Breest v Haggis

[*1] Breest v Haggis 2020 NY Slip Op 50580(U) Decided on May 18, 2020 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2020
Supreme Court, New York County

HALEIGH BREEST, Plaintiff,

against

PAUL HAGGIS, Defendant.



Index No. 161137/2017



PLAINTIFF: Emery Celli Brinckerhoff & Abady LLP600 Fifth Avenue, 10th Floor, New York, NY 10020By: Ilann M. Maazel, Esq., Jonathan S. Abady, Esq., Zoe A. Salzman, Esq., and Emma Lerner Freeman, Esq.DEFENDANT:ChaudhryLaw PLLC45 West 29th Street, Suite 303, New York, NY 10001By: Priya Chaudhry, Esq., Seth Jason Zuckerman, Esq., and Sarah Lucille Leddy, Esq.
Robert R. Reed, J.

The following e-filed documents, listed by NYSCEF document number (Motion 017) 320, 321, 322, 323, 324, 325, 326, 327, 328, 332, 333, 334, 335, 336, 337, 338, 340, 341, 342, 347, 352, 353, 354, 355, 356, 357, 358, 359, 360, 396, 397 were read on this motion to/for MISCELLANEOUS

The following e-filed documents, listed by NYSCEF document number (Motion 019) 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395 were read on this motion to/for DISCOVERY

The following e-filed documents, listed by NYSCEF document number (Motion 020) 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS

The following e-filed documents, listed by NYSCEF document number (Motion 021) 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460 were read on this motion to/for MISCELLANEOUS

The following e-filed documents, listed by NYSCEF document number (Motion 022) 422, 423, 424, 425, 426, 427, 428, 429, 430, 444, 445, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, [*2]471, 481 were read on this motion to/for EXTEND-TIME

The following e-filed documents, listed by NYSCEF document number (Motion 023) 473, 474, 475, 476, 477, 478, 479, 480, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500 were read on this motion to/for SANCTIONS

The following e-filed documents, listed by NYSCEF document number (Motion 024) 483, 484, 485, 486, 487, 488 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE/JURY

Motion sequence numbers 017, 019, 020, 021, 022, 023, and 024 are consolidated for disposition.

This is an action in which plaintiff Haleigh Breest seeks to recover against defendant Paul Haggis under the Victims of Gender-Motivated Violence Protection Law (VGM) (Administrative Code of the City of NY § 10-1101 et seq.) and CPLR 213-c for an alleged rape and sexual assault.

Defendant moves for an order unsealing certain documents and information on the ground that they do not constitute "Confidential Information" within the meaning of the parties' Stipulation and Order for the Production and Exchange of Confidential Information (hereinafter, the Confidentiality Order) (motion sequence number 017).

Defendant moves for an order compelling Jane Doe No.2 and Jane Doe #3, two nonparty witnesses, to complete their depositions. Alternatively, defendant requests that: (1) their deposition testimony be stricken; (2) the allegations pertaining to Jane Doe #2 and Jane Doe #3 in the verified second amended complaint be stricken; and (3) plaintiff should be precluded from referring to the uncooperative Jane Doe(s) at trial (motion sequence number 019).

Plaintiff moves, pursuant to CPLR 2304, 3103, and 3107, for a protective order and to quash two nonparty depositions (motion sequence number 020).

Defendant again moves for an order unsealing certain documents marked as confidential (motion sequence number 021).

Defendant moves for an order extending the end date for disclosure (motion sequence number 022).

Plaintiff moves, by order to show cause, for an order: (1) sealing the Zuckerman affirmation (NY St Cts Elec Filing [NYSCEF] Doc No. 470); (2) awarding sanctions against defendant in the form of attorneys' fees and costs incurred in making the instant motion; and (3) awarding further sanctions against defendant in the form of denying defendant's pending motions to unseal and to extend discovery (motion sequence number 023). On October 18, 2019, the court entered a temporary restraining order temporarily sealing the Zuckerman affirmation (NYSCEF Doc No. 470) and enjoining defendant from otherwise publicly filing the names of the nonparties contained therein.

Defendant moves for an order: (1) pursuant to 22 NYCRR 202.21 (e), vacating the note of issue and certificate of readiness and striking this action from the trial calendar; and (2) allowing the parties additional time to complete discovery and to file motions for summary judgment (motion sequence number 024).

BACKGROUND

Plaintiff alleges that, in January 2013, she was a film publicist that hosted film premieres for events in New York City (NYSCEF Doc No. 27, verified second amended complaint, ¶ 15). Defendant was an acclaimed Hollywood director, screenwriter, and producer (id., ¶ 18).

