forward produced documents. She thus failed in her duty of candor to the Court ( see former Code of Professional Responsibility DR 7-102[a][5] [eff. until April 1, 2009); Rule 3.3 of the Rules of Professional Conduct). Moreover, the conduct of Ross and Foschi militates strongly in favor of a conclusion that they were and are using the issue of the e-mails as a means of denying Forward access to counsel of his choosing, bearing in mind that Foschi had made a motion to disqualify Bertolino and Grey Street (which precipitated their withdrawal) and has now made a similar motion directed to the Savad Firm.
Nevertheless, the Court will not disqualify the Savad Firm based on Forward's transgressions. The e-mails are by no means a "blue print" to Plaintiffs' case or Defendants' defense. Militating against disqualification is the fact that Ross and Foschi were well aware of Forward's interception of their e-mails as of February 2008 and took no action to prevent further interception and made no complaint to Attorney Savad or to anyone else. Rather, they decided to permit further interception and use the situation to their own advantage by planting bogus information designed to mislead Forward.
* * *
The actions of Foschi and Ross, in tolerating the interception of their communications by Forward and not complaining about them to Attorney Savad in a timely way, and the antagonism between the parties, and the antagonism between counsel, lead the Court to believe that there is much credence to Attorney Savad's argument that the disqualification motion was made in order to oppress Forward economically and prevent him from proceeding with his claims against Foschi.
* * *
Forward's brazen actions in accessing Foschi's e-mail accounts without her authorization, his affidavit which verges on being perjured, and his counsel's complicity in failing to alert Defendants of the e-mails and seeking this Court's determination over whether the privilege had been waived, would favor the award to Defendants of their costs and reasonable attorneys' fees incurred on this motion. On the other hand, the fact that Foschi has not proffered an affidavit of her own (which might have shed light on whether she took Forward's Blackberry before Forward intercepted her e-mails), Foschi's decision in February 2008 to allow Forward continued access to her e-mails in order to deliberately provide him with misleading information, and Ross' involvement in leading the Court to form the misimpression that Forward's improprieties were not known until he produced documents, and her use of the disqualification motion as a tactic, are of equal gravity. Given the transgressions of both parties and their counsel, the Court will not reward either side through an award of costs and attorneys' fees.
The Court notes that in its May 2010 Decision, Foschi's failure to submit an affidavit was not held against her as the Court stated "Foschi not submit an affidavit in support of her motion and did not have an opportunity to submit a reply. It is certainly possible that she did not submit an affidavit in support of her motion because she did not wish to address the relevant background, including any actions on her part to invade Forward's privacy. Further, even if it if is assumed that Foschi took Forward's Blackberry and accessed his personal and business e-mails in the Spring 2008, the Court, for purposes of this motion, will assume that Foschi disputes that she engaged in the conduct that Forward alleges."
Accordingly, the Court will deny both parties their costs and attorneys' fees incurred in connection with this motion.
Through the present submission, Defendants seek to have the Court change its May 2010 Decision on the ground that (1) there was no impropriety between Foschi and Ross and (2) Foschi did not waive the attorney-client privilege as to e-mails after February 3, 2008 because she sought to protect her e-mails by consulting Calabria in February 2008 who advised her that Forward could not be accessing her e-mail.
CPLR Rule 2221(d) provides, in relevant part, that a motion for leave to reargue: (1) shall be identified specifically as such; (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. . . . Moreover, it is well settled law that a motion for reargument is "not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" ( Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; Marine Nat. Bank v National City Bank, 59 NY 67, 73 [1974]; American Trading v Fish, 87 Misc 2d 193 [Sup Ct NY County1975]).
Because the entire premise of Defendants' motion is based on facts that were not previously provided to the Court, Defendants have failed to establish that the Court misapprehended or overlooked the facts or misapplied the law, or for any other reason, mistakenly arrived at its determination to the extent reargument is sought. Accordingly, Defendants' motion to reargue shall be denied.
