Knopf et al v. Esposito et al

Filing 284

ORDER granting 279 Letter Motion to Seal. (Signed by Judge Denise L. Cote on January 19, 2021) (vs)

Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 1 of 73
Case 1:17-cv-05833-DLC Document 279 Filed 01/19/21 Page 1 of 1

BERRY LAW PLLC
745 FIFTH AVENUE, 5th Floor
NEW YORK, NEW YORK 10151
Phone [phone]
Fax [phone]
Eric W. Berry (NY)
e-mail

[e-mail]

January 19, 2021
Hon. Denise L. Cote, U.S.D.J. (via ECF)
Sen. Daniel Patrick Moynihan Federal Courthouse
500 Pearl Street, Courtroom 15B
New York, New York 10007
Amended Letter Motion to Seal Motion to Compel Ringel’s Testimony
Your Honor:
The Knopfs request that the Court seal their motion to compel deposition testimony from
Melissa Ringel and permit a redacted version of the motion to be filed publicly. The Knopfs believe
that the requested sealing order and redaction is necessary to “preserve the integrity of a government
investigation and law enforcement interests. . . [.]” In re Applications to Unseal 98 CR 1101(ILG),
568 Fed.Appx. 68, 70 (2d Cir. 2014). A redacted version of the order is attached as Exhibit A.
Respectfully submitted,
/s/ Eric W. Berry
Eric W. Berry
cc: all counsel and pro se parties by ECF; Lorraine Nadel, Esq., by email (w/ Exs.)
Dan Horwitz, Esq. and Michael Ross, Esq., attorneys for Melissa Ringel, by email (w/ Exs.)

The motion to seal is granted.
1.19.2021

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EXHIBIT A - Redacted Version of the Motion to Compel

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

BERRY LAW PLLC
745 FIFTH AVENUE, 5th Floor
NEW YORK, NEW YORK 10151
Phone [phone]
Fax [phone]
Eric W. Berry (NY)
e-mail

[e-mail]

January 19, 2021
Hon. Denise L. Cote, U.S.D.J. (via ECF)
Sen. Daniel Patrick Moynihan Federal Courthouse
500 Pearl Street, Courtroom 15B
New York, New York 10007
Amended Letter Motion to Compel Ringel’s Deposition Testimony
Your Honor:
The Knopfs request an order overruling Melissa Ringel’s objections to deposition questions
(see Ex. 1) based on a claim of Fifth Amendment privilege against self-incrimination.

Ringel’s prior deposition in Knopf v. Phillips, 16 Civ. 6601 (DLC) is a waiver of the
privilege against self-incrimination. Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981) provides that
a “testimonial” waiver occurs “if (1) the witness’s prior statements have created a significant
likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth,
and (2) the witness had reason to know that his prior statements would be interpreted as a waiver
of the . . . privilege against self-incrimination.” Klein defines “testimonial” as “voluntarily made
under oath in the context of the same judicial proceeding.” Id. at 288.
The “meet and confer” session centered on whether this case and Phillips are “the same
judicial proceeding.” They are. The allegations in this case stem from evidence obtained in Phillips;
occasionally the Court has entered a single order in both cases; and at one point it ordered them to
be tried together (ECF 224) before deferring the question of a consolidated trial to later (ECF 228).
The Court has limited depositions of witnesses examined in Phillips (including Ringel) to two hours
(ECF 224), seeming to view them as continuations of those taken in Phillips. In such circumstances,
the Courts value substance over form and hold that the existence of a different case number or
caption does not defeat a showing that the prior testimony was within the same proceeding. In re
Mudd, 95 B.R. 426 (Bankr., N.D. Tex. 1989) held that testimony at a §341 examination waived the
privilege against self-incrimination in a subsequent adversary proceeding since:
While it is true that the objection to discharge complaint is a separate
adversary proceeding, . . . the subject matter of the adversary – the loss of some
$9,000,000.00 from the Liquid Asset Fund – is so interwoven with the main
Bankruptcy proceeding that the two proceedings are part and parcel of each other.
This fact is illustrated by the scope of the 2004 examination in question, in which the
Trustee seeks information concerning the missing funds. . . [.]
Id. at 430-431. Accord: In re Lederman, 140 B.R. 49, 54 (Bankr.E.D.N.Y.1992) (debtor’s admission

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

Hon. Denise L. Cote, U.S.D.J.
January 19, 2021
Page 2
made in disclosure schedules evidenced a waiver of the privilege against self-incrimination that was
enforceable in subsequent dischargeability adversary proceeding); In re Gi Yeong Nam, 245 B.R.
216, 233 (Bankr., E.D. Pa. 2000) (testimony at §341 meeting was a waiver since the “Trustee’s
[adversary proceeding] to recover a fraudulent conveyance is causally related to the very purpose
of the §341 meeting”).
A waiver of Fifth Amendment privilege “occurs regardless of whether the person’s failure
to claim the privilege was . . . knowing and intelligent,” Minnesota v. Murphy, 465 U.S. 420, 428
(1984),

Ringel’s prior testimony was incriminating. Feldman testified that he asked her to clarify
whether proceeds could be released to Sanford notwithstanding prior First Department orders. (Ex.
3, at 59:11-60:6.)
The questions asked at Ringel’s recent deposition
sought to flesh out details regarding her disclosures in Phillips, and “[d]isclosure of a fact waives
the privilege as to details.” Rogers v. United States, 340 U.S. 367, 373 (1951).
Allowing Ringel to invoke Fifth Amendment privilege now would impermissibly “distort”
the record under Klein. Her prior testimony was that she did not know that Esposito was paid by
Sanford, (Ex. 2, at 37:20-23); that when she received the call that she did not know there was a
pending appeal in Knopf v. Sanford (id., at 44:5-10); and that, on the evening of January 12, 2016,
Esposito was surprised to hear about the call (id., at 106:10-15). Subsequently, the Knopfs learned
that: Akerman and Feldman called her on her direct line (ECF 129-2, p. 21 of 21); Esposito was
paid $50,000 out of the sale proceeds (ECF 167-2, 8 of 11) and used the money immediately to pay
a credit card bill (ECF 167-2, pp. 5, 10 and 11); according to documents Judge Glenn reviewed in
camera, Sanford sent documents to Esposito’s home shortly before the call to obtain Ringel’s view
concerning whether Sanford should stipulate to supplement the record in the pending appeal (Ex.
4, pp. 11-13); and, three hours following the January 12 call, Esposito emailed Sanford say “the title
company should be satisfied at this point (Ex. 5).
Permitting Ringel to invoke the Fifth Amendment at this stage is prejudicial to the Knopfs,
since it permits her to maintain her prior position that she, Esposito and Sanford did not orchestrate

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

Hon. Denise L. Cote, U.S.D.J.
January 19, 2021
Page 3
the call without being challenged by the new evidence.
Respectfully submitted,
/s/ Eric W. Berry
Eric W. Berry
cc: all counsel and pro se parties by ECF; Lorraine Nadel, Esq., by email (w/ Exs.)
Dan Horwitz, Esq. and Michael Ross, Esq., attorneys for Melissa Ringel, by email (w/Exs.)

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 65of 73
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EXHIBIT 1

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------x
NORMA KNOPF and MICHAEL KNOPF,
Plaintiffs,
-againstFRANK M. ESPOSITO,
DORSEY & WHITNEY, LLP,
NATHANIEL H. AKERMAN,
EDWARD S. FELDMAN and
MICHAEL HAYDEN SANFORD,
Defendants.
Case No:

17 Civ. 5833 (DLC) (SN)

Hon. Denise L. Cote, U.S.D.J.
Hon. Sarah Netburn, U.S.M.J.
--------------------------------------------x
Videoconference Deposition
December 14, 2020
10:10 a.m.

DEPOSITION OF MELISSA RINGEL,
Non-Party Witness herein, pursuant to
Local Rule 33.3(c), held at the above-noted
time and place before Debra J. Gumpel, a
Notary Public of the State of New York.

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 87of 73
Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

2

A P P E A R A N C E S:

BERRY LAW PLLC
Attorneys for Plaintiffs
Norma Knopf and Michael Knopf
745 Fifth Avenue, 5th Floor
New York, New York 10151
berrylawpllc@gmailcom
[phone]
BY:

ERIC BERRY, ESQ.
(via videoconference)

FRANK M. ESPOSITO, ESQ.
Defendant Pro Se
515 Madison Avenue, 15th Floor
New York, New York 10022
[e-mail]
[phone]
(via videoconference)

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page of 72

3

1
2

APPEARANCES CONTINUED:

3
4

Defendant Nathaniel Akerman, Esq

5

c/o

6

Attorneys for Defendants

7

Dorsey & Whitney, LLP and

8

Nathaniel H. Akerman

9

Patterson Belknap, LLP

1133 Sixth Avenue,

10

New York, New York 10036

11

[phone]

12

(via videoconference)

13
14

PATTERSON BELKNAP, LLP (Did Not Appear)

15

Attorneys for Defendants

16

Dorsey & Whitney, LLP and

17

Nathaniel H. Akerman

18

1133 Sixth Avenue

19

New York, New York 10036

20

BY:

JONATHAN H. HATCH, ESQ.

21

[e-mail]

22

[phone]

23
24
25
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 10 of 73
Case 1:17-cv-05833-DLC Document 284
Filed 01/19/21 Page 9 of 72

4

APPEARANCES CONTINUED:

EDWARD FELDMAN, ESQ.
Respondent Pro Se
99 Madison Avenue, Suite 630
New York, New York 10016
[e-mail]
[phone]
(via videoconference)

NADEL & CIARLO, P.C.
Attorneys for Michael Phillips
527 Madison Avenue, 7th Floor
New York, New York
BY:

10022

LORRAINE NADEL, ESQ.
[e-mail]
[phone]
(via videoconference)

BY:

ADAM HANAN, ESQ.
[e-mail]
(via videoconference)

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 11 of 73
Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 10 of 72

5

1
2

APPEARANCES CONTINUED:

3
4
5

McLAUGHLIN & STERN, LLP

6

Attorneys for Non-Party,

7

Melissa Ringel

8

260 Madison Avenue

9

New York, New York 10016

10

BY: DANIEL J. HOROWITZ, ESQ.

11

[e-mail]

12

[phone]

13
14
15
16
17
18
19
20
21
22
23
24
25
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 11 of 72

6

1

MELISSA RINGEL

2

M E L I S S A

R I N G E L, the witness

3

herein, after having been first duly sworn by

4

a Notary Public of the State of New York, was

5

examined and testified as follows:

6

EXAMINATION BY

7

MR. BERRY:

8

Q

9

please.

