Fragin v First Funds Holdings, LLC

Fragin v First Funds Holdings, LLC 2017 NY Slip Op 03463 Decided on May 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 2, 2017
Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.
3883N 652673/14

[*1] Gary Fragin, Plaintiff-Respondent,

v

First Funds Holdings, LLC, formerly know as First Funds LLC, et al., Defendants-Appellants.

Regosin, Edwards, Stone & Feder, New York (Saul E. Feder of counsel), for First Funds Holdings, LLC, Principis Capital LLC, Northern Leasing Systems, Inc., Economic Growth Group Inc. and Leonard Mezei, appellants.

Bleakley Platt & Schmidt, LLP, White Plains (Richard F. Markert of counsel), for Moses & Singer, LLP, appellant.

Frankfurt Kurnit Klein & Selz, PC, New York (Ronald C. Minkoff of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 12, 2016, which granted plaintiff's motion to compel the production of documents and testimony, unanimously modified, on the law, and in the exercise of discretion, to refer this matter to a special master for review of all of the documents on defendants' privilege log, and otherwise affirmed, without costs.

The motion court providently exercised its discretion (see e.g. Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]) by finding that plaintiff demonstrated "a factual basis for a showing of probable cause to believe that a fraud ... has been committed" (Matter of New York City Asbestos Litig., 109 AD3d 7, 10 [1st Dept 2013] [internal quotation marks omitted], lv dismissed 22 NY3d 1016 [2013]). The motion court's original decision at oral argument — to refer all of the documents (not just a sample) to a special master — was sound, and we exercise our independent discretion (see Those Certain Underwriters, 11 NY3d at 845) to direct such a course.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 2, 2017

CLERK