Trussell-Slutsky v McIlmurray

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Trussell-Slutsky v McIlmurray 2018 NY Slip Op 33496(U) October 11, 2018 Supreme Court, Rockland County Docket Number: 31137/2017 Judge: Robert M. Berliner Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 To com1ncn(c thcsrntu!ory time pcriu<l for appeal:; as of right [CPLR 55l3(a)], you arc ad•·iscd to serve a copy oflhis order, \\ilh notice nf entry upon all parties SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ----------------------------------------------------------------------x MEREDITH TRUSSELL-SLUTSKY, Plaintiff, DECISION AND ORDER IndexNo.: Order Date: Mot. Seq. -against- 31137/2017 Oct. 1I, 2018 1 CAROL MCILMURRA Y, ROCKLAND POST.COM, MCILMURRA Y PUBLISHING HOUSE PRINTING CO., and THE CAROL REPORT, Defe11dm1ts. ----------------------------------------------------------------------x BERLINER, J. The following papers were read 011 this motion by plaintiff pursl1ant to CPLR 3124 and 3126 to co111pel defendru1ts to further respond to plaintiff's Notice to Produce dated A1tgltst 2, 2017: Notice of Motion, Affirn1ation i11 Support, Exhs. A-E Affirmation i11 Opposition, Mcllmu1ray Affidavit Reply Affirn1ation Transcript of August 22, 2018 Referee Report (Markus, C.A.R.) dated September 6, 2018 Upo11 tl1e foregoing papers, tl1e n1otion is detern1i11ed as follows: l)ursua11t to the Order of Reference of this Court (Berliner, J.) dated A1tgust 9, 2018, directing Court A1to1ney-Ileferee David Evan Markus to hear and repo1t in this action, sucl1 Referee filed witl1 tl1is Coltrt a Ileferee Report dated September 6, 2018, in re1atio11 to the pendi11g n1otion. Such Referee Report provides i11 relevant part as follows: Bacl\:ground Plaintiff, a public school teacher living and working in Rockland County_. New York, con1111enced tl1is defa111ation actio11 by Sun1n1ons a11d Verified CornplaiI1t 011 Marcl1 13, 2017 -1- 1 of 18 [*FILED: 2] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 (NYSCEF Doc. 1), alleging that defendant Carol Mcllmurray published libelous statements about plai11tiff on the websites rockla11dpost.com ("Ilockland Post") m1d/or carolreport.co1n ("The Carol Report") - websites that plaintiff alleges Mclhnurray to ovvn and operate personally or ·via co-defendant entities. "fhe allegedly defamato1y staten1ents include that plaintiff is a "47year-old hooker ... who daylights as an elementa1y scl1ool teacl1er at Woodglen Eleme11tary School in New City," whicl1 school is part of the Clarlcstown Central School District ("CCSD"); that plai11tiff is "well-known prostitute," a "l1ooker" charging for "group sex"; and that plaintiff has bee11 "i110011light[ing] ... as a house call girl to satisfy entire rootns of men and won1e11" including plaintiff's alleged "client," nonparty Dr. Jeffrey Oppe11hei111, former mayor oftl1e Village of Mo11tebello. 1'he Con1plaint attaches what plaintiff alleges to be print-ottts of these staterne11ts, _and seeks $15.7 million in compensatory dm11ages, plus punitive damages, on 3 l causes of action for defan1ation per se, ii1tentional infliction of e1notional distress and negligent infliction of en1otional distress. Defense cottnsel entered a Notice of Appearance for all defendants on June I, 2017 (NYSCEF Doc. 14); interposed an answer for defenda11t Mcllmurray on June 2, 2017 (NYSCEF Doc. 15); and filed a11 a±Iidavit of service for such ai1swer on June 2, 2017, denon1inating such fili11g to be for all defenda11ts (NYSCEF Doc. 16). On or about August 2, 2017, plaintiff served 011 all defendants a Notice to Produce; all counsel then atte11ded a Preli111inary Conference before this Court (Berliner, J.) on Septe111ber 14, 2017. On September 28, 2017, defe11da11ts objected to plaintiffs Notice to Produce on multiple grou11ds, i11cluding the jour11alist privilege o_fCivil Rights Law sectio11 79-11 to protect defendants' "sources" _against disclosure. By Notice of Motion dated November 9, 2017, plaintitT n1oved to compel defendants to provide full and con1plete responses to, tl1e Notice to Produce; defenda11ts opposed plaintiffs motion. T11is Court's Order of Reference dated August 9, 2018 (NYSCEF Doc. 35), directed the undersig11ed to "hear and report on all pertinent issues" and, pursuant to CPLR 4001 and 4201, "conduct fu1ther proceedings in co1mection therewitl1, i11clt1ding but not limited to framed issue hearings to resolve factual disputes." Accordingly, the undersigned held a hearing on August 22, 2018, at wl1icl1 all counsel ai~peared. At sttcl1 proceeding, all cot111sel agreed that a frmned issue hearing on whetl1er any of defendants qualify as jo11rnalists or newscasters under the Shield Law -2- 2 of 18 [*FILED: 3] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 vvottld adduce no cognizable evidence beyond materials already submitted on tl1e motio11 (see I-Tearing Tr., at 12-13). Defense counsel also confinned orally the position tl1at defendants previously tool( in tl1eir discovery response that defe11dants possess no information responsive to plaintiffs Demru1ds ## 9 (nan1es and addresses of rockla11dpost.con1 board nlembers), 26 (11t1111ber of subscribers to rocklandpost.com) and 42-45 (addresses of four rocklandpost.co1n "editors") (see Heari11g Tr., at 5-6) On such representations, all counsel agreed that the discove1y motio11 should be deemed sub1nitted tOr determinatio11 based on the papers before tl1e Court (see Hearing Tr., at 8-9, l 3). Party Contentions Plaintif'f asserts tl1at defenda11ts are i11eligible to i11voke tl1e Sl1ield Law privilege becat1se t11ey offer no cog11izable record