10

A

Melissa Ringel.

11

Q

What is your current address?

12

A

20 Glendale Drive, Oyster Bay,

13

State your name for the record,

New York 11771.

14

Q

Ms. Ringel, how are you today?

15

A

I am okay.

16

Q

Ms. Ringel, I'm going to screen

17

share a report issued by the Office of

18

Court Administration in March of 2017.

19

part of Exhibit 104, the first part of

20

Exhibit 104 being a letter from OCA counsel of

21

the First Department.

22

language, "Confidential Report, Do Not

23

Distribute," at the top?

24
25

It's

Can you see the

MR. HOROWITZ:

We can see

it.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 12 of 72

7

1

MELISSA RINGEL

2

Q

Can the witness see it?

3

A

Yes.

4

Q

Can you see the language that's

5

been highlighted here, that Ms. Ringel said

6

the two people on the telephone identified

7

themselves as Michael Sanford's real estate

8

lawyers?

9

Nick Akerman from the Law Firm of Dorsey and

She said one of the callers was

10

Whitney, and the other caller was Ed Feldman.

11

Do you see that language?

12

A

Yes.

13

Q

Thank you.

Did Mr. Feldman and

14

Mr. Akerman identify themselves at the outset

15

of the call you received from them on

16

January 12, 2016?

17

A

On the advice of counsel, and

18

pursuant to my rights under the Fifth

19

Amendment of the United States Constitution,

20

I decline to answer the question.

21

MR. HOROWITZ:

Counsel, can

22

I request that if the witness

23

asserts her rights under the

24

Fifth Amendment to other questions

25

in the deposition, that it will be
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 13 of 72

8

1

MELISSA RINGEL

2

understood if she says,

3

"Fifth Amendment," that she is

4

asserting those rights under the

5

Fifth Amendment," and declining to

6

answer the question?

7

that understanding?

8

MR. BERRY:

9

Can we have

Yes.

As we

agreed off the record, if she says

10

"Fifth Amendment," all the

11

participating parties will

12

understand that to mean that she

13

is invoking her rights under the

14

Fifth Amendment of the United

15

States Constitution.

16
17

MR. HOROWITZ:
Q

Thank you.

Ms. Ringel, do you remember the

18

precise words that Mr. Akerman and Mr. Feldman

19

used when they introduced themselves to you in

20

the call?

21

A

Fifth Amendment.

22

Q

Do you remember whether

23

Mr. Akerman or Mr. Feldman offered any

24

explanation at the outset of the call as to

25

who Mr. Sanford was?
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 14 of 72

9

1

MELISSA RINGEL

2

A

Fifth Amendment.

3

Q

Did you find that odd?

4

A

Fifth Amendment.

5

Q

I'm sorry.

I withdraw the

6

question.

Did you find it odd that you were

7

receiving a call from Mr. Akerman and

8

Mr. Feldman?

9

A

Fifth Amendment.

10

Q

Did you have any familiarity with

11

the orders that had been issued by the

12

First Department of the latter part of 2015 in

13

the case called Knopf versus Sanford?

14

A

Fifth Amendment.

15

MR. ESPOSITO:

16

Asked and answered.

17

MR. BERRY:

Objection.

Are you

18

directing the witness not to

19

answer?

20

MR. ESPOSITO:

21

MR. BERRY:

22
23

No.

Are you

asserting any type of privilege?
MR. ESPOSITO:

You would

24

have to ask her.

I'm noting my

25

objection for the record.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 15 of 72

10

1

MELISSA RINGEL

2

MR. BERRY:

I'm sorry.

I

3

minimized the screen.

4

that was Mr. Horowitz's objection.

5

MR. HOROWITZ:

I thought

Mr. Berry, I

6

want to make sure it's complete.

7

Did you get the witness' answer to

8

the question?

9

MR. BERRY:

I do not have

10

the witness' answer.

11

objection.

12

it was yours, and now I know it

13

was Mr. Esposito's.

14

hear any kind of answer to the

15

question.

16

again.

17

Q

I heard an

I incorrectly assumed

I did not

So let me ask it

At the time you received the call

18

from Mr. Akerman and Mr. Feldman, did you have

19

any familiarity with orders that had been

20

issued by the First Department in the latter

21

part of 2015 in the case called

22

Knopf v Sanford?

23
24
25

MR. ESPOSITO:
A

Objection.

Fifth Amendment.
MR. BERRY:

Mr. Horowitz, do

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 16 of 72

11

1

MELISSA RINGEL

2

you believe that it's conceivable

3

that I might be able to ask a

4

question today for which there

5

would not be a Fifth Amendment

6

privilege asserted?

7

MR. HOROWITZ:

I don't know,

8

and I don't mean to make light,

9

but I don't know what you're going

10

to ask.

11

answer,

23
24
25

It's hard for me to

MR. BERRY:
Q

Thank you.

Ms. Ringel, I'm screen sharing

Plaintiffs' 102, which is a copy of the
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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12

1

MELISSA RINGEL

2

deposition that you gave in the

3

Knopf v Phillips case on August 15, 2017.

4

Can you see the first page of that deposition

5

transcript?

6

A

Yes, I do.

7

Q

I'm going to show you a question

8

that begins at the bottom of page 43 at line

9

24, where you're asked, "When Mr. Akerman and

10

Mr. Feldman called, did you check to see if

11

there had been any assignment of the

12

Knopf v Sanford appeal from mediation?"

13

your answer is, "I did not."

14

beginning on line 5 on page 44, you're asked,

15

Question:

16

pending appeal?"

17

Question:

18

was a pending appeal?"

19

Do you see that testimony?

And

Then below that,

"Did you know whether there was a
Answer:

"I did not."

"Did you check to see whether there
Answer:

"I did not."

20

A

Yes.

21

Q

Had Mr. Akerman and Mr. Feldman,

22

when they called you on January 12, 2016,

23

stated that there was an appeal scheduled to

24

be argued in a few weeks which would decide

25

whether Mr. Sanford's assets and those of his
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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13

1

MELISSA RINGEL

2

companies should be frozen or instead should

3

be released to him, might you've handled the

4

call differently?

5

A

Fifth Amendment.

6

MR. HOROWITZ:

7

MR. BERRY:

Objection.

Is there an

8

assertion of Fifth Amendment

9

privilege?

10
11
12

MR. HOROWITZ:
Q

Yes.

Do you believe it's likely you

would have handled the call differently?

13

MR. HOROWITZ:

Objection.

14

A

Fifth Amendment.

15

Q

How do you think you would have

16

handled it?

17
18
19

MR. HOROWITZ:
A

Objection.

Fifth Amendment.
MR. BERRY:

Can I find out

20

from Mr. Esposito whether there is

21

any claim of spousal privilege

22

being asserted now?

23

MR. ESPOSITO:

I'm objecting

24

to the form of the question.

25

particular, I'm objecting to the
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

In

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14

1

MELISSA RINGEL

2

fact that these questions have

3

been asked and answered, as is

4

evident by the transcript you're

5

currently sharing with the

6

deponent and the counsel in this

7

case.

8
9

MR. BERRY:
Q

Thank you.

Ms. Ringel, I'm returning to the

10

OCA report, Plaintiffs' 104.

11

in this interview it's recounted that

12

Mr. Esposito told you that the Knopfs had

13

obtained summary judgment in the

14

Knopf v Sanford case.

15

language.

16
17
18

Do you see where

I will highlight that

MR. ESPOSITO:
Q

Objection.

Do you see that portion of the

OCA report?

19

MR. HOROWITZ:

Mr. Berry,

20

there is nothing that's been

21

highlighted.

22
23

Q

Can you see it now?
MR. HOROWITZ:

There is a

24

highlighting that begins in the

25

third line of the -- I don't know
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 20 of 72

15

1

MELISSA RINGEL

2

what page this is -- the line that

3

begins, "Mr. Sanford to return the

4

funds."

5

"funds," and it ends with the

6

phrase, "It was clear to her."

7
8
9

Highlight begins at

MR. BERRY:
Q

Right.

Do you see within that

highlighting, the sentence that states,

10

"However, her husband told her that summary

11

judgment had been granted to the plaintiffs

12

and that there were two or three motions which

13

were limited."

14

Do you see that sentence?

15
16

MR. ESPOSITO:
Q

Objection.

The answer -- do you see that

sentence?

17

A

Yes.

18

Q

Did Mr. Esposito tell you in the

19

very first part of January of 2016 that the

20

Knopfs had obtained summary judgment?

21

MR. ESPOSITO:

Objection.

22

A

Fifth Amendment.

23

Q

Ms. Ringel, I'm showing you what's

24

been marked as Plaintiffs' 106, which is a

25

deposition transcript of an examination given
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 21 of 72

16

1

MELISSA RINGEL

2

by Evan Glassman on May 30, 2018.

3

the exhibit?

4

A

Yes.

5

MR. HOROWITZ:

6
7
8

Can you see

Mr. Berry,

what we see is the cover page.
Q

Can you see the exhibit sticker at

the bottom?

9

A

Yes.

10

Q

The highlighted language beginning

11

at page 21, line 5, of Mr. Glassman's

12

deposition.

13

to page 22, line 13.

14

And when you need me to page forward, let me

15

know and I will page forward it.

16

Can you read from page 21, line 5
Read it to yourself.

MR. ESPOSITO:

17

A

You can page forward.

18

Q

Thank you.

Objection.

19

And again, just to

line 13.

20

A

I'm done.

21

Q

Do you recall speaking to

22

Mr. Glassman about a case that Mr. Esposito

23

had and needed backup for?

24
25

MR. ESPOSITO:
A

Objection.

Fifth Amendment.
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17

1

MELISSA RINGEL

2

MR. BERRY:

I think to

3

expedite this, and maybe

4

facilitate all of us going on to

5

more productive endeavors, can we

6

take a five-minute break, and Mr.

7

Horowitz, would you call me on my

8

cell phone, the same number you

9

called me today, and during this

10

five minutes, maybe you and I can

11

have a conversation about how to

12

streamline the process going

13

forward so we can all get off this

14

deposition, in which it doesn't

15

appear that a lot of testimony is

16

going to be provided.

17

MR. HOROWITZ:

18

MS. NADEL:

19

Ten minutes is

more realistic.

20
21

Okay.

MR. BERRY:

Back in ten

minutes.

22

(Whereupon, a brief recess

23

was taken from 10:26 a.m. to 10:39

24

a.m.)

