Theroux v Resnicow

[*1] Theroux v Resnicow 2020 NY Slip Op 51142(U) Decided on September 30, 2020 Supreme Court, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2020
Supreme Court, New York County

Justin Theroux, Plaintiff,

against

Norman Resnicow, Barbara Resnicow, 71 Washington Place Owners, Inc., and Board of Directors of 71 Washington Place Owners, Inc., Defendants.



154642/2017



Pryor Cashman LLP, New York, NY (Bryan T. Mohler and Daniel V. Derby of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow
Gerald Lebovits, J.

This order addresses discovery disputes between plaintiff, Justin Theroux, and defendants Norman Resnicow and Barbara Resnicow (defendants or Resnicows), as raised and discussed at a status conference with this court held on September 24, 2020.

The parties did agree on the following points, which are hereby ordered by this court:

(a) The deposition of Pat Doudna is to be held on two consecutive days on or before November 17, 2020; this deposition shall occur prior to other depositions if held by this date. If the Doudna deposition is not held by November 17, (except by reason of adjournments requested by plaintiff), plaintiff may proceed with taking other depositions.

(b) All other previously noticed depositions shall be completed by February 15, 2021.

(c) Third-party discovery shall be completed by February 15, 2021.

(d) All depositions shall be conducted fully remotely unless all counsel, the witness, and the court reporter agree to arrange another method.

The parties also extensively disagreed on several other aspects of discovery. The court's determinations on those disagreements are set forth below.

(1) Marital Privilege

The Resnicows previously withheld, in whole or in part, approximately 70 documents (mostly emails) on the ground that they were shielded by the marital privilege. Plaintiff contends that the accompanying privilege log suggests that many of the withheld materials are not privileged and therefore should be produced; the Resnicows dispute this contention. This court concludes that this disagreement is best resolved by reviewing the documents itself in camera. [*2]Accordingly, the court directs the parties to confer within 14 days of entry of this order on which documents are to be submitted to this court for review. Counsel for defendants shall then provide the documents electronically to the court (by email, Dropbox link, or similar means); and the court will notify counsel for plaintiff upon receipt. The court will review the documents and expeditiously render appropriate privilege determinations.

(2) Defendants' Fourth Set of Interrogatories

In this court's most recent status conference order, the court gave leave to the Resnicows to serve "a further interrogatory asking [plaintiff] to specify the operative legal theory of damages on [plaintiff's] nuisance claim." (See NYSCEF No. 247.) In March 2020 the Resnicows served a fourth set of interrogatories pursuant to this aspect of the status-conference order. Plaintiff responded in part and objected in part to the fourth set of interrogatories. The Resnicows now request that plaintiff be required to supplement his responses to Nos. 1-4 of the fourth set of interrogatories. The request is denied.

Interrogatories 1(a), 1(b), 2(a), and 2(b) seek elaboration on how, and on what legal theory, statements and conduct of defendant Norman Resnicow that occurred outside of plaintiff's presence and were directed toward third parties caused measurable monetary harm to plaintiff. Plaintiff, without waiving his objections to these interrogatories, responded to each interrogatory that

Attorney Resnicow engaged in conduct (including but not limited to his statements, emails, and interactions with third parties) which substantially, intentionally, and unreasonably interfered with Plaintiff's use and quiet enjoyment of his apartment, resulting in, without limitation, discomfort, inconvenience and a noxious and hostile environment, and damaging Plaintiff by, among other things, causing a material diminution in the fair market value of Plaintiff's apartment.

This court concludes, over defendants' (vigorous) objection, that this answer sufficiently responds to Interrogatories 1(a), 1(b), 2(a), and 2(b). The Resnicows, citing precedents of the Appellate Division, First Department, contend that plaintiff should be required to itemize and explain further the extent and basis for his claimed damages. But, as plaintiff points out, the cited precedents make clear that plaintiffs may properly be required to identify, itemize, and explain damages calculations in interrogatory responses only to the extent that such information is in their possession. This court finds persuasive plaintiff's argument that further specificity must await the not-yet-available findings and conclusions of his retained expert on the decrease in fair-market value that can (assertedly) be ascribed to the Resnicows' actions. The Resnicows' counsel emphasizes the potential for prejudice resulting from the continued unavailability of specifics on the damages sought on plaintiff's nuisance claim. It is not clear to this court, however, how the Resnicows are prejudiced at this time, given that depositions are ongoing and that no expert discovery has yet occurred.

Interrogatories 1(c), 1(d), 2(c), and 2(d) seek an explanation of the methodology for calculating the damages described in subparts (a) and (b), and the legal theory validating that methodology. This court concludes (again over defendants' objection) that plaintiff permissibly refused to respond to these interrogatory subparts. Subparts (c) and (d) exceed the scope of the court's prior status order: the order granted leave only to seek elaboration on the operative legal theory of damages underlying plaintiff's nuisance claim—not the specific method for calculating damages. And, as discussed above, articulation of the particular method used to calculate plaintiff's damages (and the explanation for that choice of method) is best left to the expert-[*3]discovery process in any event.

Interrogatories 3 and 4 ask plaintiff first to state whether he contends that the fair-market value, rental value, or usable value of his apartment was diminished by conduct by Norman Resnicow; and then to explain why any such diminution would occur and the method for calculating such diminution. Plaintiff's response largely repeated his answer to Interrogatories 1(a), 1(b), 2(a), and (2(b) quoted above; and also expressly stated that his nuisance claim encompassed the diminution in fair-market, rental, or usable value assertedly due to Norman Resnicow's conduct.

