Knopf et al v. Esposito et al

Filing 308

MEMORANDUM AND ORDER denying 280 Motion to Compel. The plaintiffs' January 19, 2021 motion to compel testimony from Ringel is denied. (Signed by Judge Denise L. Cote on 1/27/2021) (nb)

Case 1:17-cv-05833-DLC Document 308 Filed 01/27/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
NORMA KNOPF and MICHAEL KNOPF,
:
:
Plaintiffs,
:
-v:
:
FRANK M. ESPOSITO, DORSEY & WHITNEY,
:
LLP, NATHANIEL H. AKERMAN, EDWARD S.
:
FELDMAN, and MICHAEL HAYDEN SANFORD,
:
:
Defendants.
:
:
-------------------------------------- X

17cv5833(DLC)
MEMORANDUM AND
ORDER

DENISE COTE, District Judge:
On December 14, 2020, non-party Melissa Ringel invoked her
Fifth Amendment privilege against self-incrimination during her
deposition.

A little over a month later, the plaintiffs contend

Ringel has waived her Fifth Amendment privilege and should be
compelled to respond to the questions they posed to her in
December.

For the following reasons, the plaintiffs’

application is denied.
The plaintiffs have brought several related cases.

In

Knopf v. Phillips, et al., 16-cv-6601 (S.D.N.Y.) (DLC), the
Knopfs sued Michael Phillips for fraudulent conveyance in
violation of New York law.

The Knopfs alleged that Phillips

purchased real property located at 44 East 67th Street, Apt.
Penthouse C, New York, New York (“the Penthouse”) despite
knowing that the seller, Michael Sanford, had several agreements

Case 1:17-cv-05833-DLC Document 308 Filed 01/27/21 Page 2 of 4

with the Knopfs that prohibited the sale of the Penthouse.

The

plaintiffs deposed Ringel in Phillips on August 15, 2017 (“2017
Deposition”).

During the 2017 Deposition, the plaintiffs

inquired, inter alia, about a telephone conversation in which
Ringel participated on January 12, 2016 (“2016 Telephone Call”).
Ringel answered the questions.
The plaintiffs deposed Ringel in the instant action,
Esposito, on December 14, 2020 (“2020 Deposition”).

In

Esposito, the Knopfs have sued attorneys Frank Esposito,
Nathaniel Akerman, and Edward Feldman, as well as the law firm
Dorsey & Whitney, LLP, for conspiracy to violate 42 U.S.C. §
1983 to deprive the Knopfs of their constitutional right to due
process.

The § 1983 claim is based upon the Knopfs’ allegations

that Sanford hired Esposito knowing that Esposito was married to
Ringel, who worked as an attorney at the New York Supreme Court
Appellate Division.

The Knopfs allege that Esposito discussed

with Ringel a series of orders issued by the Appellate Division
related to the Penthouse.

The Knopfs further allege that, as a

result of these discussions, Ringel agreed to opine to the
defendant attorneys about the Appellate Division’s orders
regarding the Penthouse during the 2016 Telephone Call and that
the effect of the conversation was to eliminate restraints on
Sanford’s sale of the Penthouse.

In response to the plaintiffs’

questions about the 2016 Telephone Call during the 2020

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Case 1:17-cv-05833-DLC Document 308 Filed 01/27/21 Page 3 of 4

Deposition, Ringel invoked her Fifth Amendment privilege against
self-incrimination and declined to answer their questions.
The plaintiffs moved on January 19 for an Order overruling
Ringel’s objections to the deposition questions that were based
on the privilege against self-incrimination.

On January 22,

Ringel filed a letter opposing the plaintiffs’ January 19
motion.

The only dispute is whether Esposito constitutes the

same judicial proceeding as Phillips such that Ringel has waived
her privilege against self-incrimination with respect to
questions about the 2016 Telephone Call.
A court must “indulge every reasonable presumption against
finding a testimonial waiver.”
287 (2d Cir. 1981).

Klein v. Harris, 667 F.2d 274,

Among other things, a testimonial waiver

may be inferred only if the prior statements were “voluntarily
made under oath in the context of the same judicial proceeding.”
Id. at 288.

“A waiver of the privilege in one proceeding does

not affect a witness' rights in another proceeding.”

United

States v. James, 609 F.2d 36, 45 (2d Cir. 1979); see also United
States v. Miranti, 253 F.2d 135, 139-40 (2d Cir. 1958).

Even

when the statements are made in the “same” proceeding, the prior
disclosure may not constitute a waiver when “during the period
between the successive proceedings conditions might have changed
creating new grounds for apprehension . . . .”
F.2d at 140.

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Miranti, 253

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Phillips and Esposito do not constitute the same judicial
proceeding for the purpose of a testimonial waiver.

Phillips

and Esposito are separate actions alleging distinct claims
against different defendants.

Indeed, Ringel is not mentioned

in the Amended Complaint in Phillips.

Ringel is mentioned in

the Second Amended Complaint in Esposito, and her husband is
named as a defendant.

Additionally, there are “new grounds for

apprehension” for Ringel since the 2017 Deposition.
Conclusion
The plaintiffs’ January 19, 2021 motion to compel testimony
from Ringel is denied.

Dated:

New York, New York
January 27, 2021

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