evidence that any of the defendants are paid to report on news for any con1n1ercial publication in busi11ess for over 011e year. Plaintiff :further argues that even if the Shield Law could apply, at most defenda11ts can clai111 only a q11alified privilege that plait1tiff may breach, and sufficiently de111onstrates e11titlethe11t to breach, upon a '"clear and specific showing" that the niaterials sought ru·e highly 1naterial and relevru1t, critical or necessruy to t11e clai1n, and not obtainable fron1 any alternative source (Civil Rigl1ts Law § 79-h[c]). As to discovery that plai11tiff s Notice to Produce seeks, plaintiff asseits t_hat she makes this requisite den1onstration as to"11ews"-gathering materials by sl1owi11g tl1at such inforn1ation is not allegedly confide11tial and that such discovery goes to ( 1) the truth or falsity of the statements, (2) whet11er defendru1ts are journalists and/or (3) whether defendants published the n1aterials with n1alicious intent. Such proof, plaintiff asserts, is vital to the defan1ation and en1otional distress c!ai1ns, as well as to plaintiff's demand !Or punitive damages, and by definition not obtainable fron1 other sources. Plaintiff further arg11es that certain other disclosures to which defendants object on Shield Law grou11ds outside the Sl1ield Law privilege because defe11dants published on social media websites, such as Facebook-, the allegedly defamatory staten1ents to whicl1 such disclosures relate (see Civil Rights Law§ 79-h[g]). In opposition, defe11dants sub1nit an affidavit 1i·o1n Carol Mcllmu1Tay attesting 1 amo11g other things, that she is a 'journalist by professio11," that she tnakes her "living" as such, a11d tl1at ' -J- 3 of 18 [*FILED: 4] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 sl1e l1as "no other source of income" (Mclln1l1rray Aff., at if 4). She attests that sl1e founded rocklandpost.con1 i11 April 2016 as an "011li11e news publication" and tl1at sl1e serves as a "writer" and "jour11alist" for it (itl., at ir 7). In connection there\vith, she avers tl1at sl1e has "researched, gat11ered, and organized dozens of news articles for publication on [r]ocklai1dpost.com" (id.). On this basis, she argl1cs that she is a "qualified news professional" eligible to invoke tl1e Shield Law privilege agai11st disclosure. Defendants also argue that all of plaintiffs demands concerni11g Dr. Oppe11hein1 (and presun1ably tl1us also i1onparty Ann Oppenl1eh11) are irrelevant as a n1atter of law because Dr. Oppen11ein1 is not a party to this action. Analvsis lt is ax·ion1atic that under CPLR 31 Ol(a)(l ), tl1ere must be full disclostrre of all matters "n1aterial and necessary" to tl1e prosecution or defense of an action. The phrase "material a11d 11ccessary'' is interpreted liberally to rcql1ire disclosure, on request, of any facts bearing on tl1e controversy that will assist preparatio11 for trial by sharpeni11g the issues and reducing_ delay and prolixity (see Matter of Kapon, 23 NY3d 32 [2014], quoting Allen v C'rolvell-Collier Pub!. Co., 21 NY2d 403, 406 [1968]). Trial co1trts have broad discretio11 to supervise discovery and enter appropriate re1nedies under CPLR 3124 and CPLR 3126 to ensure the fair and efficient conduct of dis_covery (see.1J11erbach v Klein, 30 AD3d 451 [2d Dept 2006]; Feeley v Mitlas Properfies, Inc., 168 AD2d 416 [2d Dept 1990]). To strilce a pleading under CPLR 3126 as a consequence of discovery violations, the proponent of this "drastic" re1nedy must sl1ow that the discovery violations manifest "willful and contu1nacious'' conduct (Greene v Mullen, 70 AD3d 996 [2d Dept 2010]; Jvfaiorino v Cily o/Ner11 York, 39 AD3d 601 [2d Dept 2007]; Kingsley v Kantor, 265 AD2d 529 [2d Dept 1999]). A court 111ay infer such \.villf1il m1d contl1macious conduct fro111 repeated noncomplia11ce with court orders. or failure to comply with co11rt-ordered discove1y over an exte11ded period of time coupled with the lack of an adequate excuse for such 11011compliance (see Mei Yan Zhang v Santana, 52 AD3d 484 [2d Dept 2008]; Carbajal v Bobo Robo. Inc., 38 AD3d 820 [2d Dept 2007]; Prappas v Papatfatos, 38 AD3d 871 [2d Dept 2007]). Under these circumstances, "[tJhe nature and degree of the penalty to be in1posed 011 a motion pursuant to CPLR 3 l 26 is a 1natter ge11erally left to the -4- 4 of 18 [*FILED: 5] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 discretion oftl1e Supreme Cou1t" (Ccirbajcll, 38 AD3d at 820). 111 a defan1ation action seeking punitive da1nages, tl1e plai11tiffbears the burden to show botl1 t11e falsity of offending factual assertio11s (see Prozeralik v Capitictl Cities Con1n1s., Inc., 82 NY2d 466, 473 [1993], ciling lmmuno AG v Moor-Jankowski, 77 NY2d 235, 245 [1991], cert denied 500 US 954 [1991 ]), illl(l that the declarru1t n1ade s11ch assertions with actual malice (see Free1nan v Johnston, 84 NY2d 52, 56 [1994}; Atfcthoney v Aclirondack Puhl. C'o., 71 NY2d 31, 39 [ 19871). Offending statements must be n1ore tl1an merely "loose, figurative or hyperbolic" (Kqye v Trump, 58 AD3d 579, 580 [l st Dept 2009], Iv denied 13 NY3d 704 (2009]), and cannot be so "vague, subjective [or] lacking in precise ineaning" as to be practicably ii1capable of proof or disproof (Jacobus v Trump, 156 AD3d 452 ,452 [J st Dept 2017], Iv denied 31 NY3d 903 [2018]; see Gross v Nen 1 York Tin1es Co,, 82 NY2d 146 [1993]). It is well-settled that "actual malice" 1neans either k110\vledge that the offe11di11g factual assertions were false or reckless disregard to the truth or falsity of such assertio11s (see Neu )Tork Thne.s· Co. v Sullivan, 376 US 254, 279-280 1 [1964]; Freen1crn, 84 NY2d