25

MR. BERRY:

Mr. Horowitz and

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18

1

MELISSA RINGEL

2

I had a discussion off the record,

3

and correct me if I am misstating

4

what we agreed to, I am going to

5

ask no more than three questions,

6

and then we're going to put on the

7

record a stipulation that we have

8

agreed to, and then the other

9

parties represented at this

10

deposition will have an

11

opportunity either to cross or to

12

make any comments or perhaps join

13

in the stipulation.

14

that at least the Knopfs'

15

questioning will be over with in a

16

few minutes.

17

more questions.

18

Q

So we assume

I just have a couple

Ms. Ringel, can you see the first

19

page of a deposition transcript of the

20

examination of Nathaniel Akerman that occurred

21

on September 6, 2019?

22

A

Yes.

23

Q

I'm directing your attention to

24

page 100, lines 6 through 12, in which I asked

25

Mr. Akerman.

Question:

"Do you believe it

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19

1

MELISSA RINGEL

2

would have been improper to proceed with the

3

call had you been told by Ms. Ringel that her

4

husband, like you, was a lawyer from Mr.

5

Sanford?"

6

have thought that there would be a conflict

7

and I wouldn't have continued."

8

with Mr. Akerman that there was a conflict of

9

interest that should have terminated the call?

And the answer is, "Yes, I would

10

MR. ESPOSITO:

Do you agree

Objection.

11

A

Fifth Amendment.

12

Q

Ms. Ringel, I'm showing you again

13

what's been marked as Plaintiffs' 102, which

14

is the deposition you gave on August 15, 2017.

15

In particular, I am directing your attention

16

to page 105, at the bottom, and at which point

17

you're asked the question:

18

receiving the litigation hold notice, was

19

there anything else that was said between you

20

and Mr. Esposito about your conversations with

21

Mr. Akerman and Mr. Feldman beside what you

22

described already?"

23

the answer is, "No, not that I recall."

24

then the following questions were asked and

25

answers given.

"Prior to

Going on the next page,

Question:

And

"On the evening of

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20

1

MELISSA RINGEL

2

January 12, 2016, you told him that you gave

3

them the same information that you had given

4

him."

5

Question:

"That he and you discussed."

6

Question:

"Did he say anything in response to

7

that?"

Answer:

8

said."

Question:

9

response?"

Answer:

"That he had and I discussed."

"I don't recall what he
"Did he say anything in

Answer:

"In response to my

10

telling him that I received a call?"

11

Question:

12

surprised, but I don't recall what he said."

13

Is that still your recollection that on the

14

evening of January 12th, when you spoke about

15

the call you received from Mr. Akerman and

16

Mr. Feldman with Frank Esposito, that he

17

seemed surprised that you had received that

18

call?

"Yes."

19

Answer:

"He seemed

MR. ESPOSITO:

Objection.

20

A

Fifth Amendment.

21

Q

Mr. Ringel, I'm screen sharing

22

what's been previously marked as Plaintiffs'

23

Exhibit 125.

Can you see the exhibit?

24

A

Yes.

25

Q

Do you see at the top,
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21

1

MELISSA RINGEL

2

Mr. Esposito is e-mailing Mr. Sanford on

3

January 12, 2016, at 1:59 p.m., which I think

4

was about three hours after you received a

5

call from Mr. Akerman and Mr. Feldman, at

6

which point, and in this e-mail, Mr. Esposito

7

states, "The title company should be satisfied

8

at this point."

9

with Mr. Esposito about the call you received

Did you have a conversation

10

from Akerman and Feldman prior to 2:00 p.m. on

11

January 12th?

12
13
14

MR. ESPOSITO:
A

Objection.

Fifth Amendment.
MR. BERRY:

We're going to

15

put the stipulation on the record.

16

Mr. Horowitz, tell me if I get any

17

part of it wrong.

18

Mr. Horowitz and I have

19

entered into a stipulation, which

20

is as follows:

21

Knopfs would have asked any

22

further questions today about the

23

allegations in the Second Amended

24

Complaint in the Knopf v Esposito

25

case about the information

To the extent the

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22

1

MELISSA RINGEL

2

included in the OCA report that

3

was filed with Judge Cote in March

4

or April of 2016, and/or the

5

deposition exhibits that have been

6

pre-marked that's been circulated

7

today, it's agreed that a Fifth

8

Amendment privilege would be

9

asserted by Ms. Ringel.

10

We have further agreed that

11

to the extent that the Knopfs want

12

to make a motion to compel, we

13

will do that on paper after

14

research and after good faith

15

communications with Mr. Horowitz.

16

And that would be the conclusion

17

of the Knopfs' examination for

18

today, subject to any rulings by

19

the Court.

20

If any of the defendants

21

want to begin cross examination

22

now, they're free to do so.

23

any defendants want to join in the

24

stipulation, they're free to do

25

so.

If

And if any defendants want to

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23

1

MELISSA RINGEL

2

make any other comments, they're

3

free to do so.

4
5

Mr. Horowitz, do you agree
with that?

6

MR. HOROWITZ:

Yes, we agree

7

with the stipulation.

The only

8

thing I want to make sure -- I

9

think you did fine -- I just want

10

to make it clear that to the

11

extent that you're going to make

12

any kind of motion, and I'm not

13

saying you are, but that motion

14

will be consistent with Judge

15

Cote's local rules, and we will

16

have an opportunity to meet and

17

concur before any such motion is

18

made.

19
20
21

MR. BERRY:

That's my

intention, of course.
MR. HOROWITZ:

22

the stipulation.

23

MR. BERRY:

We agree to

Do any of the

24

defendants want to cross-examine

25

Ms. Ringel?

Do any of the

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24

1

MELISSA RINGEL

2

defendants want to join in the

3

stipulation?

4

MR. FELDMAN:

5

I would like

to ask a question or two.

6

MR. BERRY:

7

That's fine by

me.

8

MR. FELDMAN:

9

If anybody

else would like to ask a question

10

in the interim --

11

MS. NADEL:

This is

12

Lorraine Nadel.

13

five or six questions.

14

want a five-minute break before I

15

begin, so Ed can go first.

16

I just

EXAMINATION BY

17

I Just have about

MR. FELDMAN:

18
19

Q

Ms. Ringel, can you confirm that

you have never met me?

20

A

Fifth Amendment.

21

Q

If that's your position with

22

regard to that, then I'll have no more

23

questions.

24
25

MS. NADEL:

Can I just have

five minutes?
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25

1

MELISSA RINGEL

2

(Whereupon, a brief recess

3

was taken from 10:54 a.m. to 10:58

4

a.m.)

5

EXAMINATION BY

6

MS. NADEL:

7

Q

I just have a couple of questions

8

for you, and they're in connection with three

9

people related to some of the work in this

10

matter.

11

A

Fifth Amendment.

12

Q

Have you ever spoken to

13

Do you know Michael Phillips?

Michael Phillips?

14

A

Fifth Amendment.

15

Q

Do you know Lori Braverman?

16

A

Fifth Amendment.

17

Q

Have you ever spoken to

18

Lori Braverman?

19

A

Fifth Amendment.

20

Q

Matt Bronfman, do you know

21

Matt Bronfman?

22

A

Fifth Amendment.

23

Q

Have you ever spoken to

24
25

Matt Bronfman?
A

Fifth Amendment.
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26

1

MELISSA RINGEL

2
3
4
5

MS. NADEL:

Thank you so

much.
MR. FELDMAN:

We have no

questions.

6

MR. ESPOSITO:

7

MR. BERRY:

No questions.

Does anybody

8

else have any questions?

Does

9

anybody else have any comments?

10

Does anyone have an objection if

11

we table the deposition?

12

MS. NADEL:

No objection.

13

MR. BERRY:

Mr. Feldman, do

14

you have an objection if we table

15

the deposition at this point?

16

MR. FELDMAN:

No.

I just

17

would like to see the final stip

18

when it's provided.

19
20

MR. BERRY:

I'm sorry, Mr.

Feldman, I didn't hear you.

21

MR. FELDMAN:

I said no, but

22

I would like to have the

23

stipulation sent to myself and

24

obviously everyone else when it's

25

provided.
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27

1

MELISSA RINGEL

2

MR. BERRY:

Right.

I will

3

circulate the transcript to

4

everybody.

5

Is that it?

Is there any

6

objection if we end the meeting

7

now?

8

MR. FELDMAN:

9

MR. BERRY:

No.
Ms. Gumpel, will

10

you expedite production of the

11

transcript?

12
13

THE REPORTER:
course.

14
15
16
17
18
19
20

Yes, of

MR. BERRY:

I will e-mail

Cindy.
THE REPORTER:

Is anybody

else ordering the transcript?
MR. FELDMAN:

You said

you'll be circulating it.
(Continued on next page.)

21
22
23
24
25
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EXHIBIT 2

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 35 of 73
Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 34 of 72

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - x
NORMA KNOPF and MICHAEL KNOPF,
Case No.:
1:16-cv-06601
(DLC)
MICHAEL PHILLIPS and PURSUIT HOLDINGS,
LLC, and MICHAEL H. SANFORD,
Plaintiffs,

Defendants.
- - - - - - - - - - - - - - - - - - - - - x
745 Fifth Avenue,
5th Floor
New York, New York
August 15, 2017
2:15 p.m.

DEPOSITION OF MELISSA RINGEL, held
at the above-noted time and place, before
Debra Gumpel, a Notary Public within and for
the State of New York.

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 36 of 73
Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 35 of 72

2

A P P E A R A N C E S:

ERIC W. BERRY LAW OFFICE
Attorneys for Plaintiffs
745 Fifth Avenue, 5th Floor
New York, New York 10151
BY:

ERIC W. BERRY, ESQ.

NADEL & CIARLO, ESQS.
Attorneys for Defendant,
MICHAEL PHILLIPS
3 East 54th Street, 16th Floor
New York, New York 10022
BY:
LORRAINE NADEL, ESQ.
E-Mail: [e-mail]
BY:
ADAM HANAN, ESQ.
E-Mail: [e-mail]

MICHAEL S. ROSS, ESQ.
Attorney for Melissa Ringel
60 East 42nd Street, 47th Floor
New York, New York 10165
BY:
MICHAEL S. ROSS, ESQ.
E-Mail:
[e-mail].
***

***

***

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 36 of 72

16

1
2

MELISSA RINGEL
Binghamton?

3
4

A

Q

When did you graduate from

1994.

5
6

I graduated from Binghamton in

Cardozo?

7

A

1997.

8

Q

What was your first job out of law

9

school?

10

A

11

I worked for a firm called

Bronfman, Gilbert and Ross.

