Sheindlin v. Brady
ORDER granting 85 Letter Motion for Discovery; ORDER granting 81 Letter Motion: By reason of the foregoing, it is hereby ORDERED that the letter motions to quash the subpoenas issued against Ifrah and Fass (ECF No. 81) and McCourt (ECF No. 85) are GRANTED, and those three subpoenas are QUASHED. Nevertheless, if Plaintiff seeks to introduce testimony from Ifrah, Fass and/or McCourt at or before trial, Defendant may move for leave to take their depositions with respect to the testimony offered or to be offered. (Signed by Magistrate Judge Stewart D. Aaron on 6/6/2021) (Aaron, Stewart)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1:21-cv-01124 (LJL) (SDA)
OPINION AND ORDER
STEWART D. AARON, United States Magistrate Judge:
This is a defamation case brought by Plaintiff Gregory Sheindlin (“Plaintiff” or “Sheindlin”),
a New York attorney, against Defendant James Brady (“Defendant” or “Brady”), arising out of
statements Brady made about Sheindlin in the aftermath of a New York state court action in
which Sheindlin successfully represented one of Brady’s adversaries in collecting a $1.7 million
judgment against Brady (the “Enforcement Proceeding”). See Sheindlin v. Brady, No. 21-CV01124 (LJL) (SDA), 2021 WL 2075483, at *1 (S.D.N.Y. May 24, 2021).
The Court has before it (1) a letter from Plaintiff dated May 27, 2021, which the Court is
construing as a motion to quash two subpoenas issued against Phillipe Ifrah (“Ifrah”), a client of
Plaintiff’s and one of Defendant’s former adversaries in one of the lawsuits underlying the
Enforcement Proceeding (“IGS Realty I” 1), and Robert Fass (“Fass”), who was Ifrah’s counsel in
that litigation (Pl.’s Ltr. Mot., ECF No. 82); (2) a letter motion to quash filed by real estate
developer Frank H. McCourt, Jr. (“McCourt”) (FHM Ltr. Mot., ECF No. 85); (3) Defendant’s letter
oppositions to each of these letter motions to quash (Def.’s I&F Opp., ECF No. 90; Def.’s FHM
IGS Realty v. Brady, Index No. 603561/2009 (N.Y. Sup. Ct. filed Dec. 2, 2009).
Opp., ECF No. 96); (4) Plaintiff’s letter reply in further support of his motion to quash (Pl.’s Reply,
ECF No. 89); (5) McCourt’s letter reply in further support of his motion to quash, and Plaintiff’s
letter responding to Defendant’s opposition to McCourt’s motion to quash (FHM Reply, ECF No.
93; Pl.’s FHM Ltr., ECF No. 91); and (6) a letter surreply filed by Defendant in further opposition
to McCourt’s motion to quash. (Def.’s Surreply, ECF No. 97.) 2
After careful review of the record, for the reasons discussed below, the Court hereby
GRANTS both letter motions (ECF Nos. 81 & 85), and the subpoenas issued against Ifrah, Fass and
McCourt are QUASHED.
For discussion of the applicable legal standards, the Court refers the parties to its prior
Opinion and Order quashing other subpoenas issued on Defendant’s behalf. See Sheindlin, 2021
WL 2075483, at *2.
The Subpoenas To Ifrah And Fass Are Quashed
In an exercise of its discretion, the Court hereby quashes the subpoenas issued against
Ifrah and Fass since they seek testimony that is not relevant to any party’s claim or defense. 3
Defendant has effected the issuance of approximately 20 subpoenas in this case, targeting seven New
York State judges, three federal judges, three elected officials, two of Defendant’s former attorneys, a
New York Post reporter, McCourt and a second real estate developer, Ifrah and Fass. See id. By Order,
dated May 24, 2021, the Court quashed the fourteen subpoenas issued against the judges, elected officials
and reporter, and stated that it would resolve disputes regarding the remaining subpoenas if and when
they were brought before the Court. See id. at *5. This Opinion and Order relates to three such subpoenas.