at 56-57; Prozeralik, 82 NY2d at 474; see also Lee v Weinslein, 116 A02d 700, 701 [2d Dept 1986] [defi11ing "actual nlalice'' as "personal spite, ill will or culpable recl(lessness or 11egligence"J, Iv denied, 68 NY2d 601 [1986]; PJI 3 :30 [defan1atory statement "is n1ade maliciously if it is n1ade witl1 deliberate intent to injure or made out of l1atred, ill will, or spite or 1nade witl1 willful, \Vanton or reckless disregru·d of another's rights"]). Plai11tiff beru·s the burde11 to prove sucl1 actual 1nalice with "co11vincing clarity" (Harte-Hanks Co111municaiions v Connaughton, 491 US 657, 659 [1989]; Freeman, 84 NY2d at 57 [collecting cases]), a standard that is synony1nous witl1 clear and co11vinci11g evide11ce (see _,,1nderso11 v Liberly Lobby, 477 US 242, 254 [1986]; Freeman, 84 NY2d at 57). Based on tl1e foregoing principles, CPLR 3101 (a)(l) entitles a defamation plaiI1tiif seeking pu11itive damages to obtain discovery of alleged facts 111aterially bearing 011 (1) proof or disproof of wl1ether the declarant 111ade t11e alleged factual assertions, (2) t11e truth or falsity of sucl1 assertions, and (3) whetl1er t11e declarant made sucl1 assertion's knowi11g the1n to be false or \Vith reckless disregard for 'their trutl1 or falsity. Where a defendant deliberately refuses to provide sucl1 discovery, a court properly n1ay in1pose the consequences that CPLR 3124 and CPLR 3126 autl1orize: "Ift11e credibility of court orders and the integrity of our judicial system -5- 5 of 18 [*FILED: 6] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfefl'er, 94 NY2d 118, 123 [1999]; Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]). Notwithstanding the foregoing, the New York Shield Law operates as a CPLR 31 Ol(b) privilege against strch discovery. The Shield Law protects against co11tempt penalties- a11d thus against judicial e11forcen1ent of CPLR 3101 (a)(l) discovery obligations - professional jour11alists ai1d newscasters who decline to disclose: '·any news obtained or received in confidence or the identity of tl1e source of <:J-IlY sucl111ews coming into st1cl1 person's possessio11 in the course of gatl1ering or obtai11ing 11ews for publication or to be published i11 a [qualif)'ing print 111ediun1] or for broadcast by a [qualifyi11g broadcast mediu1n] ... by wl1ich such perso11 is professio11ally employed or otherwise associated i11 a news gathering capacity" (Civil Rights I~aw § 79-h[b]). Where a perso11 or entity qualified to iI1voke tl1e Shield Law obtains or recei\'es i1ews items outside the cloak of news-gatl1ering confidentiality, the Shield Law accords not an absolt1te privileg~ but ratl1er only a qualified privilege. A pa1ty seeking st1cl1 qualifiedly privileged infor1nation can obtain discovery oftl1e -san1e by 1nakii1g: "a clear and specific sl1owing that the [de1nanded information]: (i) is l1igl1ly 1naterial and relevant; (ii) is critical or necessary to the inaintena11ce of a party's claim; [and] (iii) is not obtainable fro1n any alten1ative source. A court shall order disclosure only of such portion, or portions, of tl1e 11ews so11ght as to whicl1 the abovedescribed sl1owit1g 11as been n1ade and sl1all support sucl1 order with clear a11d specitic findings made after a l1earing. The provisions of this subdivision shall not atiect tl1e availability, u11der appropriate circumstances, of sanctions under [CllLR 3126]" (Civil Rights Law § 79-h[c]). To i111ple1nent the foregoing privilege schen1e, the Shield Lav·.' establisl1es predicates to define a journalist or ne\vscaster eligible to invoke its protections. Tl1e Shield Law defines a "newspaper" as a ptrblication printed and distributed at least weekly for at least a year (Civil Rights Law§ 79-h[a][l]); a "'magazine" as a publicatio11 distrib11ted periodically for at least a year with a paid circtrlation (id.,§ 79-11[a][2]); a "news agency" as a "commercial organization that collects and strpplies news to subscribing newspapers, n1agazi11es, periodicals and news -6- 6 of 18 [*FILED: 7] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 broadcasters" (id,§ 79-h[a][3]); and a ''wire service" as a "news agency that sends Ollt syndicated news copy by wire to subscribing 11ewspapers, n1agazi11cs, periodicals or news broadcasters" (f(l., § 79-h[a][5]). The Shield Law fu1tl1er defines "news" as co1nmunications "concerning local, national or worldwide eve11ts or otl1er n1atters of public concern or plrblic ii1terest or affecting the pl1blic welfare" (id, § 79-h[a][S]). In light of the foregoing, the Shield La\v defines a "professio11al journalist" as a person who: "for gain or livelihood, is e11gaged in gatl1ering, preparing, collecting, writing, editing [or otl1erwise dissen1inating] 11ews intended for a i1ewspaper, 111agazine, news agency ... or wire service or other professional n1ediu1n or agency whicl1 has as one of its regular functions the JJrocessi11g and researching of news inte11ded for disse111i.natio1110 the public; such perso11sl1all be so1neone perfor1ni11g said function eitl1er as a regltlar employee or as one otl1erwise professionally affiliated fbr gain or livelihood with such mediun1 or con1n1u11ication" (Civil Rights Law§ 79-h[a][6]). -rhe party invoking privilege agai11st disclostue under CPLR 3101 (b) generally, or under the Shield Law particularly, bears the bttrden to demonstrate such entitlement (see e.g. WDAI-FM v Proshin, 42 AD2d 5, 6-7 [3d Dept 1973]; People v Wolf, 39 AD2d 864, 864 [!st Dept 1972]). In the instant posture, the foregoing standards require defendants to demonstrate that each is a qualifying "professional journalist" or "ne\.vs caster," and