12

Q

Was that 767 Third Avenue then?

13

A

Yes, it was.

14

Q

How long did you work at Bronfman,

15

Gilbert and Ross?

16

A

Approximately six months.

17

Q

What did you do after leaving

18

Bronfman, Gilbert and Ross?

19
20

A

I went to work for a firm called

LaRossa, Mitchell and Ross.

21

Q

That was James M. LaRossa's

23

A

Yes.

24

Q

How long did you work at Mitchell

22

25

firm?

LaRossa's firm?
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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 37 of 72

37

1

MELISSA RINGEL

2

Q

What were they?

3

A

I believe it was a $50,000

4

retainer.

5
6

Q

Do you recall when you first

learned there was a $50,000 retainer?

7

A

I don't believe I learned that

8

until after I was served with a subpoena to

9

testify in this case.

10
11

Q

From whom did you learn there was

a $50,000 retainer?

12

A

From my husband.

13

Q

Did he tell you whether it had

14

been paid?

15

A

He did not.

16

Q

Do you have any information about

17

whether any portion of that retainer has been

18

paid?

19

A

I do not.

20

Q

Do you know whether your husband

21

has ever received any money from Mr. Sanford

22

or any of Mr. Sanford's companies?

23

A

I don't know.

24

Q

Have you had any discussion with

25

Mr. Esposito about it?
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44

1

MELISSA RINGEL

2

any assignment of Knopf V. Sanford appeal for

3

mediation?

4

A

I did not.

5

Q

Did you know whether there was a

6

pending appeal?

7

A

I did not.

8

Q

Did you check to see whether there

9

was a pending appeal?

10

A

I did not.

11

Q

Can you tell me, the best of your

12

ability, what was said during the

13

conversation?

14

A

I recall that they asked -- they

15

identified themselves.

They told me they had

16

some questions about an order in the case.

17

didn't know what their questions were, and my

18

initial reaction was to tell them that they

19

should call the clerks office.

20

asked me who they should specifically speak

21

with, and I said I didn't know.

22

they asked me if I was familiar with the order

23

I was speaking about. I said yes, I am. I

24

don't recall what they asked me next, but I do

25

recall that it appears to be a procedural

I

They then

At that point

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106

1

MELISSA RINGEL

2

A

No, not that I recall.

3

Q

On the evening of January 12,

4

2016, you told him that you gave them the same

5

information that you had given him, that --

6

A

That he and I discussed?

7

Q

That he and you discussed.

8

Did he

say anything in response to that?

9

A

I don't recall what he said.

10

Q

Did he say anything in response?

11

A

In response to my telling him that

12

I received a call?

13

Q

Yes.

14

A

He seemed surprised, but I don't

15
16

recall what he said.
Q

Was that the last the two of you

17

ever spoke about it until receiving the

18

Litigation Hold Notice?

19
20

A

Yes.
(Continued on next page.)

21
22
23
24
25
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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 40 of 72

EXHIBIT 3

Case 1:17-cv-05833-DLC Document 279-1 Filed 01/19/21 Page 42 of 73
Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 41 of 72

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - x
NORMA KNOPF and MICHAEL KNOPF,
Case No.:
1:16-cv-06601
(DLC)
MICHAEL PHILLIPS and PURSUIT HOLDINGS,
LLC, and MICHAEL H. SANFORD,
Plaintiffs,

Defendants.
- - - - - - - - - - - - - - - - - - - - - x
745 Fifth Avenue,
5th Floor
New York, New York
June 29, 2017
1:05 p.m.

30(b)6 DEPOSITION OF EDWARD S.
FELDMAN, ESQ., pursuant to Subpoena, held at
the above-noted time and place, before Debra
Gumpel, a Notary Public within and for the
State of New York.

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

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Case 1:17-cv-05833-DLC Document 284 Filed 01/19/21 Page 42 of 72

59

1

EDWARD FELDMAN

2

A

Michael Hayden Sanford, et. al.

3

Q

So it appears from this December

4

29th Order that some Interim Order dated

5

October 22, 2015 had been denied on December

6

29th --

7

MR. HANAN:

Objection.

8

MR. BERRY:

If you could let

9

me finish the question.

10
11

Withdrawn?
Q

Do you see that, according to the

12

December 29, 2015 Order that's been marked as

13

Exhibit 11, the Motion to Vacate an October

14

22, 2015 Interim Order had been denied?

15
16
17

MR. HANAN:
A

Objection.

I see what the Order says.

However, you refreshed my recollection.

18

Q

That's my job.

19

A

And I recall now specifically that

20

was the certain I had, and one of the reasons

21

for the conference call with Melissa Ringel,

22

and she clarified specifically, and again,

23

with the attitude is, you should know this as

24

a matter of law, that the reason the second

25

motion was denied was because it was mute,
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60

1

EDWARD FELDMAN

2

that the previous order had resulted in the

3

removal of the restraints, so the second

4

motion was denied as not being necessary and

5

mute. That was the clarification we

6

required.

7

Q

Is your recollection refreshed now

8

what she said her position within the Court

9

was?

10

A

No.

I just remember, again,

11

repeating what I said, we got transferred to

12

her as the person who had this file, knew

13

about this file, whatever, and she was fully

14

aware of the issues, and we talked to her, but

15

she was very specific.

16

because it was mute, because there was nothing

17

to -- no restraints to vacate, because they

18

had already been vacated by a previous Order,

19

whatever that Order was. I guess the previous

20

Order was the Order of November 12th, which

21

was attached to my affirmation, which you

22

marked as Exhibit 32.

23
24
25

Q

That motion was denied

Did you challenge her

interpretation at all?
MR. HANAN:

Objection.

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re:
Case No. 18-12738 (MG)
Chapter 7

PURSUIT HOLDINGS (NY), LLC,
Debtor.

ORDER OVERRULING IN PART AND REQUIRING IN CAMERA REVIEW IN PART
OF SANFORD AND ESPOSITO OBJECTIONS TO PRODUCTION OF DOCUMENTS
BASED ON ATTORNEY-CLIENT PRIVILEGE, COMMON INTEREST PRIVILEGE
AND ATTORNEY WORK PRODUCT PROTECTION

This Order resolves many of the issues concerning objections to production of documents
by Michael Hayden Sanford (“Sanford”) and attorney Frank Esposito (“Esposito”) in response to
document production requests by counsel to Deborah J. Piazza, Esq., the Chapter 7 Trustee in
this case (the “Trustee”). Sanford is the principal of the debtor, Pursuit Holdings (NY), LLC
(“Pursuit”). Sanford also has several other businesses, including MH Sanford & Co., LLC
(“MHS&Co.”). The documents at issue consist of email communications between Sanford and
Esposito. Sanford does not argue that these communications are subject to the attorney-client
privilege of Pursuit. That argument would clearly fail, as it is undisputed the Trustee now
controls the attorney-client privilege and work product protection of Pursuit and has waived the
privilege or protection with respect to any documents or information that were subject to
Pursuit’s attorney-client privilege or work product protection.
The issue here is whether the requested documents and information are protected by
Sanford’s or MHS&Co.’s (and not Pursuit’s) attorney-client privilege, common interest
privilege, and/or work product protection, to the extent it has not been waived, in which case the
documents and information are protected from discovery. The resolution of this issue depends

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on an examination of the email communications and the context surrounding them. Sanford
appears in this matter pro se, but his arguments and filings reflect considerable sophistication.
All of the documents and information at issue relate to a long-running dispute between
Sanford or Pursuit, on the one hand, and Michael and Norma Knopf and Delphi Capital
Management, secured creditors of the Debtor (collectively, the “Knopfs”), on the other hand.
The disputes between Sanford, Pursuit, and the Knopfs have been the subjects of years of state
and federal court litigation in the trial and appellate courts in New York. The Knopfs hold large
unsatisfied judgments against Pursuit and Sanford. I will only address the prior litigation to the
extent necessary to resolve the privilege issues here.
As explained below, most of the privilege objections asserted by Sanford and Esposito
are easily resolved by the Court. Sanford provided the Court for in camera review with copies of
documents as to which he claims privilege or protection. In reaching its rulings embodied in this
Order, those documents have been reviewed by the Court. As to a few of the documents to
which Esposito has objected, some of the objections cannot be resolved without the Court’s in
camera review of those documents. This Order requires that copies of those documents be sent
to the Court in hard copy for in camera review. The Court will review and then rule on the
remaining objections.
This matter arises from Sanford’s Declaration Attaching Privilege Log and Related
Material (ECF Doc. # 128); Emails A–E submitted by email for in camera review, the Trustee’s
and the Knopfs’ Joint Reply in Support of the Trustee’s Request for an Order that Sanford and
Frank Esposito (“Esposito”) Produce to the Trustee Items 1–7 on Esposito’s Privilege Log and
Any Documents Submitted In Camera That Are Relevant to the Trustee’s Potential Claims
Against Esposito and Not Privileged (the “Joint Reply,” ECF Doc. # 132); and Sanford’s

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Declaration Requesting Two Days to Respond to the Trustee’s and Knopfs’ Joint Reply (ECF
Doc. # 134).
For the reasons explained below, the Court ORDERS that Esposito produce items 1–3,
and 7 identified on his privilege log for in camera review. As for Items 4, 5, (where Items 4 and
5 appear to be Email E on Sanford’s privilege log) and Item 6 on Esposito’s privilege log (where
Item 6 appears to be Email D on Sanford’s privilege log), the Court ORDERS that Sanford and
Esposito each produce these emails. Finally, the Court ORDERS that Sanford produce Emails
A–C; those Emails are relevant and are not privileged.

I. Brief Background
On October 22, 2020, the Trustee filed the Trustee’s Application for Entry of an Order
Pursuant to Fed. Rules of Bankr. P. 2004 and 9016 Authorizing a Document Subpoena to be
Served on Michael H. Sanford. (“Application,” ECF Doc. # 107-1.) The Application arises out
of the Chapter 7 estate’s potential claims for avoidance and recovery of allegedly fraudulent
transfers made by the Debtor to Esposito and his law firm, Esposito Partners, LLC. (Id. ¶¶ 7–
10.) Specifically, the Trustee believes that Sanford, in his capacity as the owner and
representative of Pursuit, paid Esposito in connection with Pursuit’s efforts to sell the 67th Street
property to the buyer, Michael Phillips (“Phillips”) on or about January 4, 2016. (Id. ¶ 11.) It
further appears to the Trustee that between December 29, 2015, and February 3, 2016, Sanford
and Esposito communicated by email and other means regarding the sale of the 67th Street
property and the $50,000 payment Esposito requested and received out of the proceeds of that
sale. (Id.)

