Greenfield v. Schultz

• Decision Date: 07 April 1997
• Citation: 660 N.Y.S.2d 624,173 Misc.2d 31
• Parties: James L. GREENFIELD, Plaintiff, v. Eric B. SCHULTZ et al., Defendants.
• Court: New York Supreme Court

Page 624

660 N.Y.S.2d 624

173 Misc.2d 31

James L. GREENFIELD, Plaintiff, v. Eric B. SCHULTZ et al., Defendants.

Supreme Court, New York County.

April 7, 1997.

David Arens, New York City, for Plaintiff.

Horing Welikson & Bienstock, Forest Hills, Defendant pro se, and for Eric B. Schultz, Defendant.

EDWARD J. GREENFIELD, Justice.

"What's in a name?" asked Shakespeare in the immortal lines he wrote for Juliet to speak. As we now enter the digital age, the appropriate question may well be, "What's in a number?" At least, that is the issue posed in this very contentious case. The dispute involves the alleged disclosure of a telephone number and the records of calls recorded for the phone of plaintiff and his wife. Plaintiff, James L. Greenfield, purports to be a "Very Important Person" (unlike the writer, no relation, who has no pretensions to global importance), as a member of the editorial board and high in the hierarchy of the New York Times. Contending that disclosure of the telephone records of the calls made by his wife and himself would dry up his sources and threaten the physical safety of persons all over the world with whom he has confidential contacts, he attempts to envelop himself in the robes of John Peter Zenger, waging a monumental battle for the freedom of the press.

In reality, the case is not nearly as momentous as plaintiff would have us believe. We are presented here with what is basically a relatively minor, but bitter dispute arising out of the hostilities of a landlord-tenant confrontation. The happenstance that one of the parties is employed by a great newspaper does not elevate this case to a battle over constitutional principles.

There is no dispute about the circumstances giving rise to this dispute. Plaintiff and his wife, Margaret Greenfield, own rental property at 40 East 75th Street in Manhattan which is managed by Ms. Greenfield. Residential premises were leased to Andrea Lyons, but the landlord-tenant relationship did not run smoothly. Lyons filed suit for rent overcharges. Mrs. Greenfield sought an injunction against the tenant removing furniture, and claims the tenant to be substantially in arrears. She brought an action for the arrears and related relief. Greenfield v. Lyons, New York County Supreme Court, Index No.: 30881/92. The tenant in that action was represented by the attorneys Schultz, Horing Welikson & Bienstock, who have been made the defendants in this action. In May 1995, during the pendency of the landlord-tenant matter, the ASPCA received an anonymous call complaining that Ms. Lyons was mistreating her puppies. Suspecting that this was a harassing spite call and that the Greenfields were the source of this spurious complaint, Lyons' attorney issued a subpoena duces tecum to NYNEX for the telephone records of the Greenfields, for calls made from their business and residential phones for the six-day period between May 15th and 21st of 1995 to see if that was the source of the call to the ASPCA. The records were to be delivered to the subpoena clerk at 60 Centre Street on July 12, 1995, which was not a date on which any hearing in the Lyons action was scheduled. The subpoena was issued purely for discovery, but the attorney had failed to comply with the requirement of CPLR § 3120(b) that production of records or documents by a non-party be by court order upon notice of motion to all adverse parties. Matter of Beiny (Wynyard), 129 A.D.2d 126, 517 N.Y.S.2d 474 (1st Dept.1987), rearg. and lv. denied 132 A.D.2d 190, 522 N.Y.S.2d 511; Estate of Kochovos, 140 A.D.2d 180, 528 N.Y.S.2d 37 (1st Dept.1988).

While NYNEX avers that the records were sent, whether they made it to the office of the subpoena clerk is unknown, since the clerk has no record indicating they were ever received. If they did arrive at the courthouse, no one can remember, and the defendant attorneys never got to see them. Nevertheless, plaintiff, James Greenfield, perceiving threats to his privacy, his privileges, and his journalistic integrity, commenced the instant lawsuit against Lyons' attorneys, claiming they had been "acting in consort" (sic) to violate his constitutional rights, in violation of the Federal Anti-Wiretapping Act (47 U.S.C. § 605), violation of the Shield Law (Civil Rights Law § 79-h) and claiming emotional distress, loss of consortium, tortious interference with contract, violation of the Judiciary Law and abuse of process. Defendants thereupon moved to dismiss the complaint. Plaintiff countered with a cross-motion to amend the complaint by adding a ninth cause of action for violation of the Penal Law and a request for a declaratory judgment. He also sought to subpoena NYNEX and subpoena the Clerk of this Court with respect to delivery of the phone records. All these motions are consolidated for disposition herewith.