Defendant argues that Plaintiff lacks standing to challenge the subpoenas issued against Ifrah and Fass.
(See Def.’s I&F Opp. at 2.) It is true that a party ordinarily lacks standing to challenge a subpoena served
upon a non-party. Here, however, it is the Court that has construed Plaintiff’s letter as a motion to quash,
and the Court has authority under Rule 26 to quash subpoenas sua sponte if they seek testimony that is
Defendant articulates the basis for his subpoenas to Ifrah and Fass as follows:
The deposition of Mr. Ifrah and his attorney Mr. Fass are needed precisely because
their testimony proves Defendant Brady’s claim is true that at the same exact time
Phillipe Ifrah hired Robert Fass to litigate that Question Number One on a June 26,
2015 jury interrogatory sheet [in IGS Realty I] was a finding that the Corporate
Tenants were being used as illegal banquet halls and not meeting halls Phillipe
Ifrah hired Gregory Sheindlin to steal over $1.7 million dollars from Brady on
September 5,2 018 by fraudulently representing “through implication” that this
same Question Number One on the June 26, 2015 Jury interrogatory sheet, was a
jury finding that the personal guarantees were enforceable.
Defendant is also being sued for defamation of character by Sheindlin for saying
on line that Sheindlin was also hired by Ifrah to fraudulently say that the Jury’s
answers to Questions Number Two and Three on the Jury interrogatory sheet
were the Jury’s rejection of Brady’s affirmative defenses and counterclaims.
(Def.’s I&F Opp. at 1-2 (grammatical and typographical errors in original).) While Defendant’s
prose is not a model of clarity, his position appears to boil down to the following: the testimony
of these two witnesses could prove that Plaintiff fraudulently represented the substance and/or
legal significance of questions 1-3 on a jury interrogatory sheet from the IGS Reality I litigation.
The IGS Realty I jury resolved the factual questions before it and rendered its verdict by
responding to Jury Interrogatories. The substance and legal significance of a jury verdict is a
matter of legal interpretation. There is no personal knowledge that Ifrah or Fass possibly could
possess that would be relevant to this Court’s interpretation of the IGS Realty I jury’s verdict.
Thus, these subpoenas are QUASHED. 4
not relevant to any party’s claim or defense. See Fed. R. Civ. P. 26(b)(2)(C) (authorizing the Court sua
sponte to limit discovery that “is outside the scope permitted by Rule 26(b)(1)”).
As set forth in the Conclusion of this Opinion and Order, if Plaintiff seeks to use testimony of Ifrah and/or
Fass in this case at or prior to trial, Defendant may move for leave to take their depositions with respect
to the testimony offered or to be offered. (See Conclusion, infra.)
The Subpoena To McCourt Is Quashed
In an exercise of its discretion, the Court hereby quashes the subpoena issued against
McCourt since it seeks testimony that is not relevant to any party’s claim or defense.
Defendant articulates two bases for his subpoena to McCourt. The first is as follows:
The first precise reason testimony of Frank McCourt is relevant to the present case
is because Mr. Sheindlin and his attorney Mr. Sussman have made clear during
discovery on May 4,2021 that they plan on discussing the air rights litigations at
trial. Since the topic of the air rights litigations are being used by Sheindlin and his
attorney against Brady that means Brady must be given the right in his defense to
prove that the defamatory statements made by certain judges against Brady in
the air rights litigations were false and made at the request of the attorneys for
billionaire developer Frank McCourt and developer Jeffery Katz of Sherwood
(Def.’s FHM Opp. at 1-2 (grammatical and typographical errors in original).) The Court rejects this
First, as a general matter, the “air rights litigation” 5 is not directly relevant to Plaintiff’s
claims in this case, which arise from Defendant’s statements about Plaintiff’s purported theft of
certain funds in connection the separate IGS Realty I litigation. While McCourt’s personal
knowledge would be relevant to the substance of the air rights litigation, there is no suggestion
that Plaintiff intends to put any such substance at issue in this case. 6
Rather, Plaintiff has stated that “the air rights litigation is not relevant to [this] case except
to show the malicious pattern of conduct by [D]efendant.” (Pl.’s FHM Ltr. at 1.) The “pattern” of
Defendant’s litigation conduct may be ascertained from public information: the number of
Brady v. 450 W. 31st St. Owners Corp., Index No. 157779/2013 (N.Y. Sup. Ct. filed Nov. 23, 2013).
