C.C. v. D.D.

• Decision Date: 10 July 2019
• Docket Number: XXXXX
• Citation: 64 Misc.3d 1216 (A),117 N.Y.S.3d 459 (Table)
• Parties: C.C., Plaintiff, v. D.D., Defendant.
• Court: New York Supreme Court

64 Misc.3d 1216 (A)

117 N.Y.S.3d 459 (Table)

C.C., Plaintiff,

v.D.D., Defendant.

XXXXX

Supreme Court, New York County, New York.

Decided July 10, 2019

Elliot Wiener, Esq. and Athena Maria Mihalos, Esq. from Phillips Nizer LLP for Plaintiff

Defendant was pro se

Child 1 is represented by Susan Bender, Esq

Other children are represented by Daniel Lipschutz, Esq.

Douglas E. Hoffman, J.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 155, 158, 207 were read on this motion to/for MISCELLANEOUS.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 148, 149, 150, 151, 152, 153, 154, 156, 161, 162, 163, 164, 165, 166, 167, 168, 194, 195, 196, 197, 198 were read on this motion to/for SANCTIONS.

The parties in this matrimonial action are currently married and have three children: O.*¹ (thirteen years old), P. (twelve years old), and Q. (six years old). O. is represented by Attorney for the Child Susan Bender, Esq. P. and Q. are represented by Daniel Lipschutz, Esq. At the start of the action, and when motion sequence 003 was first filed, both parents were represented by counsel. Defendant has since become pro se.

Defendant Husband D.D. ("Husband" or "Father"), first with his counsel, and then pro se , filed motion sequence 003 seeking removal of the Attorney for Child O., Ms. Bender, and removal of the court-appointed forensic evaluator, William Kaplan, M.D. Defendant Husband filed this motion following receipt of the forensic report from Dr. Kaplan, and a subsequent request by Ms. Bender to hire her own expert to help her evaluate whether it would be necessary to make certain emergency applications on behalf of her client, based on concerns raised in Dr. Kaplan's report. Defendant's motion then sought the "immediate" removal of Ms. Bender as that child's attorney, and suggested a specific replacement attorney for the child, sought removal of the forensic evaluator Dr. Kaplan, striking his report, ordering a "disgorgement" of fees paid to him and to Ms. Bender, suggested a specific replacement forensic evaluator, and sought to refer several attorneys in the case to the "disciplinary authorities." Defendant's motion cited portions of emails between Plaintiff Wife C.C. ("Wife" or "Mother") and her own attorneys, without Defendant fully explaining how he accessed these emails. At first, Plaintiff Wife's attorneys requested that the court not read the privileged emails, and urged the court not to waive her privilege. All sides then briefed the issue of whether the emails were privileged under the alleged circumstances. At the next court appearance, in large part because Defendant Husband continued to quote and cite portions of the May 7, 2018, May 31, 2018, November 1, 2018, and November 8, 2018 Wife's emails in his submissions, Plaintiff Wife's counsel consented to the submission of these specific emails to the court "in camera ," as long as the submission would not be considered as a general waiver of Wife's privilege and provided further that movant Husband agreed not to seek the undersigned's recusal in the future on the basis that the undersigned reviewed the emails. [NYSCEF doc. 207, March [redacted by the court], 2019 Tr. 3:6-6:22, 9:15-11:13]. Upon everybody's consent, the May 7, 2018, May 31, 2018, November 1, 2018, and November 8, 2018 emails were received, and Defendant Husband's motion (seq. 003) was filed.² Subsequently, both parties cited and attached these emails to their moving papers, not under seal (other than the general access restrictions applicable to all matrimonial filings in this court, pursuant to D.R.L. § 235(1) and N.Y.C.R.R. § 202.5-b(k)(1)), and adhered to the consent not to include any other emails.