This court, determined to deal with the merits or lack of them, decided to convert the motion to dismiss into a motion for summary judgment and notice of the court's intention to do so was given in writing. At the outset, apart from the merits of the underlying action, plaintiff's motion to subpoena NYNEX and this court's Records Clerk must be denied in any event. It is clear that the clerk has no memory of ever receiving the phone records, and no documentation evidencing their receipt. To ask him to testify generally as to the access the general public might have to subpoenaed documents, and invite speculation that someone might have seen the records and nefariously intercepted or walked away with them would invite the wildest kind of speculation that such an unknown person might have recognized that these were not ordinary records, but those of a person with extraordinary connections, which records documented unusual telephone activity, and therefore "compromised" the plaintiff's "world-wide contacts and confidential sources for the gathering of news", threatening their careers and physical safety. That supposes that some onlooker, if any, could glance at the numbers called and ascertain if they were to a prime minister, a rebel leader, or a dry cleaner. As to NYNEX, it can add little to support plaintiff's claims. If, as asserted, the phone record was sent to the court, its receipt and any awareness of its contents by anyone cannot be established. Speculation as to conspiracies and hypothetical injuries cannot be countenanced. This court will not indulge in acts of total uselessness and futility.

Plaintiff's Causes of Action

Apart from a lack of any demonstrable injury, the issues raised by Mr. Greenfield in his various causes of action merit further discussion--particularly the claim that issuance by defendant attorney of the subpoena of the phone records was a criminal act which violated plaintiff's constitutional rights, threatened freedom of the press, and was a blatant invasion of his privacy.

Plaintiff's first cause of action seeks an injunction against any future violation of CPLR § 3120(b). It is clear that a motion for a third-party subpoena should have been made on notice, and defendant attorney acknowledges his procedural mistake. There is no threat of repetition. Besides seeking to enjoin defendants from violating § 3120(b) again, plaintiff requests an order compelling defendants to return to the plaintiff the telephone records in their possession and denying them the right to use them. Defendants insist they never saw the phone records in question, nor have they ever had them. Defendants assure the court they will never violate § 3120(b) again. They did not succeed in obtaining the evidence sought. Margaret Greenfield's case was not prejudiced by defendants' bypassing the procedural rules of discovery to see who made the calls about animal abuse to the ASPCA.

Sometimes, when § 3120(b) has been violated and the violators have in fact gained an improper advantage in the litigation, courts have imposed appropriate sanctions. See, Matter of Beiny (Wynyard), 129 A.D.2d 126, 517 N.Y.S.2d 474 (1st Dept.1987), rearg. and lv. denied 132 A.D.2d 190, 522 N.Y.S.2d 511; and Estate of Kochovos, 140 A.D.2d 180, 528 N.Y.S.2d 37 (1st Dept.1988). The imposition of sanctions is discretionary, and even if there has been an improper production of records, when no advantage ensued to the violator, the request for sanctions has been denied. DiMarco v. Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692 (4th Dept.1995). In this case, Margaret Greenfield and her attorney, sought to sanction defendants in the landlord-tenant case. Justice Richard Lowe, III, denied their motion. Justice Lowe's judicious attempt to quell the Greenfields' agitation over a non-event failed, and this Court is now faced with Mr. Greenfield's request to enjoin an act not threatened.

An injunction is an extraordinary remedy, issuance of which rests upon the sound discretion of the court. It is not to be used to punish past wrongdoing, but as protection for the future. Nann v. Raimist, 255 N.Y. 307, 315, 174 N.E. 690 (1931). The Court is satisfied that there is no realistic danger that defendants will violate § 3120(b) again. Absent any pending threat of such a violation or of a course of conduct making such a recurrence likely, the issuance of an injunction would be meaningless. An injunction will not issue to restrain a fait accompli or a fortiori a fait non accompli. Doe v. Roe, 158 A.D.2d 759, 551 N.Y.S.2d 75 (3rd Dept.1990); Town of Oyster Bay v. New York Telephone Co., 75 A.D.2d 598, 426 N.Y.S.2d 807 (2nd Dept.1980).

Plaintiff's second cause of action seeks damages of up to $10,000 for each telephone number disclosed in violation of 47 U.S.C. § 605, the Anti-Wiretapping Act, to be enhanced by an additional $100,000 for each violation due to the "wrongful, unprincipled and covert" methods purportedly used by the defendants in attempting to secure the phone records. The relevant portion of 47 U.S.C. § 605(a) prohibits persons receiving, transmitting, or assisting in receiving or transmitting...