BDO USA, LLP v Morris

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BDO USA, LLP v Morris 2022 NY Slip Op 33217(U) September 23, 2022 Supreme Court, New York County Docket Number: Index No. 652352/2020 Judge: Andrew S. Borrok 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. INDEX NO. 652352/2020 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 ----------------------------------------------------------------------------------- X BOO USA, LLP, INDEX NO. Plaintiff, MOTION DATE 07/20/2022, 07/27/2022, 07/28/2022, 08/04/2022, 08/30/2022, 09/08/2022 MOTION SEQ. NO. 019 020 021 022 023 024 - V - STEPHEN MORRIS, JAMES ANDREW STILES, Defendant. 652352/2020 DECISION+ ORDER ON MOTION ----------------------------------------------------------------------------------- X HON. ANDREWS. BORROK: The following e-filed documents, listed by NYSCEF document number (Motion 019) 316,317,318,319, 320,321,322,323,324,325,326,404,405,406,407,408 DISMISS were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 020) 327, 328, 329, 330, 331,332,333,334,335,336,337,338,339,340,341,342,343,344,345,346,347,348,349,350, 351,352,353,354,355,356,357,358,359,398,418,419,420 DISCOVERY were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 021) 360, 361, 362, 363, 364,365,366,367,368,369,370,371,372,373,374,375,376,377,378,379,380,381,382,383, 384,385,386,387,388,389,390,391,392,393,395,410,411,412,413,414,415,416,417 DISCOVERY were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 022) 396, 397, 401 were read on this motion to/for SEAL The following e-filed documents, listed by NYSCEF document number (Motion 023) 422, 423, 433 were read on this motion to/for SEAL The following e-filed documents, listed by NYSCEF document number (Motion 024) 425,426,427,428, 429,430,431,432,434,435,436,437 ORDER OF PROTECTION were read on this motion to/for 652352/2020 BDO USA, LLP vs. MORRIS, STEPHEN Motion No. 019 020 021 022 023 024 [* 1] Page 1 of 5 1 of 5 INDEX NO. 652352/2020 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/23/2022 Upon the foregoing documents and for the reasons set forth on the record, BDO USA, LLP' s (BDO) motion (Mtn. Seq. No. 019) to dismiss James Stiles' third amended counterclaims and Stephen Morris' (Mr. Styles and Mr. Morris, hereinafter, collectively, the Defendants) first counterclaim is denied with respect to the defamation counterclaim. On a motion to dismiss, the pleading is to be afforded a liberal construction and the Court must accept the facts as alleged as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Simply put, although it is of course appropriate to inform a client that the person handling their account is no longer with the firm and introduce the person who will be assuming the relationship, there does not appear to be a legitimate purpose in indicating that the defendants were implicated in a conspiracy or for attaching the complaint or for indicating that Ms. Cozza was shocked other than to besmirch the Defendants. Stated differently, the emails can not be said to lack the "sting" of defamation. The claim for tortious interference however fails. In sum and substance, Mr. Stiles argues that BDO slow rolled work to its client Phlow to hurt his relationship with Phlow where he had gone to work. This can not be said to be conduct directed at Mr. Stiles (Arnon Ltd. V Beierwaltes, 125 AD3d 453,454 [1st Dept 2015]). Indeed, taking the allegations as the court must at this stage of the litigation, it is BDO' s relationship with Phlow that would be hurt - not Mr. Stiles. As previously discussed, the serving of legitimate subpoenas can also not be said to be the basis for this claim. The motions to compel discovery (Mtn. Seq. Nos. 20 and 21) are granted to the extent set forth on the record. 652352/2020 BDO USA, LLP vs. MORRIS, STEPHEN Motion No. 019 020 021 022 023 024 [* 2] Page 2 of 5 2 of 5 INDEX NO. 652352/2020 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/23/2022 As discussed on the record, BDO's motions to seal (Mtn. Seq. Nos. 22 and 23) are granted solely to the extent of permitting BDO to redact the personal contact information contained in these documents and client information but is otherwise denied. BDO shall upload redacted reflecting only those redactions by Wednesday, September 28, 2022. Lastly, as discussed on the record, BDO's motion for a protective order and to quash (Mtn. Seq. No. 024) must be granted solely to the extent that the Morgan Franklin subpoena must be quashed. It is hereby ORDERED that BDO's motion to dismiss (Mtn. Seq. No. 019) Mr. Stiles' counterclaim for tortious interference with business relationship (third counterclaim) is granted without prejudice; and it is further ORDERED that BDO's motion to compel (Mtn. Seq. No. 020) is granted in part; and it is further ORDERED that Mr. Stiles shall produce to BDO or produce an affidavit indicating that he has duly produced all documents on or before October 21, 2022, the following documents: all documents and communications as requested by BDO except for the joint defense agreement by, between, or among Mr. Stiles, Mr. Jia-Sobota, Mr. Morris, and EverGlade; and it is further ORDERED that defendant shall, within 30 days from production of the aforesaid documents, produce [John Jones or a witness with knowledge of the facts] for deposition, at the office of counsel for plaintiff, on a date and at a time convenient for the parties; and it is further 652352/2020 BDO USA, LLP vs. MORRIS, STEPHEN Motion No. 019 020 021 022 023 024 [* 3] Page 3 of 5 3 of 5 INDEX NO. 652352/2020 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/23/2022 ORDERED that Defendants' motion to compel (Mtn. Seq. No. 021) is granted; and it is further ORDERED that BDO shall produce to Defendants or produce an affidavit indicating that it has duly produced all documents on or before October 21, 2022, the following documents: all documents and communications as requested by Defendants; and it is further ORDERED that the Clerk of the Court is directed to seal NYSCEF Doc. Nos. 382, 383,384,385, 386, 387, 388, 389, 390, 391, 392, 412, 413, 414, 415, 416, and 417 in this action in its entirety (Mtn. Seq. Nos. 022, 023) upon service on him (60 Centre Street, Room 141B) of a copy of this order with notice of entry; and it is further ORDERED that thereafter, or until further order of the Court, the Clerk of the Court shall deny access to NYSCEF Doc. Nos. 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 412, 413, 414, 415, 416, and 417 to anyone (other than the staff of the Clerk or the court) except for counsel of record for any party to this case and any party; and it is further ORDERED that such service upon the Clerk of the Court 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); and it is further 652352/2020 BDO USA, LLP vs. MORRIS, STEPHEN Motion No. 019 020 021 022 023 024 [* 4] Page 4 of 5 4 of 5 INDEX NO. 652352/2020 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/23/2022 ORDERED that BDO shall upload a redacted version ofNYSCEF Doc. Nos. 382,383,384,385, 386, 387, 388, 389, 390, 391,392,412,413,414,415,416, and 417 on or before September 23, 2022, at 5:00 PM; and it is further ORDERED that BDO's motion for a protective order and to quash (Mtn. Seq. No. 024) is granted solely to the extent that the Defendant's Mor an Franklin subpoena must be quashed. 9/23/2022 ANDREWS. BORROK, J.S.C. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 652352/2020 BDO USA, LLP vs. MORRIS, STEPHEN Motion No. 019 020 021 022 023 024 [* 5] GRANTED IN PART • • OTHER REFERENCE Page 5 of 5 5 of 5

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