This court concludes, again over defendants' objection, that plaintiff has sufficiently responded to these interrogatories. Requiring a further response would impose an obligation beyond the scope of this court's prior conference order. And the issue of causation can be appropriately developed (and contested) in the course of expert discovery.

(3) Defendants' Fifth Set of Interrogatories

In June 2020, the Resnicows served a (lengthy) fifth set of interrogatories in response to a supplemental document production by plaintiff. Plaintiff objected to each of these interrogatories and refused to respond. The Resnicows now ask this court to require plaintiff to provide responses. The request is granted in part and denied in part.

Interrogatories 1 and 2: Plaintiff's counsel stated orally at the status conference that the answers to these interrogatories were "yes," and "each and every," respectively. These answers adequately respond to the interrogatories. To the extent that defendants would prefer these answers to be provided formally in a written and verified interrogatory response, they shall within seven days of entry of this order notify plaintiff's counsel; and plaintiff shall provide that response within seven days of receiving any such request.

Interrogatory 3: This court concludes that plaintiff must within 30 days respond to interrogatory subparts 3(a) and 3(b). The court also concludes, over defendants' objection, that plaintiff permissibly objected to the remainder of this interrogatory's subparts for the reasons stated above with respect to the fourth set of interrogatories.

Interrogatories 4-21: This court concludes (again over defendants' objection) that plaintiff permissibly refused to respond to these interrogatories. On the showing made at the September 24 status conference, the court does not agree with defendants that plaintiff's June 2020 supplemental document production made relevant the information sought in these interrogatories. The court notes that defendants have expressly reserved their right to move to compel the information sought therein.

Interrogatories 22, 24, 26, 28, 30, 32, 34, 36, 38, 40: Plaintiff has agreed to respond to these interrogatories. Plaintiff's responses shall be served within 30 days of entry of this order.

Interrogatories 23, 25, 27, 29, 31, 33, 35, 37, 39, 41: This court concludes, over defendants' objection, that plaintiff need not further respond to these interrogatories, for the reasons stated above with respect to the fourth set of interrogatories.

Interrogatories 42, 44, 46, 48, 50, 52: Plaintiff has supplemented his response to these interrogatories by email to counsel for defendant. Plaintiff has also represented that he will promptly serve defendant with a properly verified version of this supplemental response.

Interrogatories 43, 45, 47, 49, 51: These interrogatories are rendered academic by plaintiff's supplemental response to Interrogatories 42, 44, 46, 48, and 50.

Interrogatory 53: Plaintiff has provided a supplemental response to this interrogatory, refusing to provide an answer on the ground that answering it "would require counsel to divulge [*4]mental impressions and legal theories." To the extent that defendants object to this supplemental response, they shall notify plaintiff in writing within 7 days of entry of this order; defendants shall also send a copy of any such notification to the court by email to mhshawha@nycourts.gov.

(4) Defendants' Third Set of Document Requests

In addition to the fifth set of interrogatories, the Resnicows also served a third set of document requests on plaintiff in June 2020. Plaintiff refused to produce any documents. The Resnicows now ask this court to require plaintiff to provide responsive documents. The request is granted in part and denied in part.

Requests 1, 2, 3: These requests are both overbroad and of questionable relevance to the claims and defenses in this action. Plaintiff need not produce documents responsive to these requests.

Requests 4, 5: Plaintiff has agreed to provide documents responsive to these requests. The documents shall be produced within 30 days from entry of this order.

Requests 7-14: These requests are both overbroad and of questionable relevance to the claims and defenses in this action. Plaintiff need not produce documents responsive to these requests.

Requests 15, 16: The resolution of these requests is deferred pending plaintiff's responses to the various image-creation interrogatories in defendants' fourth set of interrogatories. Defendants shall, within fourteen days of receiving those responses, notify plaintiffs whether they still wish to pursue these document requests. If a disagreement about these requests then arises that requires the involvement of this court, the parties shall notify the court by email to mhshawha@nycourts.gov.

(5) The Timing of Defendants' Depositions

Finally, the parties disagree on the timing of the Resnicows' depositions, which have not yet been held. Now pending before this court is a motion by plaintiff to compel certain communications over which a claim of privilege has been raised. Defendants argue that the Resnicows' depositions should not proceed until a final determination has been rendered on that motion to compel—including any appellate review of this court's decision. Plaintiff's position is that these depositions can (and should) be bifurcated: one part limited to subjects and information covered in the documents already produced; and one part addressing subjects and information covered in the documents sought in the motion to compel, should this court direct production of those documents.

This court agrees with plaintiff. The potential delay that might result from delaying any depositions of the Resnicows pending full appellate resolution of the pending motion to compel is simply too great. The depositions are therefore directed to be held on a bifurcated basis as plaintiff has proposed, with the first part of each deposition to occur on or before February 15, 2021. (Plaintiff has reserved its right to depose Barbara Resnicow either before or after Norman Resnicow.)

The next status conference in this matter shall be held telephonically on January 21, 2021. Plaintiff's note of issue deadline is hereby extended on consent until March 1, 2021.

Dated: September 30, 2020

Hon. Gerald Lebovits

J.S.C.