The reason Defendants proffer for why they should be entitled to renew is that they did not know that Forward would argue that Foschi waived the attorney-client privilege with regard to the e-mails in question. This position, however, is belied by the fact that at Forward's deposition on August 27, 2009, he testified that while he did not have Foschi's permission to access her healthsos account, Foschi was well aware that both Forward and Foschi "had access to any e-mail that we wanted to get into in that account" (Forward Tr. at 634). Thus, Defendants knew full well, long prior to the January 21, 2010 issuance of the Order to Show Cause bringing on their motion, that Forward was contending he had access to any e-mails in Foschi's healthsos account. Thus, Defendants were on notice that Forward would argue waiver.
Further, Foschi's contention that she was unaware that Forward had access to her healthsos account is undermined by the evidence provided in Forward's affidavit submitted in opposition to Plaintiff's motion. In it, Forward averred that Foschi was well aware that as administrator of the GoDaddy e-mail accounts, Forward had access to all of the healthsos.com accounts and she acknowledged the same both at her deposition and in an e-mail exchange between Forward to Foschi dated August 27, 2007. Thus, Foschi writes to Forward "I have the e-mails now in place, with no thanks to you. Why do you have control of the e-mail accounts?" to which Forward responds that all e-mails for the account go to info@healthsos.com and provides the account number, log in, password and pin ID for the account. He further states that "[a]ny e-mails for info@healthsos will go to both [Foschi] and [Forward]."
Foschi's and counsel's contention that Foschi only planted one e-mail, which was the one she forwarded to Ross on March 30, 2008, is entirely undermined by Foschi's own words in her March 30, 2008 e-mail to Chris Panczer, Esq. that "Up until now, I continue to use the e-mail account he had access to distract him and make him think that I am worried."
For example, Mr. Luskin is entirely off the mark where he affirms that "Foschi did not actually plant phony e-mails to lead the plaintiff astray, although she initially considered doing so but was stopped by Ross" (Luskin Aff. at ¶ 13).
While Foschi has provided evidence now that Ross counseled Foschi after the February 3, 2008 e-mail to change her e-mail account and to hire an IT person to stop Forward's accessing Foschi's e-mails, and that she further advised Foschi against planting e-mails, these facts do not change this Court's view that Foschi was less than forthright as to her use of e-mails and her knowledge of Forward's access to the healthsos e-mail accounts, as set forth in the e-mail exchange she had with Forward on or about August 27, 2007. Regardless of whether Ross and/or Panczner successfully dissuaded Foschi from continuing to plant misleading e-mails, there is no basis for any change in the Court's view that Foschi tried to use Forward's access of her e-mails as a tool in this litigation. Any lack of complicity by counsel in this endeavor is of no moment.
The Court likewise rejects Defendants' effort to obtain renewal. CPLR 2221(e) provides that a motion for leave to renew (1) shall be identified specifically as such; (2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion. Additionally, it is well settled that an application for leave to renew a motion must be predicated on new matters not available prior to the court's decision ( Matter of Ahmad v Purcell, 82 AD2d 802 [2d Dept 1981]) "or which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court. Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application" ( Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]; see also American Trading v Fish, 87 Misc 2d 193 [Sup Ct NY County1975]; Ecco High Frequency Corp. v Amtorg Trading Corp., 81 NYS2d 897 [Sup Ct NY County 1948], affd 274 App Div 982 [1st Dept 1948]; Patterson v Town of Hempstead, 104 AD2d 975, 976 [2d Dept 1984]).
Here, Defendants seek to renew based on facts that existed at the time they filed their motion to disqualify/suppress. Defendants have offered no evidence that these facts were unavailable at the time of their original motion and have not presented a reasonable excuse why the facts addressed in their motion to renew were not included with their original moving papers ( see Palmer v Toledo, 266 AD2d 268 [2d Dept 1999]; Rizzotto v Allstate Ins. Co., 300 AD2d 562 [2d Dept 2002]; Riccio v DePeralta, 274 AD2d 384 [2d Dept 2000]). Defendants were fully on notice that Forward was going to argue waiver. Defendants' answer and Sixth Counterclaim specifically allege that Forward during his employment intentionally accessed and read Foschi's e-mails, including her e-mails to counsel.