As set forth in the Conclusion of this Opinion and Order, if Plaintiff seeks to use testimony of McCourt in
this case at or prior to trial, Defendant may move for leave to take McCourt’s deposition with respect to
the testimony offered or to be offered. (See Conclusion, infra.)
lawsuits Defendant has filed, the persons against whom he brought those lawsuits, the public
record of his participation in those lawsuits and the outcome of those lawsuits. No personal
knowledge from McCourt is needed to illuminate this public information.
Indeed, Defendant has not plausibly identified any unique personal knowledge possessed
by McCourt that is relevant to Defendant’s pattern of litigation conduct. Among other things,
McCourt was Defendant’s litigation adversary, and Defendant offers no plausible basis to infer
that McCourt would provide testimony that would be helpful to him. Moreover, even assuming
arguendo that McCourt did possess personal knowledge somehow relevant to Defendant’s
“malicious pattern” of litigation conduct, the Court finds that, in light of the substantial public
record of Defendant’s litigation history, discovery of McCourt’s knowledge via subpoena would
not be proportional to the needs of the case, considering, in particular, “the importance of the
[proposed] discovery in resolving the issues [at stake in the action], and whether the burden . . .
of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 7
Defendant does assert—incredibly—that McCourt would testify that various judges who
have ruled against Defendant essentially were bought off by McCourt and another real estate
developer. (See Def.’s FHM Opp. at 1-2, 5-6; see also id. at 3.) This utterly unsubstantiated attack
on the integrity of multiple state and federal jurists is out of bounds, even for a pro se litigant.
Defendant is admonished that, should he continue to make baseless allegations against officers
of the court, sanctions may be imposed against him. See Malley v. New York City Bd. of Educ., 207
F. Supp. 2d 256, 259 (S.D.N.Y. 2002) (“The fact that a litigant appears pro se does not shield him
Further, the Court declines to endorse any principle under which a plaintiff’s allegation that a defendant
has engaged in a pattern of vexatious litigation would subject any litigant unfortunate enough to have
been embroiled in any of those prior litigations to being dragged into the new litigation via subpoena.
from Rule 11 sanctions because ‘one acting pro se has no license to harass others, clog the judicial
machinery with meritless litigation, and abuse already overloaded court dockets.’”). In the
meantime, facially absurd allegations of judicial bribery, lacking any shred of substantiation to
push them out of the realm of fantasy, cannot serve as the basis for subjecting an otherwise
irrelevant nonparty to the burden of a subpoena.
As a second asserted basis for his subpoena to McCourt, Defendant argues that McCourt’s
testimony is relevant to Defendant’s counterclaims. 8 On June 1, 2021—the last day of
discovery—Defendant filed an Answer to Plaintiff’s Complaint, with Counterclaims. 9 (See Ans. &
Counterclaims, ECF No. 92.) His counterclaims arise from an article published in the New York
Post on April 3, 2021. (See, e.g., id. ¶ 34.) Defendant alleges (1) that the article contains several
statements defamatory of him; and (2) that Plaintiff (and his counsel) “collu[ded]” and “acted [i]n
concert” with the “supposed” author of the article, Kathianne Boniello, in a “coordinated
scheme” to defame Defendant. (Id. ¶¶ 34, 48, 60, 70.) Defendant purports to explain the
relevance of McCourt’s testimony to his counterclaims, as follows:
[T]he deposition testimony of Frank McCourt will prove that the comments made
by New York Post reporter Boniello, Gregory Sheindlin , and his attorney Robert
Sussman in the April 3,2021 News Story were defamatory per se
The April 3, 2021 New York Post article makes the following five false defamatory
claims about Brady that Frank Mccourt and his attorneys at Greenberg Traurig
know from their personal knowledge are totally false and defamatory.