According to plaintiff, on January 31, 2013, she was working at the premiere and after-party for the Hollywood film Side Effects in Manhattan (id., ¶ 16). Defendant was there as a celebrity guest (id., ¶ 17). Toward the end of the event, defendant offered plaintiff a ride home (id., ¶ 22). Plaintiff alleges that she told defendant that she did not want to go to his residence (id., ¶ 5). However, defendant insisted that they go to his apartment (id.). Plaintiff ultimately relented and went with defendant to his residence (id.). Plaintiff asserts that, after they entered defendant's apartment, defendant began to make unwanted sexual advances and to forcibly kiss her, and that she repeatedly told him, "No" (id., ¶ 6). Defendant allegedly said in an aggressive and menacing tone, "You're scared of me, aren't you?" (id., ¶¶ 6, 34). Plaintiff alleges that defendant forced her to give him oral sex, and ultimately raped her (id., ¶¶ 53-54, 64-65).

PLAINTIFF'S CLAIMS AND PROCEDURAL HISTORY

In her verified second amended complaint, plaintiff asserts two causes of action seeking recovery under VGM and CPLR 213-c (id., ¶¶ 133-139, 140-144). The second amended complaint includes allegations that defendant raped and attempted to rape Jane Doe #1, Jane Doe #2, and Jane Doe #3 (id., ¶¶ 83-132). Plaintiff alleges that defendant's actions against plaintiff and these other women were gender-motivated (id., ¶ 137). Plaintiff requests an award of punitive damages, costs, and reasonable attorneys' fees (id., wherefore clause).

In his answer, defendant vehemently denies plaintiff's version of the events, and alleges that their encounter was consensual (NYSCEF Doc No. 32, verified answer, ¶¶ 54, 66).

VGM provides a cause of action to "any person claiming to be injured by an individual who commits a crime of violence motivated by gender" (Administrative Code § 10-1104).

Under VGM, the term "crime of violence" is defined as:

"an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law or that would constitute a misdemeanor or felony against property as defined in state or federal law if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction"

(Administrative Code §10-1103).

The statute defines the term "crime of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender" (id.).[FN1]

Previously, defendant moved to dismiss the amended complaint, and to strike the Jane Doe allegations. On August 15, 2018, the court denied defendant's motion, and declined to dismiss the Jane Doe allegations on the record (Breest v Haggis, 2018 WL 4698660 [Sup Ct, NY County 2018]).

On appeal, the First Department modified the court's decision and order, to the extent of striking the Jane Doe allegations (Breest v Haggis, 180 AD3d 83, 94 [1st Dept 2019]). The Court held, after considering the legislative history and statutory language, that "animus" under VGM meant "malice or ill will" (id.). In light of this definition, the Court held that plaintiff stated a cause of action under VGM (id.). According to the Court, plaintiff's allegations that she was raped and sexually assaulted by defendant were sufficient to satisfy the animus requirement of VGM, and she was not required to plead any further facts for gender-based animus (id.). "Malice or ill will based on gender is apparent from the alleged commission of the act itself. Animus inheres where consent is absent" (id.). The Court also struck the Jane Doe allegations, since they were not necessary to satisfy the animus requirement, and tended to prejudice defendant (id. at 94-95).

On December 11, 2018, the court entered the Confidentiality Order allowing the parties to designate documents, testimony, and interrogatory responses obtained in discovery as confidential information (NYSCEF Doc No. 71). The Confidentiality Order allowed the parties to move for an order declassifying such confidential information (id.).

Plaintiff filed the note of issue and certificate of readiness on October 15, 2019 (NYSCEF Doc No. 472).

Defendant now makes two motions to unseal certain documents and testimony designated as confidential. For her part, plaintiff moves for sanctions against defendant for violating the Confidentiality Order.

Plaintiff also requests an order compelling Jane Doe #2 and Jane Doe #3 to continue their depositions. Additionally, plaintiff moves to quash subpoenas and for a protective order.

Finally, defendant makes two motions for an extension of time to complete discovery and to vacate the note of issue.

DISCUSSION

CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The words, "'material and necessary,' are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell—Collier Publ. Co., 21 NY2d 403, 406 [1968]). "[I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material . . . in the prosecution or defense" (id. at 407). However, "the principle of 'full disclosure' does not give a party the right to uncontrolled and unfettered disclosure" (Mendives v Curcio, 174 AD3d 796, 797 [2d Dept 2019]). The party seeking disclosure must demonstrate that "'the method of discovery sought will result in the disclosure of [*3]relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'" (Abrams v Pecile, 83 AD3d 527, 528 [1st Dept 2011], quoting Vyas v Campbell, 4 AD3d 417, 418 [2d Dept 2004]). It is well settled that the trial court has broad power to supervise disclosure (Daniels v City of New York, 291 AD2d 260, 260 [1st Dept 2002]).

