Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd. et al

Filing 162

OPINION AND ORDER: The deposition of Herbert Rubin is closed and Nimkoff and RKO are limited to 20 written interrogatories to obtain further discovery from H&R attorneys Ian Ceresney and Arthur Strauss. (Signed by Magistrate Judge Henry B. Pitman on 2/25/2013) Copies Mailed By Chambers. (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
NIMKOFF ROSENFELD & SCHECHTER,
LLP,

:
:

07 Civ. 7983 (DAB)(HBP)

:

OPINION
AND ORDER

Plaintiff,
-against:
RKO PROPERTIES, LTD., et al.,
:
Defendants.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

This is an action by plaintiff Nimkoff Rosenfeld &
Schechter, LLP ("Nimkoff"), a law firm, to recover the fee it
claims it is owed for representing RKO Properties, Ltd. ("RKO")
in an action in New York State court.

RKO denies that it owes

money to Nimkoff and claims that Nimkoff committed malpractice.
I write to resolve the parties' outstanding applications to take
additional discovery from the law firm -- Herzfeld & Rubin
("H&R") -- that represented RKO's adversary in the state court
action.
For the reasons set forth below, the applications are
denied in part, and granted in part.

II.

Background

Nimkoff commenced this action against RKO to recover
fees it alleges it is owed from its representation of RKO in RKO
Properties v. Shaya Boymelgreen, et al. (the "Boymelgreen
Action").

RKO claims that the fee agreement between Nimkoff and

RKO was modified in or around the time that a settlement in the
Boymelgreen Action was reached.

RKO has also counterclaimed

against Nimkoff for malpractice.

It claims that but for

Nimkoff's representation, it would have been able to negotiate a
more favorable settlement in the Boymelgreen Action.
Both parties have sought discovery from H&R, the law
firm that represented RKO's adversary in the Boymelgreen Action.
According to the parties, there are critical factual disputes
about what transpired between RKO and Nimkoff during the
settlement negotiations of the Boymelgreen Action, including
whether the fee agreement between Nimkoff and RKO was modified
and the circumstances surrounding Nimkoff's exclusion from the
settlement negotiations.

Notwithstanding that there are no facts

that suggest that H&R played any role in these events or was even
privy to these conversations between attorney and client, the
parties nevertheless claim that H&R and its attorneys may have
relevant information by virtue of the fact that they represented

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RKO's adversary at that time.
H&R has produced numerous documents in this action.

In

addition, the parties have deposed two attorneys who worked on
the Boymelgreen Action for H&R.

Sharon Schweidel, a former H&R

associate, answered questions about her involvement in the
underlying litigation and her knowledge of the settlement
negotiations (Ex. L to Letter from Daniel Ecker, Esq., dated
January 9, 2013 ("Ecker Letter")).

In addition, Herbert Rubin,

Esq., a senior member of H&R, submitted to a full day deposition
in this action (Ex. A to Ecker Letter).
By an order dated December 19, 2012, I directed Nimkoff
and RKO to provide me with a copy of the transcript of Mr.
Rubin's deposition, a list of the additional topics they wish to
explore with H&R or its attorneys and an explanation as to why
these additional topics were not explored at Mr. Rubin's
deposition (Docket Item 159).
RKO claims that it needs to depose Mr. Rubin further
on:

(1) the reason why the defendants in the Boymelgreen Action

did not timely consummate the settlement; (2) other aspects of
the settlement negotiations; (3) the requirements for delivery of
the releases, breaches of the settlement agreement and the entry
of judgment in favor of H&R against RKO and (4) the manner in
which H&R maintains its email and other correspondence (Letter
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from Ira D. Tokayer, Esq, dated January 9, 2013 ("Tokayer
Letter")).

RKO claims that it was not able to complete its

examination concerning these topics because Mr. Rubin terminated
the deposition early.

RKO makes very little attempt to explain

the relevancy of these topics, other than to assert that it did
not have a full opportunity to inquire into these areas that
Nimkoff had explored in its examination and that these topics may
shed light on the fee arrangement between Nimkoff and RKO.

RKO

also seeks to depose Arthur Strauss -- another attorney from H&R
-- who it claims has the most knowledge about the consummation of
the settlement in the Boymelgreen Action.
Nimkoff has taken no position with respect to the
continuation of Mr. Rubin's deposition, but instead seeks to
depose Ian Ceresney, the H&R attorney who had primary
responsibility for the settlement negotiations in the Boymelgreen
Action.