thus that tl1e media with which they claitn association - l1ere, roclclandpost.com, Mciln1urray Publisl1ing 1-fouse Printing Co., and/or The Carol Report- respecti\rely qualify under the Sl1ield J,,aw as a "nev,rspaper," ''magazine," "news age11cy" or "wire service." Defendants also n1ust show tl1at the materials they i11voke Shield Law privilege against disclosing qualify as "news" or are associated with the gathering, editing or dissemination of "news." As defendants furtl1er clai1n absolute privilege against such disclosure, defenda11ts additionally 1nust demonstrate that they obtained t111der "cloak of confide11tiality" tl1e i11fon11ation tl1ey object to disclosing 011 that basis. In applying tl1e Sl1ield Law, courts strictly construe t11e qualifyi11g conditions for invoking its protections, because tl1e Shield Law operates as an exception to t11e generally liberal seru·ch for truth that is at the J1eart of CPLIZ 3101 (a) discovery (see e.g. People v LeGran(f, 67 AD2d 446 -7- 7 of 18 [*FILED: 8] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 [2d Dept 1979]; see ct/so Von Bulou1 ex rel. Auersperg v Von Bulo1v, 811 F2d 136 [2d Cir 1987], cert de11ied sub non1 Reynold~ v Von Bulo111 ex rel. Auersperg, 481 US 1015 [1987]; Jn re Gra11d Jury Subpoena Dated Janumy 4, 1984, 750 F2d 223, 224 [2d Cir 1984]). Once a party properly invoices tl1e Shield Law, 11owever, courts broadly apply its protectio11s to vindicate the Legislature's policy deter1nination to protect the public interest in a vigorous i'ndepe11dent press and the free cl1annels of news co1n1nunication (see e.g. Knight-Ride/er Broadccrsting, !11c. v Greenberg, 70 NY2d 151, 155 [1987]; Matter of Beach v Shanley, 62 NY2d 241, 251 [1984]; sec also JVfessenger ex rel. Messenger v Gruner+ .Jahr Printing & Pub., 94 NY2d 436, 441-442 [2000] [broad co11struction of"11ews\vort11i11ess"]). 1. Dcfe11dants' Untimely Objection As a prefatory n1atter, defendants failed to object timely to plaintiffs Notice to Produce. CI)I,JZ 3122 requires that a party objecting to a discovery de111and 111ust interpose such objection \Vithi1120 days of service of such de1nand (see CPLR 3122[a][l ]). Given Plaintiff's Notice to Produce of August 2, 2017, the Court should deem the de1nand served as of August. 7, 2017, five days later (sec CPLR 2103[b][2]). Applying the 20-day rule and recognizing that August 27, 20 J 7, \.Vas a Sunday, defendants' response was due August 28, 2017 (see CPLR 3122[a][l]). Defendants' response, l1owever, is dated September 28, 2017 - 31 days later- and defense cow1sel's affidavit of service attests to serving such response by 111ail on Septen1ber 29, 2017 (NYSCEF Doc. 20). As sttch, defendants' objections specified in sucl1 response, including defenda11ts' invocatio11 of the Shield La\v, all are unti1nely. While tl1is Court possesses discretion to extend defendants' discovery response time for good catise sl1own (se·e CPI.,R 2004), defendm1ts do not seek such an exte11sion. Defendants also fail to acknowledge tl1e tardiness oftl1eir discovery response. Accordingly, defendants ofl'er tl1is Court i10 cog11izable basis to extend time. On the foregoing .basis, tl1e Court should reject as u11tin1ely all defense oQjections to plaintiff's Notice to Produce, i11cluding objections on grounds of relevance and Sl1ield Law privilege. -8- 8 of 18 [*FILED: 9] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 2. Relevance of Demanded Discovery Concerning Nonpartics Leaving aside tl1e ltntin1eliness of defendants-' objections, the Court should determine that defendants' relevru1ce objections lack substantive merit. Defendants assert t11at all of plaintiff's discovery den1a11ds seeki11g disclosure of materials concerning i10111)arty Dr. Jeffrey Op_pe11heim or nonparty A11n Oppe11hci111 are not discoverable because they are 11ot parties to tl1is action. The de111ands subject to this objectio11 are: De111and #1: "Tl1e basis and sources, i11cluding fldl name(s) and addresses of individuals referred to i11 your Face book posting, 1nade on February 21, 2017, tl1at 'Neurosurgeon and Former Mayor of Montebello [Oppcn.beim is or was] livi11g witl1 I<.nown Prostitltte' [Trussell-Slutsky]"; De1nand #I I: "The index 11umber and caption of all actions brougl1t by Carol Mclln1urray for medical malpractice and/or sexual harass1ne11t against Jeffrey Oppenl1eim MD"; Den1and #?7: "State tl1e date of all communications a11d meetings between Carol Mclln1urray m1d Aru1 Oppenhei1n"; Dema11d #28: "State t11e locatio11 of all meetings had between defendants a11d A1u1 Oppe11l1eirn"; Demand #29: "Provide copies of all writings, correspondence, a11d emails in the possession of defendants to or from Ann Oppen.hei111"; De111a11d #38: "Tl1e na1nes of all patie11ts that Jeffrey Oppenhein1 'sexuall)' 11arassed for niI1e years' as stated on defendants (sic) Fac.cbool< page"; Demand #46: "Provide all docun1ents that establisl1 defendants (sic) staten1ent tl1at Dr. Oppe11hein1 'left 11is wife of 25 yeru·s with zero maintena11ce after raisiI1g t11ree children ... "'; Demand #4 7: "Provide the Soltrce of defendants (sic) state1ne11t tl1ai Dr. Oppenheim "left his wife of 25 years witl1 zero n1ai11tenance after raising three children ... "'; -9- 9 of 18 [*FILED: 10] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 Dema11d #48: "The nan1e of the individual(s) that (sic) provided defendant witl1 information that Dr. Oppenhein1 provided 'zero mait1tenance' to his wife for 25 years"; and De111and #49: "Tl1e dates that 'Dr. Oppenhei1n cl1ronically would show his erectio11 to defe11da11t. '" Tl1e entirety of detb11dru1ts' relevru1ce