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A post-judgment examination of Sanford in the state court matter, Knopf v. Sanford,
Index No. 652743/2018 (N.Y. Sup. Ct. Mar. 6, 2019), on November 1, 2019 (following relief
from stay), raises questions about whether Pursuit’s $50,000 payment to Esposito was either a
“finder’s fee” or a payment for the assistance of Esposito’s wife, Melissa Ringel (“Ringel”),
rather than fair consideration for attorney services. (ECF Doc. # 107-1 at 4, ¶ 12.) The
Application lists the following excerpts of Sanford’s post-judgment examination in support of
Esposito acting as Pursuit’s attorney:
See id., Ex. 5 at 25:23–26:1 (Sanford’s acknowledgment that the First
Department denied his motion to vacate an escrow requirement relating to
the sale proceeds on December 29, 2015.)
Id. at 39:10–39:17 (relating to the meeting between Sanford and Esposito
on January 4, 2016);
Id. at 40:19–41: 20 (Sanford’s testimony that he did not want to move for
re-argument of the December 29, 2015 order and therefore met with
Esposito instead);
Id. at 46:17–47:5 (Sanford’s admission that he discussed with Esposito
possible alternatives to moving for reargument of the December 29 order
on notice);
Id. at 49:4–49:16 (Sanford’s testimony that Esposito told him that there
were people working upstairs at the First Department who Sanford could
call for an advisory opinion);
Id. at 87:25–88:21 (Sanford’s suggestion that he paid Esposito $50,000 as a
finder’s fee or referral fee for locating Dechert, LLP to appear as his
attorney in his case with the Knopfs).
Id. at 132:7–132:22 (Most importantly, Sanford testified that on January 11,
2016, Esposito solicited the $50,000 payment by saying: “by the way, your
life is going to get better soon, because there was no question in my mind
or in his that anyone at the First Department would tell my lawyers, there is
no restraint [against selling the 67th Street property].”) The next day,
January 12, 2016, Sanford obtained from Esposito’s wife—in her capacity
as Court attorney—an ex parte opinion that here was “no restraint” against
selling the 67th Street property, as this Court noted in its March 12, 2019
decision). ECF Doc. # 67, p. 9 n.3 13.
In the Application, the Trustee requested the following documents (the “Discovery
Request”):

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1. Communications between Michael Hayden Sanford (“Sanford”) and
Frank M. Esposito (“Esposito”) sent or received between December 29,
2015 and February 3, 2016 inclusive, including but not limited to any
emails.
2. Any attachments to emails between Sanford and Esposito sent or received
between December 29, 2015 and February 3, 2016 inclusive.
3. Documents provided or shown by Sanford to Esposito at their meeting in
the Oyster Bay, New York area on January 4, 2016.
(ECF Doc. # 107-1 at 18.)
In their December 3, 2020, letter, the Trustee and the Knopfs further request:
(A) his emails to and from Mr. Esposito during the December 29, 2015
through February 3, 2016 period that concern Pursuit’s 67th Street
apartment or the First Department orders relating to that apartment, since
the Trustee has waived Pursuit’s attorney client privilege under CFTC v.
Weintraub, together with
(B) a privilege log compliant with Fed. R. Civ. 45(e)(2)(A)(ii) for any
emails to or from Mr. Esposito that Mr. Sanford asserts relate solely to other
matters.
(ECF Doc. # 118 at 2.)
This Court held a hearing on December 8, 2020, regarding the Application. After
hearing Sanford’s, the Trustee’s, and the Knopfs’ respective arguments, this Court ruled
in favor of the Trustee, allowing the Trustee to serve a document subpoena on Sanford.
The Court also required Sanford to file a privilege log and to submit to this Court any
documents withheld on grounds of privilege for in camera review. The Court also signed
an order on December 10, 2020 authorizing the Trustee to serve a document subpoena on
Esposito. (ECF Doc. # 123.)

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II.

Timeline of events between December 29, 2015, and January 16, 2016

In July 2017, the Presiding Justice of the First Department asked the Inspector General of
the New York State Office of Court Administration (“OCA”) to investigate the Knopfs’
allegations; and that following a thorough investigation, the Inspector General’s Office issued a
March 16, 2018, report that confirmed many of the Knopfs’ allegations made in their complaint.
Knopf v. Sanford, N.Y.S.3d 777, 784 (N.Y. Sup. Ct. 2019). In considering the privilege issues, it
is useful to review a timeline of events based on the OCA Report, as discussed in depth by the
New York Supreme Court in Knopf v. Sanford:

Beginning in August 2015 and continuing through January 2016, Sanford
engaged in ongoing discussions with Frank Esposito about the possibility
of Sanford’s retaining Esposito to perform transactional legal services for
some of Sanford's companies. (See Esposito Deposition, Index No.
153821/2019, NYSCEF No. 111, at Transcript (Tr.) 51-56.) Esposito’s
wife, Melissa Ringel, was then the special master in charge of the First
Department's Pre-argument Conference Program, also called the Special
Master’s Program or the Office of the Special Master, which mediates cases
on appeal. (OCA Report at 6.) Ringel had been employed in various roles
at the First Department for about 15 years. (OCA Report at 14.)
After Justice Sweeny imposed an escrow requirement on selling the PHC
and after the First Department denied vacatur of that requirement, Sanford
expressed disagreement with the First Department’s orders to Esposito and
gave him a copy of the November 2015 and December 2015 Orders. (See
OCA Report at 15.) Esposito then discussed Sanford's concerns with Ringel,
who asked to see the orders. (Id.) Ringel stated in a January 17, 2018,
interview with the OCA Inspector General’s Office, though, that Esposito
gave her the November 2015 and December 2015 Orders, but not the
October 2015 Order that restricted Sanford’s use of the sale proceeds, which
Esposito got from Sanford. (Id.)
Also on January 11, Ringel called Evan Glassman, Esq., a litigation partner
at Steptoe & Johnson LLP, to inquire whether Glassman would be interested
in working with Esposito on a pending matter. Glassman told Ringel that
he did not have time to discuss her inquiry. He was extremely busy due to
an impending court hearing in another case, he said. (See Excerpts from
Glassman Deposition, NYSCEF No. 177 at Tr. 29, 31.) That same day,
Sanford instructed his attorneys, Akerman of Dorsey & Whitney (litigation
counsel) and Feldman (real-estate counsel Sanford retained in connection
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with the PHC sale), to call the First Department to clarify the meaning of
the Court's December 2015 Order. (OCA Report at 7.)
On January 12, Akerman and Feldman called Ringel on her direct line at
the First Department. They called Ringel’s number at least three times that
day. They spoke with her for several minutes on one of those occasions
about the relationship among the Court’s October, November, and
December 2015 Orders — without opposing counsel on the line. (See OCA
Report at 17, 19, and Attachment J.) Akerman gave testimony regarding
the call at a deposition in Knopf v Phillips, No. 16-CV-06601, an action
before Judge Denise L. Cote in the U.S. District Court for the Southern
District of New York. Akerman testified that he had been speaking with
Feldman on the phone and that he then called the First Department and
patched in the person who answered. (Excerpts from Akerman Deposition,
NYSCEF No. 174, at Tr. 22.) Akerman also testified that when he and
Feldman reached Ringel, he described to her the October 2015 and
November 2015 Orders and asked her how the November Order affected
the October Order and what the October Order's status was. (OCA Report
at 11.) Akerman testified that it seemed as though Ringel had the orders in
front of her when she told him that the November 2015 Order had “basically
nullified” the October 2015 Order and that the December 2015 Order had
no effect on the October 2015 Order because that order had already been
nullified. (Id.)
In spring 2016, the First Department Clerk of Court, Hon. Susanna Molina
Rojas, asked Ringel informally about the circumstances of the January 12
call. Ringel told Rojas that she had merely answered “a simple procedural
question” by advising Akerman and Feldman “that once the court decides a
motion, any interim orders would no longer be in effect.” (OCA Report at
7.) Ringel later told the Inspector General's Office that she had informed
Akerman and Feldman that “the interim order [i.e., the October 2015 Order]
was no longer in effect once there was a summary judgment by the bench.”
(Id. at 17.)
Immediately after the conference call with Ringel, Feldman wrote a
memorandum to file memorializing the call.
He forwarded his
memorandum to Phillips’s title company. (OCA Report at 14.) Feldman's
memo stated that Ringel “confirmed” to him and Akerman that the “October
22, 2015 Interim Order with restraints was only in effect until motion
decided” and that “[o]nce full [First Department] panel decided motion and
entered the November 12, 2015 Order denying the restraints, all restraints
were vacated.” (OCA Report at 15 & Attachment D.) Akerman, who wrote
a substantively identical memorandum about the call, gave his
memorandum to Pursuit. (See Ackerman Aff., NYSCEF No. 190, at ¶¶ 57.) These memorandums, relying entirely on Ringel’s legal opinions,
allowed the sale of the PHC to close three weeks later in violation of the
First Department's October 2015 escrow order.
On January 14, two days after Akerman and Feldman's call with Ringel,
Glassman called Ringel back. They discussed whether Glassman would be
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willing to help Esposito with the litigation matter Ringel mentioned to
Glassman on January 11. (NYSCEF No. 177, at Tr. 29, 31.) Glassman
ultimately declined to act as Esposito’s co-counsel.
Also on January 14, Ringel used her court email account to contact James
M. McGuire, Esq., at Sanford's request, relayed through her husband,
Esposito, to ask whether McGuire would be interested in helping Esposito
represent Sanford in the Knopf litigation. (See OCA Report at 18; January
14 Emails.) McGuire was then a partner at the Dechert, LLP, law firm
(“Dechert”). From 2005–2011, McGuire served as an Associate Justice of
the Appellate Division, First Department. Ringel served as McGuire's
Principal Law Clerk for three years. (OCA Report at 4.)
Esposito also telephoned McGuire in early January 2016 to ask whether
McGuire and Dechert would represent “MH Sanford & Company and other
corporate defendants in certain litigation.” (Esposito Deposition, Index No.
153821/2019, NYSCEF No. 111, at Tr. 71.) McGuire later agreed to join
Sanford's team.
On January 16, 2016, Sanford made an initial payment of $5000 to
Esposito’s firm. (Checks Made to Esposito at 2, NYSCEF No. 187.)
On February 1, 2016, the sale of PHC closed for $3 million. Neither Pursuit
nor Sanford put any of the proceeds into escrow (OCA Report at 5), in
violation of the First Department’s October 2015 Order.
Id. at 790–793.
III.