According to Nimkoff, Mr. Ceresney's testimony is

relevant because he may have knowledge about (1) whether the
document purporting to modify the fee agreement between Nimkoff
and RKO ever became effective and (2) the settlement negotiations
after Nimkoff was excluded (Ecker Letter at 7; see also Letter
from Daniel Ecker, Esq., dated January 23, 2013).
Mr. Rubin requests that the subpoenas to Mr. Strauss
and Mr. Ceresney be vacated and that the request to continue his
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deposition be denied.

In addition, he requests that if any

further discovery is permitted from H&R that it be limited to
written interrogatories (Letter from Herbert Rubin, Esq., dated
January 14, 2013 ("Rubin Letter")).

III.

Analysis

A.

Mr. Rubin's Deposition

The application to continue the deposition of Mr. Rubin
is denied, and Mr. Rubin's deposition is closed.
I have carefully reviewed the transcript of Mr. Rubin's
deposition (Transcript of Rubin Deposition, attached as Ex. A to
Ecker Letter ("Rubin Tr.")).

Both Nimkoff and RKO questioned Mr.

Rubin on topics that have minimal -- if any -- relevance to the
issues in this action.

For example, both parties questioned Mr.

Rubin on court documents that H&R submitted in connection with
the Boymelgreen Action and affidavits that Mr. Rubin himself
submitted.

The relevance of these documents to the claims at

issue here is close to non-existent.

The documents speak for

themselves, and, unless Mr. Rubin is retained as an expert, any
assessment or opinion that Mr. Rubin may have of them is
irrelevant to a legal malpractice claim which is judged by an
objective standard.

See Rubens v. Mason, 387 F.3d 183, 189 (2d

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Cir. 2004).

Neither party has identified any factual disputes

concerning the Boymelgreen Action that are not illuminated by the
court record or of which Mr. Rubin would have unique personal
knowledge.
I also note that counsel for RKO spent an inordinate
amount of time examining Mr. Rubin on matters wholly unrelated to
this action.

For example, RKO's counsel questioned Mr. Rubin

about H&R's internal processes, including the manner in which it
sets up its client files (see, e.g., Rubin Tr. at 135:21-25 ("Q
[Mr. Tokayer]:

Is it the practice of the Herzfeld & Rubin firm

when it is retained to represent the client to assign a client
matter number?

A [Mr. Rbuin]:

We -- we assign a client number

to matters that we act as attorneys.")) and its use of email and
other forms of correspondence (see, e.g., 143:4-151:3).

H&R's

internal practices have absolutely no bearing on the fee dispute
or the malpractice claim here.
RKO's counsel also persisted in asking Mr. Rubin
whether affidavits he submitted in the Boymelgreen Action and
swore were true were, in fact, true (see, e.g., Rubin Tr. at
152:24-162:6; 172:14-173:23; 175:2-177:16).

RKO has not

identified any factual basis to doubt the accuracy of Mr. Rubin's
affidavits, and its examination of Mr. Rubin concerning these
documents was entirely ineffectual and wasteful.
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Put simply, RKO

squandered its opportunity to question Mr. Rubin on potentially
relevant matters in favor of questioning him on irrelevant
matters and matters that were not in genuine dispute.

Given

RKO's improvidence, there is no reason for Mr. Rubin to submit to
additional questioning.
It is also relevant to note that Mr. Rubin is the
second H&R attorney that the parties have deposed.

On December

26, 2012, the parties deposed Sharon Schweidel, a former
associate at H&R, who had the day-to-day responsibility in the
Boymelgreen Action (Transcript of Schweidel Deposition, attached
as Ex. L to Ecker Letter).

The parties questioned her about the

work she performed in connection with the Boymelgreen Action, as
well as inquiring as to the work performed by other H&R
attorneys.

This line of questioning, however, has minimal

relevance to the action here.

Whatever work H&R performed in the

underlying Boymelgreen Action is not probative of the fee
arrangement between Nimkoff and RKO or Nimkoff's alleged
malpractice.

Furthermore, as explained above, Ms. Schweidel's

opinion of the quality of Nimkoff's representation is not
relevant to the malpractice claim.
In light of the fact that the parties have deposed two
H&R attorneys on whatever relevant knowledge they may have and

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that both parties used their time pursuing relatively irrelevant
matters, any further examination of Mr. Rubin is not warranted.
Finally, the topics that RKO has identified as
warranting further examination of Mr. Rubin have no relevance to
the claims at issue in this litigation.