A. Defendant's First Motion to Unseal Documents (Motion Sequence Number 017)

Defendant moves to unseal certain documents and information, arguing that plaintiff cannot demonstrate good cause for maintaining confidentiality over documents that refute allegations that plaintiff has made to the press. Defendant further argues that the documents do not constitute "Confidential Information" within the meaning of the parties' Confidentiality Order. Specifically, defendant argues that text messages from plaintiff with her friends, starting February 1, 2013, the morning after the incident, through February 5, 2013 do not refer to medical records or personal, family or professional history. Moreover, plaintiff cannot claim in good faith that the documents are detrimental to her, only to her case. Additionally, defendant asserts that plaintiff cannot use the Confidentiality Order as both a "sword and a shield."

In response, plaintiff argues that the text messages were properly designated as confidential because they contain personal and confidential information. According to plaintiff, defendant openly admits that he seeks to unseal these messages so that he can leak the messages to the media. Plaintiff points out that victims of sexual assault may sue anonymously because of their emotional distress, to protect their privacy, and to avoid sensational publicity (see Doe v New York Univ., 6 Misc 3d 866, 880-881 [Sup Ct, NY County 2004]). Plaintiff maintains that, by the same principle, victims of sexual assault should be able to protect the confidentiality of their communications about the assault.

Paragraph 3 of the Confidentiality Order provides:

"'Confidential Information' shall mean all Documents, Testimony and Interrogatory Responses, and all information contained therein, designated as confidential pursuant to paragraph 2, if Such Documents, Testimony, or Interrogatory Responses contain or refer to medical records; personal, family, or professional history; the identity or personal information of witnesses who do not want to be publicly identified; financial records, or other information the disclosure of which would, in the good faith judgment of the party designating the material would, in the good faith judgment of the party designating the material as confidential, be detrimental to that party.***'Confidential Information' shall not include Documents or Testimony or Interrogatory Responses that (i) is publicly available or become publicly available after disclosure (other than by an act or omission of the Receiving Party to whom such disclosure is made in violation of this Order); (ii) Documents that were in possession of the Receiving Party prior to discovery in this matter; or (iii) is held by the Court not to constitute Confidential Information"

(NYSCEF Doc No. 322 at 2).

The Confidentiality Order provides, in paragraph 2, as follows:

"Either party may designate Documents produced, or Interrogatory Responses or Testimony given, in connection with this action as 'confidential,' either by notation on the document, response, statement on the record of the deposition, written advice to the respective undersigned counsel for the parties hereto, or by other appropriate means"

(id. at 1).

Paragraph 3 defines "Producing Party" and "Receiving Party" as:

"'Producing Party' shall mean the parties to this action and any third-parties producing 'Confidential Information' in connection with depositions, document production, interrogatory responses or otherwise, or the party asserting the confidentiality privilege, as the case may be.'Receiving Party' shall mean the party to this action and/or any non-party receiving 'Confidential Information' in connection with depositions, interrogatory responses, document production or otherwise"

(id. at 2).

Paragraph 4 states that:

"The Receiving Party may, at any time, notify the Producing Party that the Receiving party does not concur in the designation of a document or other material as confidential information. If the Producing Party does not agree to declassify such document or material, the Receiving Party may move before the Court for an order declassifying those documents or materials. If no such motion is filed, such documents or materials shall continue to be treated as Confidential Information"

(id. at 3).

CPLR 3103 (a) provides that "the court . . . make a protective order denying, limiting, conditioning or regulating the use of any disclosure device . . . to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." In sexual assault and rape cases, parties often stipulate to protective orders prohibiting the dissemination of confidential discovery (see George L. Blum, Annotation, Nondisclosure or Confidentiality Agreements in Cases of Sexual Harassment, Sexual Assault or Rape, 41 ALR7th 5). Indeed, the First Department has recognized that "[w]hile [a party] is entitled to relevant and necessary information, material confidential in nature, or information which is subject to abuse if widely disseminated, shall be accorded judicial safeguards where possible" (McLaughlin v G. D. Searle, Inc., 38 AD2d 810, 811 [1st Dept 1972]; accord Butt v New York Med. Coll., 7 AD3d 744, 745 [2d Dept 2004]).