Esposito’s Privilege Log, Items 1–3, & 7 – Require In Camera Review

Subpoenas were served on both Sanford and Esposito covering many or most of the same
documents. (See ECF Doc. ## 121, 124.) While Sanford has objected that he should not be
required to produce documents or information that has been requested and can be produced by
other parties, that objection is overruled. The Trustee is entitled to see all documents requested
by the subpoenas in the possession, custody, and control of each person upon whom a subpoena
is served. This assures that any notations marked on a document by any person who possesses a
copy have been produced, and that documents have not been altered.
In their Joint Reply, the Trustee and Knopfs request Items 1–7 of Esposito’s privilege
log. Esposito’s privilege log vaguely provides that attorney-client privilege applies to the items
without any assertation as to whether MHS&Co., Pursuit, or Sanford asserts the privilege.
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Item 1 from Esposito’s privilege log, a January 4, 2016, email from Sanford to Esposito,
appears to be relevant. (ECF Doc. # 128-1 at 3.) Esposito’s privilege log details that the subject
of Item 1 is an explanation and description of MHS legal needs and asserts that attorney-client
privilege applies. However, in an earlier November 1, 2020, deposition (Joint Reply Ex. 7),
Sanford testified that he met with Esposito on January 4, 2016, to explore with Esposito the
possibility of obtaining clarification of the meaning of the First Department orders impacting
Pursuit’s ability to sell the apartment without making a motion. (Id. at 40:19–41:20.) The
Trustee and the Knopfs assert that there is an inference that any email between Sanford and
Esposito on the day of the meeting also relates to Pursuit’s apartment.
Item 2 from Esposito’s privilege log is a January 5, 2016 email, from Sanford concerning
a “collection of .pdf documents” and “logistics.” (ECF Doc. # 128-1 at 3.) According to
Ringel’s 2017 deposition, “a day or two” after Esposito’s January 4, 2016, meeting with Sanford,
she looked at the First Department orders. (Joint Reply Ex. 8 at 30:9–30:12.) In her interview
with OCA, Ringel stated that she “asked for copies” of the orders Sanford was complaining of at
that time. (Id. Ex. 9 at 15.) Given that the communications between Sanford and Esposito
occurred at the precise time that Ringel was becoming involved, these emails appear to be about
Pursuit’s apartment.
Item 3 from Esposito’s privilege log is a January 6, 2016, email from Sanford to Esposito
described as a “general thank you.” (ECF Doc. # 128-1 at 3.) This email was also provided at or
about the time Ringel was becoming involved in the matter. That email appears to concern
Sanford’s intent––the principal inquiry in a fraudulent conveyance action. In re Sharp Intern.
Corp., 403 F.3d 43, 56 (2d Cir. 2005) (“‘[T]o prove actual fraud under §276, a creditor must
show intent to defraud on the part of the transferor.’” (citation omitted)).

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Item 7 refers to retaining James McGuire on behalf of Sanford, and “the transmission of
engagement funds.” (ECF Doc. 128-1 at 4.) If “transmission of funds” refers to transferring the
$50,000 to Esposito, then it is relevant to the Trustee’s potential claims against Esposito since it
would concern Sanford’s intention in causing Pursuit to pay Esposito the $50,000. If the email
refers to paying McGuire and Dechert, it is likewise relevant because, on that same day
according to Sanford, McGuire declined an engagement (Joint Reply Ex. 13 at 5) solely because
Sanford did not have sufficient money on hand to retain him. (See id. Ex. 6 at 163:2–163:7). If
the email shows that Sanford intended to use the proceeds from a sale of the 67th Street property
to pay McGuire and Dechert, it remains relevant to those claims as indicative of Esposito’s
knowledge that Sanford planned to use Ringel’s opinion to persuade Phillips to close,
notwithstanding the First Department orders.
Sanford states that he “has no objection whatsoever to Esposito producing emails he does
not possess to the Court for an in-camera review.” (ECF Doc. # 128 ¶ 8.) Accordingly, the
Court ORDERS that Esposito produce Emails 1–3, 7 to the Court for an in camera review.

IV.

Email E - Esposito’s Privilege Log, Items 4 & 5 – Require Production

Sanford asserts attorney-client privilege, common interest privilege, and a relevance
objection. With respect to the relevance objection, Sanford explains:
email references a person [Frank Esposito] will show the Compendium to
for their procedural knowledge of records on appeal. I voluntarily provided
the email in an investigation (see ECF Doc 120, pg41- 42). The Court
should determine if disclosure is appropriate / necessary in this action.
* privilege asserted only with [Frank Esposito], not person referred to
(ECF Doc. # 128-1 at 818.)

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In New York, the attorney-client privilege is not absolute. Hoopes v. Carota, 531
N.Y.S.2d 407, 409 (3d Dep’t 1988), aff’d, 543 N.E.2d 73 (N.Y. 1989). Because it “constitutes
an ‘obstacle’ to the truth-finding process,” its “invocation . . . should be cautiously observed to
ensure that its application is consistent with its purpose” Matter of Jacqueline F., 391 N.E.2d
967 (N.Y. 1979). The fact that a communication occurs between a lawyer and a client is not
enough; rather, the information must be a confidential communication for the purpose of
obtaining legal advice. Matter of Priest v. Hennessy, 409 N.E.2d 983 (N.Y. 1980). Furthermore,
the party asserting the privilege has the burden of bringing the information sought within the
privilege. Id. at 70.
In the first message of the email chain labeled as “Email E,” Sanford forwarded a
message to Esposito on January 7, 2016, at 3:59 p.m., commenting: “fyi: on pending Feb 2016
Appeal..” The forwarded message is an email from Berry to his, MHS&Co.’s, Pursuit’s, and
Sanford Partners’ appellate counsel (Attorneys Daniel Goldberg and Karen Sebaski of Holwell
Shuster), requesting that Holwell Shuster immediately send over a compendium of exhibits to
attach to a proposed stipulation. The subject of that email is “stipulation re record.”
This forwarded email is most likely the same forwarded email in Item 4. The subject of
Item 4, sent on January 7, 2016, is “Forward of 1/6/16 email from Daniel Goldberg to MHS
regarding 1/6/16 email from Eric Berry to Daniel Goldberg and Karen Sebaski re: “stipulation re
record” and concomitant “e-mail chain including strategy.” (ECF Doc. # 128-1 at 3.) The
Trustee and Knopfs correctly surmise in their Joint Reply that Item 4 was prompted by an email
sent by the Knopfs’ counsel on January 6, 2016 (Joint Reply Ex. 10), which was about the
Knopfs’ pending appeal in which they sought an order of attachment against Pursuit, and the
Knopfs’ concerns that Pursuit was trying to delay that appeal. That appeal was decided in the

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Knopfs’ favor on March 24, 2016. Knopf v. Sanford, 26 N.Y.S.3d 866 (1st Dep’t 2016) (“. . .
Pursuit . . . is prohibited from transferring, or further diminishing, impairing or encumbering the
properties it acquired with real estate loans from plaintiffs, including but not limited to the
property located at 10 Bedford St., New York, New York, as well as any proceeds derived from
the sale of such properties prior to the date of this order”).
In response to the forwarded email, Esposito stated on January 7, 2016, at 3:15 p.m.:
Can you email the stuff you want to fedex? I'm going to Hershey and
won't be back in my office for days.
(Email E at 1.) Critically, in an email sent to Esposito January 7, 2016, at 3:28 p.m., Sanford
replies, in relevant part:
That’s the problem: it’s a probted, bound Compendium of Exhibits and too
big to email.
Is there another address I could FedEx to (or should I send to a friend in
Oyster Bay?), so M can get a look. Her opinion whether or not to demand
inclusion is crucial.
(Id.) It is highly likely that the “M” referred to in this email is none other than Esposito’s
wife, Melissa Ringel, who was, at the time the email was sent, a First Department special
master. For instance, in response to Sanford’s inquiry about which address to send the
Compendium of Exhibits to “so M can get a look,” Esposito stated, on January 7, 2016 at
3:30 p.m.:
Send it to me at 20 Glendale Drive Oyster Bay Cove, NY 11771
(Id.)
The fact that Esposito told Sanford to send it to his own address in Oyster Bay further
suggests that M is Esposito’s wife. Furthermore, according to Ringel’s 2017 deposition, “a day
or two” after Esposito’s January 4, 2016 meeting with Sanford, she looked at the First

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Department orders. (ECF Doc. # 7, Ex. 8 at 30:9–30:12.) Thus, this email chain occurred right
around the time that Ringel was looking into Sanford’s case.
Sanford has also been deceptive about what Email E concerns. Sanford vaguely states in
his declaration that this document includes a statement about Esposito referring him to another
person who might be able to provide assistance regarding the same concerns that led him to
contact Esposito. According to the Knopfs, in conferences aimed at resolving these issues
without further assistance of the Court, Sanford stated to the Knopfs’ counsel that the email only
identifies the attorney by a single initial.
On the contrary, there is no statement made by Esposito referring him to an attorney.
Sanford has deliberately left out that the statement that references an attorney’s initial was a
statement made by him himself and not Esposito. Ordinarily, whether an attorney was consulted,
fee arrangements, and the identity of the lawyer or the client are not deemed confidential
communications. Priest v. Hennessy, 409 N.E.2d 983, 986 (N.Y. 1980); Matter of Jacqueline F.,
391 N.E.2d 967, 969–70 (N.Y. 1979); Arnold Constable Corp. v. Chase Manhattan Mortg. &
Realty Tr., 309 N.Y.S.2d 422, 423 (1st Dep’t 1977)
There is also nothing to indicate that this email relates to matters of MHS&Co. Indeed,
the email used by Sanford is [e-mail], which appears to be an email address
used for Sanford Partners, LP. On the contrary, the information suggests that Sanford was acting
in his capacity as a corporate officer of Pursuit in communicating with Esposito. Sanford has not
met his burden in showing that the communication was for the purpose of obtaining legal advice
on behalf of MHS&Co.
Given that no privilege applies and that the communications are highly relevant, the
Court ORDERS the production of Items 4 & 5/Email E.

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V.