The settlement

discussions and the reasons underlying whatever delays there may
have been proceeding the execution of the settlement agreement in
the Boymelgreen Action does not bear on the issue of the fees
that Nimkoff claims it is owed from RKO.

The fee agreement

between Nimkoff and RKO was a private arrangement, and there is
no indication that Rubin or any other attorney at H&R was privy
to those details.

As noted above, the opinion of H&R's attorneys

on Nimkoff's handling of the Boymelgreen Action is of little to
no significance given the objective standard by which legal
malpractice is measured.

Finally, the manner in which H&R

maintains its correspondence or other files simply has no bearing
on either Nimkofff's alleged malpractice or the fee arrangement
between RKO and Nimkoff.
Accordingly, the application to continue Mr. Rubin's
deposition is denied, and his deposition is closed.

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B.

Depositions of
Messrs. Ceresney and Strauss

Nimkoff seeks to depose Ian Ceresney, the H&R attorney
who handled the Boymelgreen settlement negotiations, and RKO
seeks to depose Arthur Strauss, the H&R attorney who secured the
financing for the settlement in the Boymelgreen Action.

H&R

seeks to have both of these subpoenas vacated.
It is doubtful that either Mr. Ceresney or Mr. Strauss
will be able to provide information relevant to either the fee
dispute or malpractice claim.

Although Mr. Ceresney was the

attorney who handled the settlement negotiations for H&R in the
Boymelgreen Action, it far from apparent -- and even doubtful -that he has knowledge about any modification of the fee agreement
between RKO and Nimkoff.

In his letter dated January 14, 2013,

Mr. Rubin explained that Mr. Strauss was involved in the
Boymelgreen Action only with respect to the funding of the
settlement agreement through an outside source (Rubin Letter at
4).

Given his role at the periphery of the Boymelgreen Action,

it is similarly unlikely that Mr. Strauss will have relevant
information.
Accordingly, in light of the tangential relationship of
H&R -- and these attorneys in particular -- to the matters in
dispute here and the court's duty to protect non-party witnesses
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from undue burden and harassment, see Fed.R.Civ.P. 45(c), oral
depositions of Mr. Ceresney and Mr. Strauss are not appropriate.1
I shall, however, permit Nimkoff and RKO to serve a total of 20
written interrogatories on these two witnesses.

For the sake of

clarity, the number of interrogatories served shall not exceed
20, regardless of whether the parties serve them on one or both
witnesses.

If Nimkoff and RKO cannot agree to an allocation of

the interrogatories, they are to be divided evenly between
Nimkoff and RKO.

Other than the discovery permitted herein, the

parties shall not serve any other discovery requests on H&R or
its current or former employees.

IV.

Conclusion

For the foregoing reasons, the deposition of Herbert
Rubin is closed and Nimkoff and RKO are limited to 20 written

1

Nimkoff claims that the Federal Rules of Civil Procedure do
not permit a non-party witness to seek an order modifying a
subpoena. This understanding of the Federal Rules is erroneous.
Fed.R.Civ.P. 45 expressly provides that "the issuing court must
quash or modify a subpoena that . . . (iv) subjects a person to
undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iv). Given the tenuous
claims of relevancy with respect to H&R, the subpoenas here
constitute an undue burden and thus are subject to modification.
See Fears v. Wilhelmina Model Agency, Inc., 02 Civ. 4911
(HB)(HBP), 2004 WL 719185 at *1 (S.D.N.Y. Apr. 1, 2004) (Pitman,
M.J.) ("[W]here, as here, discovery is sought from a non-party,
the Court should be particularly sensitive to weighing the
probative value of the information sought against the burden of
production on the non-party.").
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interrogatories to obtain further discovery from H&R attorneys
Ian Ceresney and Arthur Strauss.
Dated:

New York, New York
February 25, 2013
SO ORDERED

HENRY P MAN
United States Magistrate Judge
Copies transmitted to:
Daniel G. Ecker, Esq.
Traub Lieberman Straus
& Shrewsberry LLP
Seven Skyline Drive
Hawthorne, New York 10532
Ronald A. Nimkoff, Esq.
Nimkoff, Rosenfeld & Schechter, LLP
Suite 2424
One Pennsylvania Plaza
New York, New York 10119
Ira
7th
405
New

D. Tokayer, Esq.
Floor
Lexington Avenue
York, New York 10174

Herbert Rubin, Esq.
Herzfeld & Rubin, P.C.
125 Broad Street
New York, New York 10004

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