Opinion
8927 Index 159576/14
04-04-2019
Paul J. NAPOLI, Plaintiff–Respondent, v. Marc J. BERN, Defendant–Appellant.
Robert & Robert, PLLC, Uniondale (Clifford S. Robert of counsel), for appellant. Quinn Emanuel Urquhart & Sullivan, LLP, New York (Luke Nikas of counsel), for respondent.
Robert & Robert, PLLC, Uniondale (Clifford S. Robert of counsel), for appellant.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Luke Nikas of counsel), for respondent.
Friedman, J.P., Gische, Webber, Gesmer, JJ.
Order, Supreme Court, New York County (Mark C. Zauderer, Special Referee), entered on or about April 4, 2017, which determined that plaintiff executed a 2014 charitable pledge agreement with defendant's consent and that therefore the payments owed under the agreement are a debt of the "legacy" law firm of which the parties were the two equitable partners, unanimously affirmed, with costs.
The Special Referee correctly precluded defendant from calling a computer forensics expert to testify that three electronic documents, i.e., email "read receipts," produced in 2017 on behalf of plaintiff were falsified during litigation, on the ground that whether the email had been read by defendant was a collateral matter, not material to the issue of whether defendant agreed to the 2014 charitable pledge agreement (see Badr v. Hogan , 75 N.Y.2d 629, 635, 555 N.Y.S.2d 249, 554 N.E.2d 890 [1990] ). The electronic documents were not received in evidence, and defendant otherwise presented no evidence connecting plaintiff to the creation of the allegedly wrongful documents. In any event, any error was harmless, because the Special Referee stated that, even if the evidence were material, it would not have changed his findings (see People v. Pabon , 28 N.Y.3d 147, 157–158, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016] ; People v. Umali , 37 A.D.3d 164, 166, 830 N.Y.S.2d 51 [1st Dept. 2007], affd 10 N.Y.3d 417, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ).
Defendant's contention that plaintiff should forfeit his claims in this matter is unsupported by clear and convincing evidence that plaintiff engaged in a willful and pervasive scheme to defraud the court that prejudiced defendant's ability to defend against the claims (see CDR Creances S.A.S. v. Cohen , 23 N.Y.3d 307, 321–322, 991 N.Y.S.2d 519, 15 N.E.3d 274 [2014] ).
We have considered defendant's remaining contentions and find them unavailing.