The Court has also "routinely approved and enforced" "[c]onfidentiality orders with [*4]similar designation and challenge procedures" (Mann v Cooper Tire Co., 56 AD3d 363, 365 [1st Dept 2008], citing Nash v Port Auth. of NY & N.J., 298 AD2d 72, 76-77 [1st Dept 2002]). "If [defendant] disagree[s] with any of [plaintiff's] designations, [he is] free, under the order, to challenge [plaintiff's] designations and obtain a ruling from the court" (Mann, 56 AD3d at 365). Such so-ordered confidentiality agreements are interpreted in accordance with general contract interpretation principles (see Maxim, Inc. v Feifer, 161 AD3d 551, 554 [1st Dept 2018]; MSCI Inc. v Jacob, 120 AD3d 1072, 1075 [1st Dept 2012]).[FN2]

Here, the Confidentiality Order defines "Confidential Information" as "all Documents . . ., and all information contained therein, designated as confidential pursuant to paragraph 2, if such Documents . . . contain or refer to . . . personal, family or professional history" (NYSCEF Doc No. 322 at 2). The Confidentiality Order is clear and unambiguous. The plain language of the Confidentiality Order broadly defines "Confidential Information" as documents and information containing or referring to "personal history," which would include communications about events in plaintiff's past. The court's review of the communications at issue reveals that they contain information about the alleged sexual assault (Chaudry affirmation in support, exhibits B-1, B-2). Thus, plaintiff properly designated these communications as confidential. Furthermore, as the court noted at oral argument, "You [Defense counsel] are not saying that they have done something that's going to keep you from putting on a defense case at trial" (NYSCEF Doc No. 501, oral argument tr at 13). "My goal is to have this matter tried, and tried in a courtroom. My goal is not to assist the parties in their public relations campaigns. That can't be my objective" (id. at 24).

Moreover, the court notes that defendant, who is represented by counsel, voluntarily consented to the Confidentiality Order. If defendant wished to exclude these types of communications from the Confidentiality Order, defendant could have insisted upon different language (see Oxxford Info. Tech., Ltd. v Novantas, LLC, 78 AD3d 499, 499-500 [1st Dept 2010]).

Accordingly, defendant's motion is denied.

B. Defendant's Second Motion to Unseal Documents and Testimony (Motion Sequence Number 021)

Defendant also seeks to unseal: (1) messages between plaintiff and defendant; (2) all communications between plaintiff and her friends in the month after the incident; (3) messages between defendant and other alleged victims; and (4) the testimony of two other nonparty witnesses. With respect to the first two categories, defendant argues that plaintiff cannot demonstrate that good cause exists for maintaining confidentiality over documents that contradict the allegations of the complaint, i.e., that she did not consent to sexual activity with [*5]defendant.

As for the third category, defendant maintains that his messages with the other alleged victims "fully exonerate him of [the alleged victims'] bogus claims" (Chaudry affirmation in support, ¶ 31). At the same time, though, defendant states that "Defendant does not object to keeping the names of the individuals with whom Mr. Haggis exchanged those messages (and the contact information for those individuals) confidential for the time being" (id., ¶ 12). With respect to the fourth category, defendant contends that the testimony of these two nonparty witnesses "is not properly designated as confidential and should be unsealed, as it directly impeaches Plaintiff's knowing lies in the court of public opinion" (id., ¶ 7). Even so, "Defendant does not object to keeping the names of these two individuals who testified at their respective depositions (and the contact information for those individuals) confidential for the time being and would redact all references to their names from [the transcripts]" (id.). At oral argument, defendant argued that plaintiff's communications with defendant are excepted from the definition of "Confidential Information" under the Confidentiality Order. Defendant also pointed out that personal information is defined under the court rules as information such as a taxpayer identification number, social security number, employer identification number, date of birth, and bank account information (see 22 NYCRR 202.5 [e]).

Plaintiff argues, in opposition to defendant's motion, that defendant violated the Confidentiality Order by failing to notify the nonparty witnesses about his attempt to unseal their documents and testimony. Plaintiff asserts that this is a bad faith attempt by defendant to unseal only those cherry-picked documents that he believes will benefit him. Further, plaintiff contends that plaintiff's communications with defendant and her friends were properly designated as personal information, and that it would be detrimental to plaintiff if defendant were allowed to use those documents in his efforts to defame her in the press. According to plaintiff, defendant openly admits that he requests that these communications be unsealed so he can leak these messages to the media. Plaintiff further argues that defendant's messages with nonparty victims contain the "identity or personal information of witnesses who do not want to be publicly identified."