1) The article says “Brady is a gadfly who clogs courts with ‘vexatious’ claims”.
Defendant’s letter opposition purports to assert both a “[s]econd” and a “[t]hird” basis for the subpoena
to Frank McCourt, but these appear to be entirely redundant of one another. (See Def.’s FHM Opp. at 2.)
Defendant filed his belated Answer only after the Court ordered him to do so. (See 5/25/21 Order, ECF
2) The article says “James H. Brady, has filed so many repetitive lawsuits he’s been
ordered to stop and sanctioned in both state and federal courts.”
3) The article says “Court records show he’s accused a “dizzying array of
defendants” — judges, the Manhattan District Attorney, federal prosecutors, and
lawyers who have either repped him or beaten him in court — of corruption and
4) The article says “Despite Brady’s full and fair opportunity to litigate his legal
rights at every level of the New York State judicial system, he would commence a
litany of vexatious and harassing legal actions where he impugned the motivations
and integrity of anyone involved with the adverse state court decisions,” Sheindlin
said in his lawsuit.
5) The article says “Mr. Brady lost and continues to act as if our system of justice
applies to everyone but him,” said Sheindlin’s lawyer, Michael Sussman.
(Def.’s FHM Opp. at 1-2 (grammatical and typographical errors in original).) The Court rejects this
purported basis as well.
At the outset, the Court notes that Plaintiff’s deadline to answer or otherwise respond to
Defendant’s counterclaims has not yet passed, and therefore the timeliness and legal sufficiency
of such counterclaims is not yet determined. Nevertheless, even assuming discovery were
permitted to go forward with respect to Defendant’s counterclaims, the Court finds Defendant is
not entitled to subpoena McCourt based on them.
Defendant asserts that McCourt’s testimony could demonstrate the falsity of five
numbered claims contained in an April 3, 2021 New York Post article. Yet those five claims are a
combination of opinion—e.g., that Defendant is a “gadfly”—and statements of objective,
verifiable fact—e.g., that Defendant has “been ordered to stop [filing lawsuits] and sanctioned in
both state and federal courts”; that he has accused “judges, the Manhattan District Attorney,
federal prosecutors, and lawyers who have either repped him or beaten him in court  of
corruption and fraud”; that “[Plaintiff] said” certain things “in his lawsuit” (i.e., in his Complaint);
or that Plaintiff’s counsel “said” certain other things in other court filings. In no case would any
personal knowledge McCourt plausibly possessed shed light on whether these statements were
true or false. 10 In the alternative, given the substantial public record of Defendant’s litigation
history, the Court again finds that, to the extent McCourt somehow were to possess any
knowledge relevant to these issues, discovery of this knowledge via subpoena would not be
proportional to the needs of the case.
Accordingly, because neither basis asserted by Defendant for the subpoena against
McCourt withstands scrutiny, that subpoena is QUASHED.
By reason of the foregoing, it is hereby ORDERED that the letter motions to quash the
subpoenas issued against Ifrah and Fass (ECF No. 81) and McCourt (ECF No. 85) are GRANTED,
and those three subpoenas are QUASHED. Nevertheless, if Plaintiff seeks to introduce testimony
from Ifrah, Fass and/or McCourt at or before trial, Defendant may move for leave to take their
depositions with respect to the testimony offered or to be offered.
New York, New York
June 6, 2021
STEWART D. AARON
United States Magistrate Judge
The Court again declines to credit Defendant’s absurd and entirely unsubstantiated claim that “the real
reason” these orders issued was not the reasons stated in the orders, but “because  two billionaires and
their politically connected attorneys” had the judges in their pocket. (See Def.’s FHM Opp. at 3.)
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