Email D – Esposito’s Privilege Log, Item 6 – Require Production

Sanford asserts work product protection and common interest privilege with regard to the
redacted section of Email D. He explains in his declaration that his thought processes should be
“redacted because otherwise his analysis and work product, as his own attorney at a multiparty
inquest, would lose the normal protections otherwise afforded to someone in his situation where
he is communicating with another attorney about a matter of common interest.” (ECF Doc. #
128 ¶ 22.)
In the unredacted Email D (with the requested redaction in italics), Sanford states, in an
email sent to Esposito on January 13, 2016:
stress.
bastards could usurp the appellate div. and the appeal they made of Braun
ordering an inquest by rushing this inquest (the computer created it after
they filed NOI last mo and I haven't had anyone appearing to move to
vacate on behalf of corporate entities). If Gammerman ignores Braun's
direction that this inquest should be before a jury and denies Pursuit's new
counsel's request for (30) days to get up to speed (and worse - Jim can't
appear tomorrow and is instead sending a 25yr old kid from his office - all
he has), we're screwed. Knopf could get a "sum certain" number and rush
to put a lien on props
any advice?
(Email D.) The italicized portion is relevant in that it shows that Esposito had detailed
knowledge of the appeal, which would further implicate him in Sanford’s fraudulent scheme. In
particular, Ringel testified in her 2017 deposition that she did not know about the Knopfs’
pending appeal when she received Akerman’s call. This email goes to further show that Esposito
withheld information from Ringel as part of the alleged scheme.
This email also supports the Knopfs’ theory that Sanford was looking to buy more time
between Ringel’s anticipated advisory ruling and the decision on the Knopfs’ appeal to close the
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sale to Phillips, since if the Knopfs prevailed on the appeal while the property remained unsold,
the scheme would have been foiled. Thus, the Trustee’s and Knopfs’ claims of Sanford’s and
Esposito’s fraudulent acts are at least colorable, and the information they seek is not only
relevant, but specific.
On the other hand, Sanford’s arguments have little merit. Sanford’s position is that he
was not asking Esposito for legal advice as Pursuit’s counsel. (ECF Doc. # 128 ¶ 20.) If the
substance of Sanford’s conversation with Esposito related principally to Sanford’s official duties
or Pursuit’s general affairs, Esposito was dealing with Sanford on behalf of Pursuit. See Sieger
v. Zak, 874 N.Y.S.2d 535, 538 (2d Dep’t 2009) (finding that the corporation could not assert
attorney-client privilege where the communications listed on the defendants’ second privilege
log were principally made on behalf of a shareholder in his individual capacity); Brandman v.
Cross & Brown Co. of Fla., 479 N.Y.S.2d 435, 437 (N.Y. Sup. Ct. 1984) (examining the nature
of the work by the attorney, whether the work was seemingly done on behalf of the corporation,
and whether it benefited the corporation in determining whether the corporation’s
communications were protected by attorney-client privilege). The email primarily concerns the
lien on Pursuit’s property, a matter that is related to Sanford’s official duties or Pursuit’s general
affairs. Counter to Sanford’s arguments, his seeking advice on Pursuit’s legal matters,
irrespective of the legal advice actually obtained, is sufficient to bring this within Pursuit’s
attorney-client privilege, which again is waived. U.S. Postal Service v. Phelps Dodge Refining
Corp., 852 F. Supp. 156, 163 (E.D.N.Y. 1994) (“The attorney-client privilege would apply to
such documents if they contained communications intended to be confidential and a dominant
purpose of the communication was to obtain legal advice.”); Cuno, Inc. v. Pall Corp., 121 F.R.D.
198, 201 (E.D.N.Y. 1988) (“The cases are uniform in the patent field that where the primary

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purpose is securing legal advice, the privilege will be upheld despite the inclusion of technical
data in the communication.”).
Sanford cannot withhold information under the guise of privilege, especially where he
solicited and/or obtained legal advice concerning matters directly impacting upon the interests of
Pursuit. A fiduciary has a duty of disclosure to the beneficiaries whom he is obligated to serve
as to all of his actions. Hoopes v. Carota, 531 N.Y.S.2d 407, 409 (3d Dep’t 1988), aff’d, 543
N.E.2d 73 (N.Y. 1989) (“The salient factor on this issue is that defendant, both in his capacity as
a trustee and as a corporate officer and director, was the fiduciary of plaintiffs. In any of these
roles, defendant was not entitled to shield absolutely from his beneficiaries the communications
between him and his attorneys regarding pertinent affairs of the trust and of the corporation
(which, in any event, are inextricably intertwined . . . .”). Sanford cannot subordinate the
interests of Pursuit, which is directly affected by the advice sought, to his own private interests.
(Id.)
As such, Sanford has not met his burden in showing that the email is protected by
common interest privilege and work product protection as his own attorney. Therefore, the
Court ORDERS the production of Email D/Item 6 without any redaction.

VI.

Emails A, B, and C – Are Relevant and Not Privileged

The Trustee and Knopfs do not claim in their Joint Reply that Emails A, B, and C are
relevant, but ask that the Court to require production of any documents that are provided for in
camera review that are found to be relevant. “When the discovery sought appears relevant, the
party resisting the discovery has the burden to establish the lack of relevance by demonstrating
that the requested discovery (1) does not come within the scope of relevance as defined under

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Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned
by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Horizon
Holdings, LLC v. Genmar Holdings, Inc., 209 F.R.D. 208, 211 (D. Kan. 2002). “However, when
a request for discovery is overly broad on its face or when relevancy is not readily apparent, the
party seeking discovery has the burden to show the relevancy of the request.” Bonanno v.
Quizno’s Franchise Co., 255 F.R.D. 550, 553 (D. Colo. 2009).
Upon review of these documents, the Court finds that Emails A, B, and C directly
concern the fraudulent transfer claims against Esposito; they may also be relevant to show that
Sanford’s intent in speaking to Esposito was to solicit advice regarding Pursuit’s claims,
ultimately leading to the alleged scheme. Those documents may also support showing that
Sanford was acting in his capacity as a corporate officer for Pursuit in communicating with
Esposito. In any case, the objecting party bears the burden to show requested discovery is not
relevant. Id. That burden has not been met. Sanford asserts the attorney-client privilege, work
product protection, and common interest privilege for both Emails A and B. The Court
concludes that the attorney-client privilege does not apply.
Sanford explains that Emails A and B concern:
Pro Se Sanford discussing his litigation strategy representing himself at the
upcoming inquest with [Frank Esposito], who is general counsel for
Sanford's wholly-owned MHS&Co., a Pursuit Creditor.
(ECF Doc. # 128-1 at 818.) Emails A and B are part of the same chain of emails sent between
Sanford and Esposito on January 18, 2016. That email chain does not indicate in any way that
Esposito is only representing MHS&Co. For instance, in the initial email of the chain, Sanford
discusses Pursuit’s liability several times, explaining away various theories of liability asserted
by the Knopfs. In fact, the email explains that liability should rest with Sanford and MHS&Co.

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It is also unclear how Pro Se Sanford and MHS&Co have a common interest, as Sanford has
previously asserted.
It also appears that there is an attachment to Email A and B labeled “06-12-13 Berry
Summary Judgement Reply.PDF.” However, Sanford did not produce this attachment. The
Court ORDERS that Sanford submit the attachment to the Court for in camera review. The
Court also ORDERS that Sanford produce all attachments to the emails as well.
Sanford explains that the subject of Email C, sent from Frank Esposito to Dechert
Attorneys on February 3, 2016, at 7:38 p.m., is follow-up communication after meeting at
Dechert’s offices with Sanford and Esposito, in which Dechert requests additional documents to
review in anticipation representation of Sanford and his companies. Sanford asserts attorneyclient privilege, work product protection, and common interest privilege.
Dechert requested the following documents:
For immediate review on the inquest issue (based on your recounting
of the relevant proceedings):
a. 2/17/2015 Knopf memorandum seeking severance and judgment against
Pursuit only
b. 3/12/2015 Pursuit response (filed by Meister)
c. 7/23/2015 transcript
d. 9/8/2015 stipulation giving the corporate entities 90 days to find counsel
(expiring 12/8/2015)
e. 12/8/2015 transcript
f. 12/8/2015 stipulation giving more time to get an attorney
g. 1/15/2016 Knopf memorandum now saying that inquest involves
judgment against not just Pursuit but also Sanford personally
h. __/__ 2016 Sanford appelleeʼs brief (by Dan Goldberg) relating to
inquest proceedings
(Email C.) Sanford is vague as to why any privilege applies to this email. The email explicitly
refers to Pursuit and its litigation matters several times.

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Esposito responded to this email on February 3, 2020: “Thank you, gentlemen.” (Id.)
This email is relevant in showing that Esposito was involved in Pursuit’s matters, including the
inquest issue. It suggests Esposito was actively helping Sanford delay the attachment of the lien
on Pursuit’s property to effectuate the scheme.
Accordingly, the Court ORDERS Sanford to produce Emails A–C.

VII.

Sanford’s Prior Testimony Has Waived Any Claim of Privilege

Even if privilege applies, the Court concludes that Sanford’s prior testimony has waived
the privilege. The Trustee and the Knopfs cite the following relevant excerpts of Sanford
testimony at his November 24, 2020, deposition in Knopf v. Esposito, 17 Civ. 5833 (DLC), in
which Sanford testified how he and Esposito reached an agreement that Pursuit’s other attorneys
could call Esposito’s wife for an ex parte interpretation concerning the First Department rulings
that created an impediment to an escrow free sale of Pursuit’s apartment:
[MR. SANFORD] . . . when I asked Mr. Esposito simply who can get this
information confirmed if dissolved, because if we walk into the lower level
[of the First Department] as Phillips’ counsel wanted to do, it was their idea,
not mine. I said we wanted to wait until the truth came out. I've been waiting
for years sell Pursuit’s properties to pay for counsel.
It wouldn’t make a difference to me if it was a week or a month, I just
wanted a real lawyer. And Esposito, maybe it was malpractice, but Esposito
said anyone can provide this. Esposito then gave a phone number, which he
conveyed was an upstairs number. Now, it appears, Esposito may have
given his wife's phone number, which is probably why OCA took her to
task.
(Joint Reply Ex. 6 at 69:11–70:4.)
Sanford further testified:
[MR. SANFORD] . . . I asked him can we contact someone else. And
maybe he committed malpractice. There’s nothing else nefarious here. He
said anyone can. He was wrong. Did he ask his wife; I suppose he did.
Maybe she [w]as wrong, maybe that was malpractice. Maybe that’s what
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OCA got upset about, that she should have hung up the phone when anyone
called about a matter she was aware of. And was she aware, she was,
because I asked Esposito how could I complain about Lauren Holmes what
she did on this day describing Sanford Exhibit 1.
(Id. at 77:21–78:10.)
[MR. SANFORD] . . . I kept on saying clerk, call the clerk’s office,
procedural thing, just confirm, because Mr. Esposito told me that they could
whip out a computer, and it would be obvious, because they keep a track of
all of the decided motions.
(Id. at 140:23–141:5.)
Q. And you gave [Nathaniel Akerman] the number that turned out to be
the one that was answered by Ms. Ringel; is that correct?
A. No, I’m not saying that. I gave him a number that Frank Esposito gave
me when I called Frank and said what number my lawyers called to the
clerk's
office, and he gave me a number.
(Id. at 141:15–141:22.)
Q. Before you received that with 1:59 e-mail on January 12th did you
have any 16 reason to think that the call would end up being answered by
Ms. Ringel?
A. I thought it was a possibility. I asked Frank if she felt it was a problem
and he said no, she is allowed to. I was worried about every single
problem. I said what if it goes upstairs and she gets the call. I asked him
these questions. I wanted to think about every single potential for a
problem.
(Id. at 169:14–169:24.)
Regarding his communications with Esposito on behalf of MHS&Co., Sanford testified:
That’s the real causation for what happened. Ringel [sic: probably
“Holmes”] refused to do her job forcing the defendants in the Knopf v.
Sanford case to return to find basically clarification from the Court and I,
acting upon advice of counsel, MH Sanford counsel, Esposito said you can
just call, Pursuit's lawyers can just call the court, and that’s all they did.
There was no ill-intent here anywhere.
(Id. at 148:3–148:11.)