argun1cnt in oppositio11 to enforcing tl1e foregoing demands is tl1at such discovery is not cognizable UI1der CPLR 3101(a) because the Oppenl1eims are not parties to this actio11 (Defs' Aff in Opposition, at~ -4). This argu1nent lacks 1nerit and borders on specious. Defendants offer no authority for the proposition tl1at a party's topical co1n11111nicatio11s with a no11party necessarily are "beyond tl1e scope" of permissible discovery si111ply because of sucl1 no11party status. Even granting defendants' tacit premise tl1at discovery de111a11ded of a party about a nonparty constitutes "11onparty discovery'' - which it does not - the Court of Appeals 11as beco1ne nearly as liberal with no11party discovery as witl1 party discovery (see Maller of Kapon v Koch, 23 NY3d 32 [2014]). Rather, liberally construing defendants' objections m1d 1notio11 papers, the argument nlost fairly attriblttable to defe11da11ts is t11at discovery concerning any of the Oppenl1eims is irrelevant to plai11tiffs particular allegations that defenda11ts defm11ed plai11tiff. As to Demand #1, even tl1is arg11n1e11t lacks rnerit because tl1e discovery also concerns plaintiffs alleged conduct in "livi11g witl1" Dr. Oppenheim and the basis for defendants' statement tl1at plaintiff is a "Known Prostitute" Tl1e Co1nplaint explicitly cites t]1at defendants 11amed Jeff Oppenl1eim as 011e of plaintiff's'·'johns' ... paying for sex as early as 2000" (Complaint, at ~11166, 191, 216, 241 ). The a1Jpendix to tl1e Con1plaint attacl1es alleged publicatio11s from defendants stating that Dr. Oppenhcin1 was "living with a Known Prostitute." As such, Demai1d #1 is relevant to confirm ai1d clarify declarants' staten1e11t and its appm·ent refere11ce to plai11tiff, and thus to satisfy the threshold showing tl1at an allegedly defan1atory statement is sufflciently clear to be factually refutable (see e.g. Jacobus v Trurnp, 156 AD3d at 452, Iv denied 31 NY3d 903; Kltye v Trump, 58 AD3d at 580, Iv denied 13 NY3d 704). Moreover, give11 defendants' alleged statements about the 11ature of plaintifPs relationship wi_tl1 Dr. Oppenhei111, this Co1trt should concur with plaintiff that defendants' alleged state1nents about Dr. Oppenl1ein1 in Dema11d #1 (i.e. tl1at he lived with -10- 10 of 18 [*FILED: 11] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 plaintiff as a "·Known Prostitute") are "i11exorably" related to defe11dants' alleged stateme11ts concerni11g plainti±1~ Thus, the Court sl1otLld ti11d t11at Dc1nand #1 is releva11t to the fact11al claims it1 plaintiffs Con1plai11t. Dcn1ands ##11, 27-29 ru1d 46-48 appear to be releva11t to show whether defe11dants 11ad 1notive to nlake tl1e alleged state1nents concerning plai11tiff's relationship witl1 Dr. Oppenhei1n (see e.g. flarris v Hirsh, 86 NY2d 207 [1995]), and/or to explicate defendants' basis for making tl1ese staten1ents. Either way, sucl1 discove1y \Vould be relevant to explicate wl1ether defendants n1ade such state1nents with knowled_ge oftl1eir falsity or witl1 reckless disregard for their trut11 or falsity. As to De111ru1d ##38 and 49, even if such discovery does not directly relate to defendants' alleged defatnation of plaintiff, these demands do apperu· relevant to whetl1er the con1n111nications referenced in st1ch dc1nands evi11ce a pattern of defendants 111aki11g sexually-related state1nents about Dr. Oppen11ein1 that defendants eitber knew to be false or about wl1icl1 defe11dants acted v-,rith reckless disregard for tl1eir truth or falsity. To tl1e extent that ru1y such pattern intersects v.·ith defe11da11ts' staten1ents concen1ing· plai11tiff at iss11e in this action, discovery of any such patter11 would be relevant to demonstrate defendants' actual malice. Accordi11gly, and especially given the liberality of discovery u11der CPLR 3101 (a)(l), .tl1e same appear to be discoverable. For the foregoing reasons, tl1e Cou1t sl1ould overrttle 011 substantive gro11nds defendants' relevance objections concerni11g plai11tiffs discovery Demands## 1, 11, 27-29, 38 and 4'6-49. 3. Relevance of Demanded Disco\'Crv Concerning Rockland Post Subscril1ers Defe11dants separately object to plai11tiffs Den1and #25, wl1ich seel<s "all subscription fees paid to the RocklandPost (sic) by subscribers." Defendants object on grounds that such disclosure is "'beyo11d tl1e scope" of pre-trial discovery. Defe11da11ts are wrong. Defendants 11avi11g clai1ned that tl1ey are jo11ri1alists eligible to invoke the Sl1ield Law privilege against disclosure, plaintiJI is entitled to discovery requisite to the factual b11rden tl1at defenda11ts bear to de111onstrate such entitlement. Such discovery includes whether rocklru1dpostco1n qualifies as a ·'newspaper," "1nagazine," "11ews agency" or ''wire service" within the n1eani11g of the Shield Law (see Civil Rights Law§ 79-h[a][I], [2], [3], [5]). As noted above, proof that rocklandpost.com qualifies as a "n1agazine" requires a sl1owi11g ofa "paid circ1Ilation" (itl., § 79- -11- 11 of 18 [*FILED: 12] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 h[a][2]), a11d a ·'news age11cy" and "wire service'·' botl1 have "subscribing" custon1ers (id., § 79h[ a][3]. [5]). As sucl1, plai11tiff is entitled to seek discovery of wl1cther rocklandpost.co1n 11as a paid circu!atio11 or subscribing Cl1storners, and Den1and #25 is relevant to that proof. Sucl1 discovery is i11dependently releva11t to explicate the relationship, if any, between defendant Mclh11t1rray and rocklandpost.co1n. Paragrapl1 27 of the Con1plaint alleges tl1at rockla11dpost.co1n "was a11d still is the alter ego of defendant, Carol Mcllmurray," which allegation