During the time period when privilege of the emails was first briefed, Husband discharged his attorney, R. Kenneth Jewell, Esq., who was then relieved by the Court on consent. Thereafter, Defendant became pro se. Defendant is an attorney, admitted in the State of New York, although it appears that he may have allowed his Judiciary Law § 468-a bi-annual registration to lapse. Nevertheless, at the time that Mr. Jewell was relieved, and at numerous court appearances thereafter, the court advised Husband in detail of his right to counsel, strongly encouraged him to retain counsel, and offered to stay or adjourn the case to provide him sufficient time to do so. According to each party's statements, each party's income from their joint business during the year of commencement was in the seven figures, and therefore, the court could not assign counsel for Husband pursuant to Article 18-B, § 722-c of the County Law, and Judiciary Law § 35, or to seek volunteer counsel through the New York Women's Bar Association Pro Bono project, which sometimes provides up to 25 hours of pro bono service to indigent matrimonial litigants on financial or other issues. At all court appearances to date, Husband has stated that he will continue pro se at this point and does not want a stay or an adjournment.³

Plaintiff's counsel cross-moved (seq. 004) for sanctions, stating, in pertinent part, that Defendant's motion sequence 003 is a gross and erroneous misreading of Plaintiff's attorney-client-privileged emails that Defendant Husband improperly retrieved, accessed, read, and printed over at least several days, and which emails showed absolutely no wrongdoing on the part of any of the professionals or Plaintiff Wife, and that there has not been any such alleged wrongdoing. Specifically, Wife's motion sought the following nine categories of relief related to Husband's retrieval and use of Wife's emails:

1. Pursuant to CPLR Articles 31 and 45, precluding [Defendant's] use of emails retrieved, possessed, accessed, viewed, copied, printed or forwarded by any means from Plaintiff's email account ("[Wife's] Emails");

2. Dismissal of Defendant's custodial and financial claims in this action;

3. Pursuant to 22 NYCRR § 130-1.1, directing Defendant to reimburse Plaintiff for actual expenses reasonably incurred and reasonable attorney's and experts' fees related to [motion sequence 003 and 004, including related appearances and memoranda of law];

4. Pursuant to 22 NYCRR § 130-1.1, imposing financial sanctions against Defendant and [his prior counsel] R. Kenneth Jewell, Esq.;

5. Granting Plaintiff discovery with respect to the emails that Defendant acquired from [Wife's] Emails;

6. Directing that, within 3 days [of the final order on this motion], Defendant and R. Kenneth Jewell, Esq.:

a. Identify to Plaintiff and the Court all e-mails, communications or other documents that Defendant retrieved, possessed, accessed, viewed, copied, printed or forwarded to any person or email account including himself and his prior counsel, R. Kenneth Jewell, Esq. ("Mr. Jewell"), by any method and using any equipment or device during the period of January [redacted by the court], 2018 to date;

b. Identify to Plaintiff and the Court all persons or email accounts to whom or which Defendant forwarded or provided copies of [Wife's] Emails;

c. Identify to Plaintiff and the Court which, if any, of [Wife's] Emails Mr. Jewell received, possessed, accessed, reviewed, copied, printed or forwarded to any person by identifying (i) the name and position of each attorney or employee of Mr. Jewell who received, possessed, accessed, reviewed, copied, printed or forwarded any of [Wife's] Emails; (ii) which of [Wife's] Emails such attorney or employee of Mr. Jewell received, possessed, accessed, reviewed, copied, printed or forwarded; (iii) the date such attorney or employee of Mr. Jewell received [Wife's] Emails; and (iv) the person or email account from whom or which such attorney or employee of Mr. Jewell received [Wife's] Emails, whether from an external or internal source at Mr. Jewell's law firm;

d. Identify to Plaintiff and the Court which, if any, of [Wife's] Emails Mr. Jewell has forwarded to any person or email account, by identifying (i) the name and position of the attorney or employee of Mr. Jewell who forwarded any of [Wife's] Emails; (ii) which of [Wife's] Emails such attorney or employee of Mr. Jewell forwarded; (ii) the date such attorney or employee of Mr. Jewell forwarded [Wife's] Emails; and (iv) each person or email account to whom or which [Wife's] Emails were forwarded;

e. Provide access to any and all, personal and business, computers, mobile devices, and external hard drives owned or controlled by Defendant (including but not limited to providing usernames and passwords necessary to access such devices) ("Defendant's Devices") so as to permit a forensic investigator to determine whether any of [Wife's] Emails exist on any of Defendant's Devices and to determine whether [Wife's] Emails were opened, read, forwarded, and if forwarded, to whom; and

f. Return all copies of [Wife's] Emails to Plaintiff.

7. Directing that Defendant and/or R. Kenneth Jewell, Esq., produce the following documents within 3 days:

a. All documents reflecting communications between Defendant and Mr. Jewell from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.;

b. All documents reflecting communications between Defendant or Jewell, on the one hand, and any other person or entity from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation, Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.;

c. All telephone records, notes, diaries, journals and calendars created by Defendant from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the

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