1. Documents and Testimony Concerning Nonparty Witnesses

The court first turns to defendant's request to declassify documents concerning nonparty witnesses that have accused him of inappropriate sexual conduct, and the testimony of two other nonparty witnesses. The Confidentiality Order states that "[e]ither party may designate Documents . . . or Testimony given . . . as 'confidential'" (NYSCEF Doc No. 433 at 1). "The Receiving party may, at any time, notify the Producing party that the Receiving party does not concur in the designation or other material as Confidential Information. If the Producing party does not agree to declassify such document or material, the Receiving party may move before the Court for an order declassifying those documents or materials" (id. at 3). Under the Confidentiality Order, "Producing party" shall mean the parties to this action and any third-parties producing "Confidential Information" in connection with depositions, document production, . . . ." (id. at 2 [emphasis supplied]). The Confidentiality Order further provides that "[a]ny nonparty invoking the Order shall comply with, and be subject to, all applicable sections of the Order" (id. at 10). Defendant does not address, in his moving papers, whether the nonparties agreed to declassify these documents and transcripts (Chaudry affirmation in support, exhibits C, D, E, F, I, J). Moreover, defendant did not submit a reply to refute plaintiff's argument. Therefore, defendant is not entitled to an order declassifying these documents and [*6]testimony. In any event, the court's review of the documents and transcripts that defendant seeks to unseal contain information relating to "the identity or personal information of witnesses who do not want to be publicly identified" (NYSCEF Doc No. 433 at 2).

2. Plaintiff's Communications with Her Friends

Defendant seeks to declassify communications that plaintiff had with her friends after the alleged sexual assault and rape (Chaudry affirmation in support, exhibit K). The court's review of these documents reveals that they contain information relating to plaintiff's personal history. Accordingly, plaintiff properly designated these documents as confidential pursuant to the Confidentiality Order.

3. Plaintiff's Communications with Defendant

Plaintiff designated certain communications that she had with defendant after the alleged sexual assault and rape as confidential (id., exhibit B). As argued by defendant, plaintiff's communications with defendant are not "Confidential Information" within the meaning of the Confidentiality Order. The Confidentiality Order excepts "Documents that were in the possession of the Receiving Party prior to discovery in this matter" (NYSCEF Doc No. 433 at 2). "Receiving Party" is defined therein as "the party to this action . . . receiving 'Confidential Information' in connection with . . . document production" (id.). Therefore, plaintiff is directed to produce copies of these communications to defendant without the confidential designations within 20 days.

C. Plaintiff's Motion to Seal NYSCEF Doc No. 470 and for Sanctions (Motion Sequence Number 023)

Plaintiff moves, by order to show cause, to seal the Zuckerman affirmation submitted in further support of defendant's motion seeking an extension of the end date for disclosure (NYSCEF Doc No. 470). Plaintiff also seeks sanctions pursuant to 22 NYCRR 130-1.1 against defendant and his counsel for violating the court's Confidentiality Order, in the form of: (a) an award of attorneys' fees and costs incurred in making the instant motion; and (b) the denial of defendant's pending motions to unseal and for an extension of the end date for disclosure.[FN3]

Plaintiff argues that, on Friday, October 11, 2019, at 5:28 p.m., defendant's counsel violated the Confidentiality Order by publicly filing the names and identities of four nonparty witnesses in the Zuckerman affirmation. Plaintiff contends that she had disclosed the names of these witnesses in her supplemental response to defendant's first set of interrogatories dated December 18, 2018. Plaintiff further asserts that she designated the contents of the interrogatory responses as confidential. At 7:08 p.m. on October 11, 2019, plaintiff's counsel notified defendant's attorneys that the filing violated the Confidentiality Order (Salzman affirmation in support, exhibit C). According to plaintiff, on October 12, 2019, defendant's counsel responded that "[a]ll of the information unredacted in our reply is based on information that is publicly available, information we have obtained from other sources, and/or communications with your firm and others that have not been designated confidential" (id.). Plaintiff argues that defendant's counsel's actions appear to be designed to harass and intimidate these witnesses. Alternatively, plaintiff speculates that defendant's counsel deliberately outed these witnesses in [*7]retaliation for a filing by plaintiff that included defendant's address.

Defendant argues, in opposition, that the names of the nonparty witnesses are not confidential under the definition of "Confidential Information" in the Confidentiality Order. Defendant maintains that a simple reference to their names in an interrogatory response does not permanently render the names of the individuals "Confidential Information" under the Confidentiality Order. According to defendant, none of the nonparties' attorneys or plaintiff's attorneys have been treating these names in a manner designed to protect the identities of the nonparties in communications between one another. Further, defendant points out that these nonparty witnesses have not expressed a desire to remain anonymous. Finally, defendant contends that there is publicly available information linking these four individuals — including their names — to plaintiff.

22 NYCRR 130-1.1 gives the court "in any civil action or proceeding before the court," the authority, in its discretion, to award "costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part" and/or to impose "financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part" (22 NYCRR 130-1.1 [a]). "The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both" (22 NYCRR 130-1.1 [b]).

