GOTTWALD v. GERAGOS (2020)

The following e-filed documents, listed by NYSCEF document number (Motion 009) 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 539, 544, 545, 546, 547, 548, 549, 550, 551, 552 were read on this motion for REARGUMENT/RECONSIDERATION

In this defamation action, non-party Kesha Rose Sebert (Sebert) moves for leave to renew and/or reargue a portion of her earlier motion for a protective order, and plaintiff Lukasz Gottwald, p/k/a Dr. Luke (Gottwald), cross-moves for an order to strike a portion of Sebert's memorandum of law (together, motion sequence number 009). For the following reasons, the motion and the cross motion are both denied.

BACKGROUND

The court has discussed the facts of this case at length in several earlier decisions and will not repeat them in detail here. As background, it is helpful to note that this matter follows a separate action that Gottwald commenced against Sebert in this court for breach of contract (Gottwald v. Sebert, Index No. 653118/14, Schecter, J. [the first action] ). This action, however, concerns Gottwald's defamation claims against Sebert's attorney, defendant Mark Geragos (Geragos), and his law firm, Geragos & Geragos, PC.

Earlier in this action, Gottwald and Geragos filed competing motions to compel discovery (motion sequence numbers 005 & 006), which the court disposed of in a decision dated October 17, 2018.¹ The Appellate Division, First Department, upheld the court's ruling in a decision that reviewed discovery challenges in both the first action and this one. Gottwald v. Sebert, 172 AD3d 445 (1st Dept 2019).² Sebert subsequently filed a non-party motion for an order to modify this court's October 17, 2018 decision (motion sequence number 008) which the court partially granted in another decision dated May 21, 2020. See notice of motion (motion sequence number 009), exhibit 26. The parties then executed a stipulation on July 13, 2020 which set forth the specifics of their respective disclosure responsibilities, but reserved their respective rights to challenge the court's ruling.³ Sebert now moves for leave to renew and/or reargue a portion of the court's May 21, 2020 decision (motion sequence number 009). Sebert had submitted an order to show cause seeking to stay enforcement of the court's May 21, 2020 decision (motion sequence number 010), but via stipulation dated July 9, 2020, she withdrew that application.⁴ Sebert had also moved for an order to seal certain of the documents that she had been directed to disclose (motion sequence number 011); and by a decision dated July 29, 2020, the court granted that motion.⁵

DISCUSSION

Sebert's motion now seeks leave to both renew and reargue the court's May 21, 2020 decision. CPLR 2221 requires a movant to make different showings in support of an application to renew than those required on an application to reargue. This decision will address Sebert's arguments in the order she presents them.

The first portion of Sebert's motion seeks leave to reargue pursuant to CPLR 2221 (d). That portion of the statute provides as follows:

“A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.”

CPLR 2221 (d) (emphasis added). The First Department has long held that motions to reargue may be only granted upon a showing “ ‘that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.’ ” William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dept 1992), quoting Schneider v. Solowey, 141 AD2d 813 (2d Dept 1988). The First Department observes that “a motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.’ ” Matter of Anthony J. Carter, DDS, P.C. v. Carter, 81 AD3d 819, 820 (1st Dept 2011), quoting McGill v. Goldman, 261 AD2d 593, 594 (2d Dept 1999). Here, Sebert's motion seeks leave to reargue on three grounds.

First, Sebert asserts that “this court erroneously held that it lacks authority to modify the October 18 discovery order's production requirement.” See non-party's mem of law at 9-12. She particularly asserts that “the First Department's affirmance does not preclude this Court from exercising its otherwise-applicable powers to modify the October 18 Discovery Order,” and that “this Court has the power to modify that Order.” Id. Sebert then cites a quantity of case law which holds that a trial court has the authority to modify its previous rulings both “inherently” and pursuant to CLPR 3103 and 2221. Id. Sebert's assertion here are irrelevant. The court's May 21, 2020 decision found that:

“The effect of [the First Department's] ruling [in Gottwald v. Sebert, 172 AD3d at 445] was to deny the parties' appeal and to affirm [this] court's ‘relevance ruling.’ As a result, this decision will not consider any of the arguments that the parties have raised herein which seek to modify the ‘relevance ruling’ portion of the October 18, 2018 order.”

See notice of motion (motion sequence number 009), exhibit 26. This court did not find that the First Department's 2019 affirmation of its own October 18, 2018 ruling curtailed or diminished its authority to modify that order. The May 21, 2020 decision instead stated that the court would not consider Sebert's arguments to modify that order, even though it has the power to do so. However, the court did not “misapprehend” the law that governs its ability to modify prior orders. Therefore, the court rejects Sebert's first argument.

Next, Sebert asserts that “reargument is warranted because the court misapprehended the public availability of all purportedly needed evidence.” See non-party's mem of law at 12-16. She then states that “the ‘Sebert litigation docket’ confirms the necessary evidence is public,” and refers to certain items of evidence that are allegedly part of “the Sebert litigation docket” [i.e., the first action, which is still pending before Justice Schecter] by Bates Stamp numbers, rather than simply identifying those items of evidence. Id. However, the Bates Stamp numbers on the exhibits that are annexed to Sebert's motion do not correspond to any of the Bates Stamp ranges that Sebert's counsel cites in her memorandum of law. This discrepancy makes it impossible to identify which confidential evidence, if any, may have been unsealed and/or made public in the first action. As a result, it is impossible to credit counsel's argument that any confidential evidence was improperly unsealed or made public to date. This is especially so in view of the order signed by the court on July 29, 2020, which granted Sebert's motion to seal all of her confidential evidence in this action (motion sequence number 011).⁶ Most notably, this court's May 21, 2020 decision found that, in the first action, “Justice Schecter entered five sealing orders on November 8, 2018 (two of which affected the subject evidence), but not any subsequent orders to either vacate or modify those rulings.” See notice of motion (motion sequence number 009), exhibit 26. Sebert's current motion still fails to present evidence that Justice Schecter modified or vacated any of those sealing orders. Therefore, counsel's contention that this court misapprehended relevant facts concerning the “public availability” of confidential material is unsupported and belied by her own failure of proof. Therefore, the court rejects Sebert's second argument.