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Sanford has also stated that the activity that Esposito and Ringel were discussing
regarding the phone call and her advisory opinion related to Esposito’s work for MHS&Co.
Frank didn’t solicit a bribe. That’s just bullshit. Frank was simply trying to
assist MH Sanford & Company doing his job and he didn’t know what he
was doing.
And he got a bit greedy and wanted the money as fast as possible and maybe
did things that weren’t appropriate and I wish he hadn’t.
(Id. at 213:4–213:11; see id. at 153:22–154 (“I think Esposito gave me a number, I don’t know
what number it was, and it did go directly to his wife, that is true, which I don’t know, I really
don’t, if that happened, maybe because she felt she and her husband would get all this money
from me hiring MH Sanford & Company hired them[.]”).)
Given Sanford’s testimony regarding communications with Esposito, the Court concludes
that any assertion of privilege by MHS&Co. or Pursuit has been effectively waived.

VIII. The Communications Fall Within the Crime-Fraud Exception

Even if the communications are privileged, the Court concludes that they fall within the
Crime-Fraud Exception. To establish that a communication is within the crime-fraud exception
to the attorney-client privilege, the party seeking to overcome the privilege need not allege a
violation of either Title 18 of the United States Code (Crimes and Criminal Procedure) or the
New York Penal Law. Instead, all that is required is substantial evidence supporting an actual
fraudulent conveyance. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731
F.2d 1032, 1039, 1041 (2d Cir. 1984) (finding that the crime-fraud exception was satisfied,
because “the advice was sought in furtherance of a fraud that is not necessarily a violation of the
criminal code,” and “[t]he record is adequate . . . to support a conclusion that AG’s sale of its

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stock in International may be a fraudulent conveyance within the purview of New York’s
statutory ban[,]” citing Debtor and Creditor Law §276).
The Joint Reply is persuasive in citing other decisions finding the same transactions to be
fraudulent conveyances. For instance, in Knopf v. Phillips, 802 F. App’x 639 (2d Cir. 2020),
which is based on the same transactions that underlie the Trustee’s potential claims against
Esposito, the Court of Appeals for the Second Circuit reinstated the Knopfs’ allegations that the
sale to Phillips was a fraudulent conveyance under Debtor and Creditor Law §276. Id. at 642
(“New York law contemplates that a transaction may be either actually or constructively
fraudulent.”); Id. at 643 (“An actually fraudulent conveyance . . . is one made with actual intent
to defraud,. . . [.]”); Id. at 644 (“The Knopfs submitted evidence . . . that Phillips . . . knew of the
various court orders that had restricted the sale of the PHC. . . [.]”) In Phillips, the Court of
Appeals reversed a grant of summary judgment. The Court of Appeals therefore necessarily
found that there was substantial evidence supporting the claim, which in turn means that the
communications at issue are within the crime-fraud exception.
In a 2019 decision, Justice Lebovits held that the crime-fraud exception (known as the
“wrongful act” exception under New York law) applied regarding Sanford’s assertion of
attorney-client privilege:
This court must ask whether the Knopfs’ evidence, taken as a whole,
establishes probable cause to believe that a wrongful act was committed –
whether by Sanford or by the other individuals involved – and that
communications among and between Sanford, Akerman, Feldman, Ringel,
McGuire, Esposito, and others furthered that wrongful act. This court
concludes that the Knopfs have met that burden.
Knopf v. Sanford, 106 N.Y.S.3d 777, 820 (N.Y. Sup. Ct. 2019).
The crime-fraud exception thus applies here as well.

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IX.

Conclusion

For the reasons explained above, all of Sanford’s and Esposito’s objections based on
attorney-client privilege, work product protection, or common interest privilege are overruled,
except that Esposito is ORDERED to provide the Court with copies of items 1, 2, 3 and 7 on his
privilege log for in camera review; as to those documents only, the Court reserves decision
whether attorney-client privilege applies. All other documents must be produced in unredacted
form to the Trustee by Sanford and/or Esposito on or before February 1, 2021.

IT IS SO ORDERED.
Dated:

January 15, 2021
New York, New York
_____

Martin Glenn____________

MARTIN GLENN
United States Bankruptcy Judge

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EXHIBIT 5

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Re one more t db t

From:
Subject:
Date:
To:

11/20/20 7 13 AM

"Frank Esposito" <[e-mail]>
Re: one more tidbit..
Tue, January 12, 2016 1:59 pm
"Michael Hayden Sanford" <[e-mail]>

The Title company should be satisfied at this point.
On Jan 12, 2016, at 8:21 AM, Michael Hayden Sanford <[e-mail]> wrote:
Ok, we will
Sent from my iPhone
On Jan 12, 2016, at 6:16 AM, Frank Esposito <[e-mail]> wrote:
Ok. Let's touch base later and discuss options.
On Jan 11, 2016, at 8:20 PM, Michael Hayden Sanford <[e-mail]> wrote:
new Federal yes (it should be over soon); big one, for right now I need him or
else I default. Jim wasn't the person I envisioned going to trial on my case..
Sent from my iPhone
On Jan 11, 2016, at 8:06 PM, Frank Esposito <[e-mail]> wrote:
Ok, so are we using Jim to litigate these cases?
On Jan 11, 2016, at 7:46 PM, Michael Hayden Sanford
<[e-mail]> wrote:
I don't know. One of (2) ways:
(a.) he went to trial support last week (I checked with
them after Christmas and he had not filed for an
inquest from the July 2015 Braun decision, which he
was directed to do; I figured he preferred to instead
take his chances that appellate sees it his way and
awards a "sum certain" on contract claims rather than
risk a jury smelling the rottenness of what's up..).
If he did go recently, he may have played the "elderly
card" (when I called trial support specifically asked me
if "anyone elderly involved, because we expedite in a
few weeks if that is the case..") and didn't notify me of
his application. If this is what it's about (I'm doubtful),
then we're at the actual inquest stage now (I am
totally unprepared) or at a pre-conference to schedule
for it.. (I'm not sure, I've never done this before)
https //webma 04 reg ster com/proma /src/pr nter_fr end y_bottom …passed_ent_ d=0&ma box= NBOX&passed_ d=204955&v ew_unsafe_ mages=

Plfs' Ex. 125

Pursuit000322

Page 1 of 4

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11/20/20 7 13 AM

OR
(b.) the computer created this initial status/scheduling
conference because he filed a NOI on 12/9/15, the
day after Braun ended the stay of proceedings
(because I didn't have counsel) and set a next
appearance date for Feb 16th - which I had thought
was my hard deadline by which to engage counsel to
appear..
So, I need Jim Prestiano to now also file an
appearance tomorrow (he just did Federal today as a
favor) and request an adjournment (fortunately Jim
has a court conflict in Riverhead on Thur) for (30)
additional days as he is newly appearing and has to
review the file, especially re (i) necessary open
discovery as we may need to vacate NOI and we do
have a (ii) deposition tentatively scheduled and that
may lead to (iii) additional counterclaims bring filed..
and we have yet to move for (iv) summary judgment
and intend to request a briefing schedule from lower
court on this subject next month..
essentially we're not nearly ready to schedule a trial
on the 2009 case and in any event all of the
companies have newly appearing counsel that need
to get up to speed with this big file. So, please adjourn
to at least week of Feb 22nd.
That's my plan so far..
Sent from my iPhone
On Jan 11, 2016, at 7:15 PM, Frank M. Esposito
<[e-mail]> wrote:
I had a trial in front of Gammerman
once. He's pretty good, and smart.
He shoots from the hip. How could
he have set something for this
Thursday?
Best regards,
Frank M. Esposito, Esq.
Esposito Partners
275 Madison Avenue
14th Floor
New York, NY 10016
https //webma 04 reg ster com/proma /src/pr nter_fr end y_bottom …passed_ent_ d=0&ma box= NBOX&passed_ d=204955&v ew_unsafe_ mages=

Pursuit000323

Page 2 of 4

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11/20/20 7 13 AM

[phone]
[phone]
[phone] (fax)
[e-mail]
This message and its attachments are
sent from a law firm and may contain
information that is confidential and
protected by privilege from disclosure.
If you are not the intended recipient,
you are prohibited from printing,
copying, forwarding or saving them.
Please delete the message and
attachments without printing, copying,
forwarding or saving them, and notify
the sender immediately.

-------- Original Message ------Subject: one more tidbit..
From: Michael Hayden
Sanford
<[e-mail]>
Date: Mon, January 11, 2016
6:20 pm
To: Frank Esposito
<[e-mail]>
today the 2009 case got
assigned a JHO to meet with
parties this Thursday (scary)
because Berry asked for an
inquest on damages / or
because he filed NOI last mo.
(I need to vacate as u
know)..
It got assigned to Ira
Gammerman, who, at 87, still
may remember Mr. Berry..
pls see attached

Sent from my iPhone

Attachments:
https //webma 04 reg ster com/proma /src/pr nter_fr end y_bottom …passed_ent_ d=0&ma box= NBOX&passed_ d=204955&v ew_unsafe_ mages=

Pursuit000324

Page 3 of 4

Re one more t db t

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11/20/20 7 13 AM

untitled-[1].plain
Size:4.7 k
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