Frivolous conduct is defined as conduct that: (1) "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; (2) "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or (3) "asserts material factual statements that are false" (22 NYCRR 130-1.1 [c]). The burden of proof is on the party seeking the imposition of a sanction or an award of attorney's fees that the conduct of the opposing party was frivolous within the meaning of the rule (Matter of Miller v Miller, 96 AD3d 943, 944 [2d Dept 2012]).

"In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party"

(22 NYCRR 130-1.1 [c]). In determining if sanctions are appropriate, the court must look at the

"broad pattern" of conduct by the offending attorneys or parties (Levy v Carol Mgt. Corp., 260 AD2d 27, 33 [1st Dept 1999]).

Defendant's counsel violated the Confidentiality Order by filing a document that contained the "identity or personal information of witnesses who do not want to be publicly identified" (NYSCEF Doc No. 475 at 2). The identities of these individuals were disclosed in plaintiff's supplemental responses to defendant's first set of interrogatories, which plaintiff designated as confidential (Salzman affirmation, exhibit B). If defendant's attorneys believed that plaintiff inappropriately designated this information as confidential, their recourse was to make a motion for an order declassifying the information as confidential. Therefore, the court shall direct that NYSCEF Doc No. 470 remain sealed.

Nevertheless, in the exercise of its discretion, the court finds that plaintiff has failed to demonstrate that the conduct of defendant's counsel was "completely without merit in law," or "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or [*8]maliciously injure another," or that defendant's counsel "assert[ed] material factual statements that are false" (22 NYCRR 130-1.1 [c]). Accordingly, sanctions are not warranted.

D. Defendant's Motion to Compel Jane Doe #2 and Jane Doe #3 to Continue their Depositions and/or Strike and/or Preclude (Motion Sequence Number 019)

Defendant seeks an order compelling Jane Doe #2 and Jane Doe #3 to complete their depositions. Defendant asserts that "[d]uring their prior depositions, both Jane Doe #2 and Jane Doe #3 walked out before the Defendant had the opportunity to complete his examination" (NYSCEF Doc No. 373 at 1-2). Specifically, defendant argues that he did not have "the opportunity to fully question Jane Doe #2 about several highly relevant topics that relate to the subject matter at issue before this Court" (id. at 5). In addition, defendant asserts that Jane Doe #3 "and her counsel abruptly left the deposition despite Defendant's protests" (id. at 7). Defendant requests, in the event that either witness refuses to complete their depositions, that: (1) the testimony of either or both witnesses be stricken; (2) the allegations by the non-cooperating witness be removed from the verified second amended complaint; and (3) plaintiff be prohibited from mentioning or referring to the Jane Does at trial.

For her part, plaintiff argues that defendant is not entitled to continued depositions of Jane Doe #2 or Jane Doe #3. According to plaintiff, defendant waited for more than two months after Jane Doe #2's deposition and more than one month after Jane Doe #3's deposition to seek these continued depositions. Additionally, plaintiff points out that defendant's counsel questioned Jane Doe #2 for four hours and two minutes, and Jane Doe #3 for three hours and seven minutes. Furthermore, as argued by plaintiff, defendant has not identified any questions or topics that he was unable to ask at either deposition.

Similarly, Jane Doe #2 argues, in opposition, that she was deposed pursuant to a subpoena issued under the California Code of Civil Procedure, which generally limits total deposition testimony to seven hours (see Cal Code Civ Pro 2025.290 [a]). Like plaintiff, Jane Doe #2 argues that defendant does not identify any topic not previously covered, nor did he seek a continuation of the deposition "without unreasonable adjournment" (CPLR 3113 [b]).

Defendant's motion for continued depositions of Jane Doe #2 and Jane Doe #3 is denied. Defendant has failed to demonstrate a substantial likelihood that the grant of his motion would lead to the disclosure of evidence material and necessary to his case (see Murtha v Board of Educ. of City of NY, 272 AD2d 230, 230-231 [1st Dept 2000] [denying plaintiff's request for additional and/or continued depositions]; cf. Parise v Good Samaritan Hosp., 36 AD3d 678, 680 [2d Dept 2007] [plaintiff was entitled to continued deposition concerning attending physicians, service attendings, specialists, doctors and employees who were available for consultation during admission]). As argued by plaintiff, defendant deposed Jane Doe #2 for more than four hours and Jane Doe #3 for more than three hours. Moreover, defendant has not identified any questions that he was unable to ask previously.