defendm1ts denied except to ad1nit that Mclln1u1Tay "bas published an electro11ic publication called 'The Rockland Post"' (Answer, at fl 7). Mcllmurray's sworn affidavit in opposition to· this motio11 also attests that she 1nakes 11er living as ajournaJist and l1as no other source of incon1e; that sl1e founded rocklandpost.con1, m1d that s11e has co11tinuously served as a 11ews professional on its bel1alf (see Mcilmurray Aff., at ~fl 4, 5, 7). McJimurray having placed in controversy her status as a paid journalist 011 behalf of rocklm1dpost.con1, plaintilf is entitled to discovery of such status. Mciln1urray l1avi11g sworn to the foregojng in sub111is:sions before this Court, Sltcl1 discovery also 111ay bear on Mcilmurray's credibility before the finder of fact. f'or the foregoing reasons, the Collrt sl1ould overrule 011 ·sltbstantive grounds defendants' relevm1ce objections concerning plaintiffs discovery De1na11d #25. 4. Defendants' Invocation of Shield La\V As noted above, defendants eacl1 bear the burde11 of den1onstrating tl1at they are eligible to invoke the Shield Law privilege against discloslrre of the den1anded discovery. Defendants fail to make tl1e requisite factual showing. As to the co-defe11dant e11tities, defendants offer this Cou1t no relevru1t evide11c-e concerning rocklandpost.co1n, Mcilmurray Publishing I-louse Printing Co. and TI1e Carol Report. For instance, defendants offer no record evide11ce that sucl1 defendants have paid subscribers, or publisl1 regularly, or furnisl1 news as a syndicating business entity. 'fo the extent that defendants clain1 Shield Law privilege as a "11ewspaper," defendants fail to sl1ow or even minimally asse1t paid publication for at least a year with at least weekly' ge11eral circulation (Civil Rights Law § 79-h[a][ 1]). To the extent that defendants claim such privilege as a "magaii11e," defenda11ts fail to sl1ov.' or even minin1ally assert paid circulation of JJeriodic publication for at least a year -12- 12 of 18 [*FILED: 13] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 (id., § 79-h[ a][2]). To tl1e extent tl1at defendants clain1 sucl1 privilege as a "news agency," defendants fail to sl10\V or even ininin1ally assert that any organizational defendant is a "co1111nercial organization" (id., § 79-11[a][3]). To tl1e extent that defendants claim Sl1cl1 privilege as a "wire service," defendants fail to show or even n1inin1ally assert that they send out "syndicated nevvs copy ... to subscribing'-' news entities (id,§ 79-h[a][5]). Defendants 11ot only failed to inake t11e above showings but also proffered that tl1ey cannot give certain discovery plaintiff sought concerni11g their status as legitimate ongoing business concerns, at least as to defendant rocklandpost.con1. For instance, as 11oted above, defendants proffered that they have i10 info1n1ation responsive to plaintiff's Den1and #9, whicl1 sought the na1nes and addresses of rocklandpost.com board n1embers - suggesting that rocklandpost.con1 n1ight not have a board. Likewise, defendants proffered t11at 1I1ey have no inforn1atio11 responsive to Demand #26, wJ1ich sougl1t the 11ltmber of rocklm1dpost.con1' s subscribers - suggesting that rockla11dpost.con1 has no sl1bscribers. Defendants also asserted t11at they have no inforn1atio11 responsive to Den1ands ##42-45, which sought the addresses of ce11ain p~rso11s deno1ninated as rocklandpost.con1 "editors." While defendants' foregoing discovery responses do 11ot 11ecessarily rule out- as a matter of Jaw - that the c0Hdefe11dant entities might be legitin1ate business concerns, defenda11ts' written and oral responses offer additio11al context for defendants' f3illrre, on this 1notio11, to make any reasonable factual sl10\vi11g that t11ey are, in fact, qualii}'i11g news entities. Also of note is tl1at when the undersig11ed pressed defense counsel at the l1earing of August 22, 2018, as to whetl1er defendants could offer further facts to make tl1is necessary sl1owing, defe11se counsel responded i11 tl1e negative (see I-fearing Tr., at 5-6). As Slrch, the Court has no record basis to suggest 1nuch less concll1dc as a matter of law- that any of the co-defendant entities qualify as a ''newspaper," "111agazi11e," "news agency" or "wire service" u11der tl1e Shield Law (see Civil Rights Law§ 79-h[a][l], [2], [3], [5]). f'or her pm·t personal defe11dant Carol Mclln1urray also fails to show entitlerne11t to claim Shield Law privilege. Wl1ile 11er affidavit attests that she "n1akes [her] living" as a "professional jol1rn8.list" (Mcllrnurray Aff., at 'if 4), her assertion is entirely bald and self-serving. For instance, it is devoid of any represe11tation (much less proof) t11at sl1e is paid by a11y c0Hdefenda11t entity, or -13- 13 of 18 [*FILED: 14] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 tl1at she is a "'regular en1ployee" of, or "otherwise professionally affiliated for gain or livelihood" with, any oftl1en1 (Civil Rigl1ts LaVI' § 79-11[a][6] [defining "professional journalist"]). That Mclhnu1Tay attests that sl1e fo11nded rocklandpost.com, and tl1at she "researcl1ed, gatl1ered, a11d organized dozens of news articles for publication on rocklandpost.com" (Mciln1urray Aft:, at if 7), is facially insufficient for at least two reasons. As 11oted above, tl1e affidavit does not assert much less show tl1at Mcilrnurray performed any of such f1111ctions as a "regular en1ployee" of, or othcr\visc "for gai11 or livelihood" in association with, rock\a11dpost.com or another qualifyit1g ne\.VS ei1tity, as Civil Rights Law§ 79-h(a)(6) req11ires. Also as noted above, defendru1ts fa'il to show that rocklandpost.corn and the other organizational defendants are qualifying news entities in professional association with which Mciln1urray could i11voke the Sl1ield Law privilege (see e.g. id., § 79-J1[b] [absolute privilege 011ly for news corning into possession i11 course of gathering or obtaining news by or for qualifying news entity "by which sucl1 person is professionally e1nployed or othervvise associated in a news gatl1ering capacity"]). For each and all of the foregoing reasons, Mcihn1u-ray fails to carry her burden to derno11strate tl1at sl1e is a "professional journalist" eligible to invoke Shield Law protection against plaintiffs discovery demands. 