PURSUIT CREDIT SPECIAL OPPORTUNITY FUND v. PLC (2024)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered October 4, 2023, which granted plaintiff's motion for a protective order pursuant to CPLR 3103 and awarded it attorneys’ fees and costs, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered November 30, 2023, which, insofar as appealed from, denied defendants’ motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

The motion court did not abuse its discretion in sanctioning defendants and their counsel for accessing and downloading folders from a live Dropbox link that, unbeknownst to plaintiff, provided direct access to its corporate files (see Alston v. New York City Tr. Auth., 23 A.D.3d 239, 803 N.Y.S.2d 427 [1st Dept. 2005];  see also Hanover Ins. Co. v. Ceriello Elec., 226 A.D.2d 585, 586, 641 N.Y.S.2d 363 [2d Dept. 1996]).  CPLR 3103 confers broad discretion upon a court to fashion appropriate remedies to prevent the abuse of disclosure devices (see Lipin v. Bender, 84 N.Y.2d 562, 571–572, 620 N.Y.S.2d 744, 644 N.E.2d 1300 [1994]).  The court here correctly determined that counsel was required to notify plaintiff that it had obtained the Dropbox link inadvertently, as the link contained folders that counsel knew or should have known were confidential or privileged (see id.;  see also Rules of Professional Conduct [22 NYCRR 1200.0] rule 4.4[b]).  Counsel's refusal to sequester the inadvertently disclosed files led to plaintiff having to file the underlying motion and incur substantial legal fees.

Defendants’ challenges to the amount in legal fees and costs awarded are unpreserved (see Blue Ribbon Bags, LLC v. LBF Travel, Inc., 222 A.D.3d 576, 577, 203 N.Y.S.3d 9 [1st Dept. 2023]).  In any event, plaintiff's submission of an attorney affirmation, detailing the hours reasonably expended, its counsel's professional experience, and the prevailing hourly rate for similar work in the community, was sufficient for the court to award the amount sought (see Tokayer v. Kosher Sports Inc., 178 A.D.3d 641, 641, 112 N.Y.S.3d 501 [1st Dept. 2019])