In any event, the court finds no basis to strike the deposition testimony of Jane Doe #2 or Jane Doe #3, two nonparty witnesses. CPLR 3126 provides that "[i]f any party or person who at the time a deposition is taken is otherwise under a party's control refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may order such orders with regard to such failure or refusal . . . ." "If a nonparty is the one who has failed to disclose, the remedy is not a motion under CPLR 3126" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of [*9]NY, C3126:1). Moreover, although defendant requests that the Jane Doe allegations be stricken, the First Department has stricken the Jane Doe allegations in the complaint, given that they were not necessary to satisfy the animus element of VGM and were prejudicial to defendant (see Breest, 180 AD3d at 95). Furthermore, the First Department also noted that "whether evidence of such prior alleged sexual misconduct would be admissible at trial in this case to demonstrate absence of consent, or for some other evidentiary purpose, is not before us" (id. at 95 n 3).

Accordingly, defendant's motion to compel the continuation of the depositions of Jane Doe #2 and Jane Doe #3 and/or strike and/or preclude is denied.

E. Plaintiff's Motion to Quash Subpoenas to Take Nonparty Depositions and for a Protective Order (Motion Sequence Number 020)

Plaintiff moves to quash defendant's subpoenas to take two nonparty depositions and for a protective order. Plaintiff argues that: (1) defendant failed to give 20 days' notice, as required by CPLR 3107; (2) these nonparty depositions were not scheduled in the court's status conference order dated August 15, 2019; and (3) plaintiff has had sufficient time to depose these witnesses, and has received four extensions to complete discovery.

In opposition, defendant argues that the testimony of plaintiff's friends is relevant and discoverable. Defendant maintains that he properly subpoenaed the nonparties on May 31, 2019, and gave sufficient notice of their rescheduling pursuant to CPLR 2305 (a).

CPLR 3107 provides that "[a] party desiring to take the deposition of any person upon oral examination shall give to each party twenty days' notice, unless the court orders otherwise." "If there is to be any variation in this requirement, it is for the parties to agree on by stipulation or the court to provide by order" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, C3107:1).

Here, the subpoenas must be quashed because defendant failed to give the required notice (see CPLR 3107; Helm v Gwenn Lentine, M.D., P.C., 60 AD3d 632, 633 [2d Dept 2009]; Monaco v Camie-Campbell, Inc., 256 AD2d 1214, 1216 [4th Dept 1998], appeal dismissed, lv denied 93 NY2d 887 [1999]).[FN4] On May 31, 2019, defendant issued subpoenas to take the depositions of nonparty witness A and nonparty witness B on June 26, 2019 and June 27, 2019, respectively (Salzman affirmation, exhibits A, B). On June 18, 2019, defendant's former counsel cancelled the depositions (id., exhibit C). On September 3, 2019, defendant's attorneys stated that they planned to depose witness A on September 18, 2019 and witness B the week of September 16, 2019, and asked plaintiff's counsel to confirm their availability (id., exhibit D). On September 9, 2019, defendant's counsel emailed plaintiff's counsel and stated that the deposition of witness A would be held on September 18, 2019 (id., exhibit E). On September 5, 2019, defendant's counsel emailed witness B's attorney and asked if the witness was available on the afternoon of September 18, 2019 (id., exhibit F). The court did not order less than 20 days' notice.

Defendant's reliance on CPLR 2305 (a) is misplaced. CPLR 2305 (a) states that "[a] [*10]subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date of the trial, hearing or examination. If he is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date." "Under CPLR 2305 (subd [a]) a subpoena containing a reservation for any recessed or adjourned date is enforceable without the necessity of further process if the witness has reasonable notice of such adjourned date" (Maritime Fish Prods. v World-Wide Fish Prods., 100 AD2d 81, 90 [1st Dept 1984], appeal dismissed 63 NY2d 675 [1984]). CPLR 2305 (a) does not eliminate CPLR 3107's requirement that the party seeking to take a deposition give each party 20 days' notice.

In view of the above, plaintiff's motion to quash subpoenas to take nonparty depositions is granted.

F. Defendant's Motions to Extend the End Date for Disclosure and to Vacate the Note of Issue (Motion Sequence Numbers 022 and 024)

Defendant seeks a 60-day extension to complete discovery. Defendant also moves to vacate the note of issue, arguing that the certificate of readiness incorrectly states that discovery is complete. Additionally, defendant requests additional time to move for summary judgment.

In opposition to both motions, plaintiff argues that defendant is not entitled to an extension of time because any outstanding discovery is the result of defendant's own dilatory conduct.

22 NYCRR 202.21 (e) provides that:

"(e) Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. . . . If the motion to vacate a note of issue is granted, a copy of the order vacating the note of issue shall be served upon the clerk of the trial court."