Furthermore, this Court held a conference on January 8, 2010 in which Defendants objected to the Savad firm's reappearance in this case because of that firm's prior access to the e-mails in question. The Court noted that it had previously taken action to prevent outgoing counsel for Plaintiff Forward from providing the e-mails to new counsel. When the Court stated to Churgin that he had seen e-mails from the adverse party to her attorney that suggested to the Court that these were procured without consent, and asked Churgin how he was going to deal with that problem, he responded by saying that he did not believe that the e-mails were privileged. The Court directed that the motion by Defendants be brought on by order to show cause in order to expedite the motion in light of the Court's direction that outgoing counsel not release anything from the file until the issue was decided. Ross responded: "Thank you" and did not object to the use of the order to show cause procedure.
This Court's rules and practice guide specifically advise counsel that replies are not accepted on motions pursued by orders to show cause. The submission of replies delays the disposition of motions and, thus, it would defeat the purpose of the order to show cause procedure to invite replies. Counsel, therefore, should have prepared their papers and addressed the arguments that they reasonably should have expected Plaintiff to raise — i.e., waiver.
Additionally, the argument that Defendant should have been allowed to present six new affidavits, including one from Foschi, in reply is, in any event, a gross abuse of the use of reply papers. While reply papers may be submitted to address new matters raised in the opposition papers, it is a whole other thing to assert that a moving party could offer only a "bare-bones" set of moving papers (bereft of any affidavit from the client and others and including only an affirmation of counsel [supported by court documents, correspondence and a deposition transcript]), await the opposition papers, and then submit six affidavits to which the opponent would presumably have no opportunity to reply. Had the Court permitted such a reply, it would have also had to permit Plaintiff a sur-reply, causing still further delay.
For these reasons, Defendants' motion to renew shall be denied.
In the opposition affirmation of Plaintiff's counsel, request is made for production of the February 3, 2008 e-mail on that ground that the e-mail is not privileged as it went to the accountant in addition to Ross. Apart from the fact that Plaintiff did not request the opportunity to pursue a cross-motion or request a pre-motion conference to pursue a motion for this relief, even if the e-mail is not privileged, the Court's May 2010 Decision held that, as a discovery sanction for Forward's unlawful access to Foschi's e-mail, that he would be denied the right to use e-mails between Foschi and third parties on or before February 3, 2008.
CONCLUSION
The Court has considered the following papers in connection with these motions:
1)Notice of Motion dated July 14, 2010; Affirmation of Andrew J. Luskin, Esq. dated July 15, 2010 together with the exhibits annexed thereto; Affirmation of Donna Ross, Esq. dated July 15, 2010; Affidavit of Sandra Foschi, sworn to July 15, 2010; Affidavit of Joseph Calabria, sworn to July 16, 2010; Affidavit of Patricia Dillon, sworn to July 13, 2010; Affidavit of Robert E. Rich, sworn to July 14, 2010; Affidavit of Salvattore Marino, sworn to July 13, 2010; Affidavit of Kimberly Ferris, sworn to July 13, 2010;
2)Affirmation of Joseph A. Churgin, Esq. in Opposition to Motion to Re-argue/Renew, together with the exhibits annexed thereto;
3)Affirmation of Paul Savad, Esq. dated February 17, 2010 together with the exhibits annexed thereto;
4)Reply Affirmation Andrew J. Luskin, Esq. dated August 5, 2010, together with the exhibits annexed thereto.
Based upon the foregoing papers, and for the reasons set forth above, it is hereby
ORDERED that the motion by Defendants Sandra Foschi, Health SOS PT P.C., Health SOS Realty LLC, Health SOS Realty Babylon LLC and Health SOS Re Management Ardsley LLC to reargue and/or renew their prior motion is denied.
The foregoing constitutes the Decision and Order of this Court.