1 For the above reaso11s, it follows that the defenda11t entities also are ineligible to clai1n supervisory or en1ployer privilege under the Shield Law. Had Mcllrn11n·ay den1011strated that sl1e is a qualifying 11ews professional, tl1en any Shield Law privilege attaching to her could 11ave extends to any "supervisory or employer third person or orgru1ization 11aving autl1ority over [her]" upo11 tl1at factual showi11g (Civil Rights Law§ 79-h[f]). Defendants offer, 11owever, no evidence concerning any '"stipervisory or en1ploy[n1ent] ... at1thority" that any co-defe11dant entity n1ay 1 The record also suggests that Mclln1urray's interest in plaintiff 1night have extended beyond journalism to enco1npass 1nore direct participation in civic affairs. The appendix to plaintiffs Co1nplaint includes an alleged Facebook chat transcript in whicl1 Mcl!inurray writes, "I would like Lo know when the PTA 111eeting for [S]lutsky is, I \Vould like to attend ... I >Viii give testi1nony, its true" (Co1nplaint, Appx. [NYSCEF Doc. 1, at 75). The Complaint also attaches a Facebook chat screen shot, allegedly dated February 19, 2017, identifying McI!murray as a "Me1nber of CCSD Parents Concerned for the Future" (fri., at 78). (The undersigned infers that "CCSD" refers to Clarkstown Central School District, which includes the elementary school \Vhere defendants allegedly stated plaintiff"daylights" as a teacher.) While there is no record evidence that these 111aterials have been authenticated_, these 1naterials cannot properly for1n a cognizable basis for decision. l·Iowever, it bears noting that the Shield Lav,r seeks to protectjburnalists legitiinately reporting on civic affairs, not active stakeholders engaging in direct public advocacy by self-identifying as members of civic organizations and offering "testi1nony." -14- 14 of 18 [*FILED: 15] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 have had over Mciln1urray. I11deed, as narrated above, defendants proffered t11at tl1ey have no i11forn1ation respo11sive to plaintiffs de1nands for the na111_cs and addresses of rocklandpost.con1's boa_rd 111e1nbers and the addresses of four specified editors. E\1en had defendru1ts met their tlireshold burden to demonstrate that they are jour11alists lu1der the Shield Law, tl1ey also would need to carry t11eir burden to sl1ow that they collected or disse111i11ated the den1ru1ded discovety as (or in co11nection \Vith) qualifying "news" or "sources" in their capacity as jow·nalists. They did not catTy that burden or, apparently, recognize the need to do so. !lather, defendants' nan·ow argun1ent- that Mcllmurray claims to be a professional journalist, and t11erefore sl1e and all defendants may decline plai11tiff s discovery demruxls appears to misperceive funda111entally the Shield Law's thrust and purpose. As the Col1rt of Appeals repeatedly has recog11ized, the Shield Law accords not blanket protectio11 to journalists as such, but ratl1er limited protection to bona fide news professionals in tl1e course of newsrelated functio11s of the press and associated free channels of news co111n1unications (see e.g. Kn(e;l1t-Ridder Broc1tlcasfing, Inc., 70 NY2d at 155; Matter of Beach, 62 NY2d at 251 ). Thus, the Shield I~aw absol11tely privileges agai11st compulsory disclosure 011ly "news obtained or received in con.flclence or the it!entily of the source oftiny such nervs coming into sucl1 person's possession in the course (~f galhering or ohlaining 11eivs for publication or to be publisl1ed i11 a [qualifying news medium]" (Civil Rights Law§ 79-h[b] [emphasis added]). '"[W]here such news lor source] was 11ot obtained or received in confidence," the Sl1ield Law allows judicial con1pulsion of disclosure upon a l1eightened sl1owing of necessity (id., § 79-11[c]). Thus, Mciln1urray's clai111 to being a "journalist" - even if record evide11ce validated that clain1 - would be only the begin11i11g of properly i11voking tl1e Shield I,avv. Mcllmurray also woi.1ld need to pro1ferthat she or someone else associated with the co-defendant e11tities obtai11ed or received news, or tl1e source of i1ews, "in confidence" and "in the co1rrse of gatl1ering or obtaining 11ews" withi11 the mem1ing of Civil Rigl1ts Law section 79-h(b). Defenda11ts having failed to 1nake this proffer tnl1ch less support it, defendru1ts caru1ot invoke tl1e Shield Law's absolute protection against co1npelled disclosure. At tl1e very n1ost, defcndru1ts might claim only the qualified pri\1ilege specified in Civil Rig11ts Law section 79-11(b ). TI1e potential for sucl1 qualified privilege tl1en Woltld exte11d to ''unpublished news obtained or prepared by a jour11alist -15- 15 of 18 [*FILED: 16] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 or i1ewscaster ... or tl1e source of any such news" (Civil Rights Law § 79-h[c ]) - which 1night countenance Mclltnurray's claim that l1er status accords her protectio11 against disclosure. Even granting this nlost