"Where a party timely moves to vacate a note of issue, it need show only that 'a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of . . . section [202.21] in some material respect'" (Vargas v Villa Josefa Realty Corp., 28 AD3d 389, 390 [1st Dept 2006], quoting 22 NYCRR 202.21 [e]). The First Department has very recently held, for instance, that "[a] note of issue should be vacated when [it] is based upon a certificate of readiness which contains an erroneous fact, such as that discovery has been completed" (Ruiz v Park Gramercy Owners Corp., — AD3d — , 2020 NY Slip Op 02260, *1 [1st Dept 2020] [internal quotation marks and citation omitted]).

Here, the note of issue was filed on October 15, 2019 (NYSCEF Doc No. 472). Defendant timely moved to vacate the note of issue on October 24, 2019 (NYSCEF Doc No. 483). The certificate of readiness states that "[d]iscovery now known to be necessary completed" (NYSCEF Doc No. 486). As noted by defendant, however, he had served notices to inspect property, notices for discovery and inspection, and demands for interrogatories prior to the filing of the note of issue. Defendant also states that the nonparty witnesses that are the [*11]subject of motion sequence number 020 may possess critical information to present a defense. In light of the ongoing covid-19 health pandemic, the court shall vacate the note of issue and extend the end date for disclosure to 90 days from the date of this decision and order.

That said, the court denies defendant's request for an extension of the time to move for summary judgment.

CONCLUSION

Accordingly, it is

ORDERED that the motion (sequence number 017) of defendant to unseal documents and information is denied; and it is further

ORDERED that the motion (sequence number 019) of defendant to compel completion of the depositions of nonparty witnesses Jane Doe #2 and Jane Doe #3 and/or preclude and/or strike is denied; and it is further

ORDERED that the motion (sequence number 020) of plaintiff to quash subpoenas and for a protective order is granted; and it is further

ORDERED that the motion (sequence number 021) of defendant to unseal documents is granted only to the extent of declassifying the confidential designation of communications between plaintiff and defendant in exhibit B to the Chaudry affirmation, and is otherwise denied; and it is further

ORDERED that plaintiff shall produce the communications between plaintiff and defendant in exhibit B to the Chaudry affirmation without the confidential designation within 20 days; and it is further

ORDERED that the motion (sequence number 022) of defendant to extend the end date for disclosure is granted, and

ORDERED that the motion (sequence number 023) of plaintiff, by order to show cause, to seal the Zuckerman affirmation (NYSCEF Doc No. 470) and for sanctions is granted only to the extent that NYSCEF Doc No. 470 shall be sealed and the County Clerk is directed to mark said document sealed upon service of a copy of this order with notice of entry, and is otherwise denied; and it is further

ORDERED that the motion (sequence number 024) of defendant to vacate the note of issue is granted and the case is stricken from the trial calendar; and it is further

ORDERED that all further discovery shall be completed within 90 days from service of a copy of this decision and order with notice of entry; and it is further

ORDERED that, within 10 days from the entry of this order, defendant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further

ORDERED that, within 15 days from completion of discovery as hereinabove directed, the plaintiff shall cause the action to be placed upon the trial calendar by the filing of a new note of issue and certificate of readiness (for which no fee shall be imposed), to which shall be attached a copy of this order; and it is further

ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).

Date: 5/18/2020 Footnotes

Footnote 1:CPLR 213-c, entitled "Action by victim of conduct constituting certain sexual offenses," provides that "Notwithstanding any other limitation set forth in this article, except as provided in subdivision (b) of section two hundred eight of this article, all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute rape in the first degree as defined in section 130.35 of the penal law . . . or criminal sexual act in the first degree as defined in section 130.50 of the penal law . . . or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law . . . may be brought against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of the said conduct, within twenty years."

Footnote 2:In Nash, supra, the First Department noted that 22 NYCRR 216.1 (a) — which requires "a written finding of good cause" — "sets forth the standard for sealing 'court records,' but 22 NYCRR 216.1 (b) specifically carves out an exception for documents obtained in discovery, providing that they remain subject to protective orders as set forth in CPLR 3103 (a)" (Nash, 298 AD2d at 79-80; see also Eusini v Pioneer Elecs. (USA), Inc., 29 AD3d 623, 625 [2d Dept 2006] [materials "remain at this juncture merely disclosure materials and, therefore, not subject to a sealing order pursuant to 22 NYCRR 216.1"]).

Footnote 3:Although plaintiff requests relief in the form of denial of defendants' pending motions, 22 NYCRR 130-1.1 (b) only authorizes the award of costs or financial sanctions.

Footnote 4:Nevertheless, as the court is vacating the note of issue, defendant may re-serve subpoenas to take these nonparty depositions, if so advised.