liberal treatJ.11e11t ofMclln1u1Tay's argun1ent, however, sucl1 qualified privilege could not apply to Den1ru1ds ##11 (index i1umbers and captions of certain cotnt actions), 27-29 (dates and locations of defenda11t con1111unications with Ann Oppe11l1eim and copies of any co1nn1unications with 11er), and 49 ("dates that 'Dr. Oppenhci1n cl1ro11ically would show 11is erection to defe11dant'~'), because there appears to be 110 reaso11able argument that sucl11natters centrally concern u11publisl1ed news or the identity of sources. Rather, defenda11ts - ·upon a proper showing entirely absent here- co11ceivably n1ight have been e11titled to assert a qualified privilege as to De1nands ## 1, 38 and 46-48. But eve11 so, plaintiff still wottld be able to obtain responses to sucl1 den1ands upon n1aking the tl1ree-pa1t heightened sl1bwing tl1at Civil Rights Law section 79-11(c) i11vites. 1"he record amply supports tl1e conclusion that plai11tiff 111ac:le t11at sl1owing for eacl1 of sucl1 de111ands. As noted above, Demand #1 is highly n1aterial a11d releva11t to t11e facts (or lack_of facts) of any relationsl1ip that defE:ndants clain1ed betwee11 plaintiff ru1d Dr. Opperlhei1n, a11d relevant to prove (or disprove) defendants' clain1 of eyewit11ess accounts to plaintiffs prostitutio11. Such proof is critical to test t11e truth of the declarants' state111ents, and tl1e Cou1t could conclu'de that tl1ere is no alternative source for tl1e 11an1es aiJd contact inforn1ation of these alleged witnesses. Turning next to Demand #38, the sa1nc is highly material ru1d relevant to discerning any pattern of defendant defan1ation about Dr. Oppenhein1, wl1ich wo11ld be critical to establisl1ing motive as to the declarants' statements co11cerni11g plai11tiff. Any such nlotive would be critical to den1onstrate actual 1nalice requisite to punitive dru11ages, and such discovery also is unobtainable by any other means. Dema11ds ##4648 also are highly relevant to any defense pattern of defa1nation concen1ing Dr. Oppenheim and thus defense i11otive concen1ing defendants' statements about plaintiff in relation to him. Such discovery also appear to be unobtai11able by any otl1er means, especially given that cotut records in n1atri1nonial actio11s and support deter1ninations - of exactly the kind that defendants allegedly described- are protected against disclosure fron1 the courts (see DRL § 235). Accordingly, even had defendru1ts 1net their burden to show that they are qualified news professionals u11der tl1e Sl1ield Law, responses to p!ait1tiff's Demru1d ## 1, 38 and 46N48 still can -16- 16 of 18 [*FILED: 17] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 be compelled linder the q11aliJied privilege of Civil Rights I~aw 79-h(c). Based on tl1e foregoing, the Court should concl11de tl1at plaintiff carried her burden to sl1ow entitlement to such relief notwithstandi11g tl1e Shield Law, and therefore that relief should be grm1ted. l~atification of Referee Report This Court havit1g received no timely opposition to confirn1ing tl1e Referee Report, and upon d11e deliberation thereon, it is 11ereby ORDERED that the Referee Report is confirn1ed in accordance witl1 CPLR 4403 ai1d lJnifo1111 R1tle 202.44(b); and it is further ORDERED that upon s11ch Referee Report, plaintiff's niotion to compel discovery is granted; and it is furtl1er OJ{DERE-D that not later tlian 20 days after tl1is Decision and Order, \Vith Notice of Entry, shall be served 011 defense cou11sel it1accordance11erewith: (I) Defendants sl1all te11der to plaintiff full mid co1nplete responses to plaintiffs Notice to Produce. vvithout further objection; provided t11at for any dernar1d as to which defendants proffer that they lack responsive i11forn1atio11, defendants shall provide an affidavit to that effect - and in the case of the entity defe11dants, such affidavit shall be executed by a person with authority to sig11 on bel1alf thereof, m1d attachi11g con1petent proof of sucl1 autl1ority - attesting also to the date or dates and pm·a111eters of the sem·cl1 for sucl1 responsive info1inatio11; and (2) Defense counsel shalJ inake a $100.00 payrne11t to plaintiff's counsel for motion costs p11rsua11t to CPLR 8202, and upload to NYSCEF by sucl1 date a suitable affirmation of pay1nent; and it is further ORDERED tl1at if any defendm1t fails to comply herewith, plaintiff may upload to NYSCEF - not soo11er than 25 days and not later tl1an 30 days after tl1is Decision and Order, with Notice ofEnt1y, s11all be served on defe11se counsel in accorda11ce herewitl1- an atton1ey affinnation ofnonco1nplia11ce and proposed order striking such defendant's answer, upon which such defendant's answer i11ay be stricken pursuant to CPLR 3126, and judgment shall be entered against such defe11dant as to liability only; and it is further ORDERED that u11less all detenda11ts sooner have their answers stricken consistent -17- 17 of 18 [*FILED: 18] ROCKLAND COUNTY CLERK 10/11/2018 04:16 PM NYSCEF DOC. NO. 40 INDEX NO. 031137/2017 RECEIVED NYSCEF: 10/11/2018 herewith, all counsel sl1all appear before Cotut Attorney Referee David Evan Markus for fu1ther proceedi11gs co11sistent herewith at 2:00 p.m. on Tuesday, November 20, 2018; and it is further ORDERED that counsel for plaintiff shall serve this Decision and Order, with Notice of E11try, on counsel for defe11da11t by NYSCEF withi11 five days l1ereof. 'fhe foregoing constitutes the Decision and Order of this Court. Dated: _New City, New York October 11, 2018 !f#?4 f!A-13~ HON. ROBERT BERLINER, J.S.C. cc: All counsel via NYSCEF -18- 18 of 18

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