Sebert presents her final argument in two parts. The first asserts that “reargument is warranted because the court overlooked Kesha's privilege argument.” See non-party's mem of law at 16-18. Gottwald responds that “the Court did not overlook the privilege issues as Sebert contends, but rather rejected Sebert's arguments and ordered that the documents remain confidential in this litigation.” See plaintiff's mem of law at 8-9. Gottwald is correct. The final paragraph of the court's May 21, 2020 decision plainly stated as follows:

“The court admonishes counsel not to include objections based on other grounds such as admissibility. The October 18, 2018 order specifically noted that ‘the parties may wish to explicitly reserve their rights to object to the admissibility of such evidence at trial, as is their right.’ The court's objective is to complete the discovery phase of this action as soon as possible, in view of the fact that that process has already been unduly attenuated.”

See notice of motion (motion sequence number 009), exhibit 26 at 13. The decision permitted the parties to preserve their arguments to the admissibility of evidence on such grounds as “privilege” until a later point in this litigation. It did not “ignore” the argument, as Sebert contends. Therefore, the court rejects Sebert's first assertion and finds that reargument is not warranted.

The second half of Sebert's final argument asserts that “renewal is warranted because recent case law makes clear Dr. Luke cannot lawfully produce Kesha's medical records.” See non-party's mem of law at 19-20. This argument requests leave to renew Sebert's previous application for a protective order pursuant to CPLR 2221 (e), which provides as follows:

“A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.”

CPLR 2221 (e) (emphasis added). The First Department has long held that motions to renew must be based on “material facts which, although extant at the time of the original motion, were not then known to the party seeking renewal and, consequently, were not placed before the court.” See Matter of Weinberg, 132 AD2d 190, 209-210 (1st Dept 1987), citing Foley v. Roche, 68 AD2d 558, 568 (1st Dept 1979). It has clearly stated that “[r]enewal is not available as a ‘second chance’ for parties who have not exercised due diligence in making their first factual presentation.” Chelsea Piers Mgt. v. Forest Elec. Corp., 281 AD2d 252, 252 (1st Dept 2001), citing Rubinstein v. Goldman, 225 AD2d 328 (1st Dept 1996). Here, Sebert's argument is not premised on “new facts,” but on a purported change in the law.

A supervening change in the law may support a motion for leave to reargue pursuant to CPLR 2221 (d), but it is not a ground on which to seek leave to renew pursuant to CPLR 2221 (e). Therefore, Sebert's argument is improper. Further, the case which Sebert cited to support that argument, DeLeon v. Nassau Health Care Corp. (178 AD3d 897 [2d Dept 2019]), does not represent a supervening change in any relevant law. DeLeon was simply a ruling on the privilege created by the doctor/patient relationship. As was just discussed, this court has not yet addressed issues of privilege. Further, the Second Department issued the DeLeon decision on December 18, 2019, well before this court issued its May 21, 2020 decision. Therefore, it cannot be considered “new;” and it was therefore incumbent on Sebert to have cited it in her prior motions, had she chosen to rely on it. Therefore, the court rejects Sebert's second assertion, and concludes that renewal is not warranted. Accordingly, the court finds that Sebert's motion for leave to renew and/or reargue should be denied as meritless.

Gottwald's cross motion seeks “an order to strike the portions of non-party ․ Sebert's Memorandum of Law ․ that were filed ․ under seal with the court, but which [Sebert] improperly failed to serve upon Plaintiff.” See notice of cross motion (motion sequence number 009). Gottwald's supporting memorandum devotes only one paragraph to this request, and does not cite any legal precedent for granting it. See plaintiff's mem of law at 10. Sebert's reply papers explain that she filed the disputed portion of her memorandum in camera. See non-party's reply mem at 10-12. The court confirms the accuracy of Sebert's statement, and also notes that Gottwald's request is rendered moot by the court's denial of Sebert's current motion. Therefore, the court rejects Gottwald's argument, and finds that Gottwald's cross motion should be denied.

DECISION

ACCORDINGLY, for the foregoing reasons, it is hereby

ORDERED that the motion, pursuant to CPLR 2221, by non-party Kesha Rose Sebert (motion sequence number 009) is denied; and it is further

ORDERED that the cross motion by plaintiff Lukasz Gottwald, p/k/a Dr. Luke (motion sequence number 009) is denied.

FOOTNOTES

1.   The court notes that Sebert's motion failed to include a copy of the October 17, 2018 decision (which disposed of motion sequence numbers 005 & 006), or copies of other rulings and exhibits in both this action and the first action, despite devoting considerable argument to how those rulings, and that evidence, should be interpreted. These omissions were not helpful. Given the well developed records in both this action and the first action, special care ought to have been taken to avoid such obvious omissions. In Sebert's memorandum, her counsel further opted to refer to many of her motion's annexed exhibits by Bates Stamp numbers rather than simply identifying them. However, the Bates Stamp numbers on the exhibits do not correspond to the documents discussed in the memorandum. This also was unhelpful. To the extent that counsel acted through inadvertence, the court cautions counsel to be more diligent in preparing future submissions.

2.   See n 1. No copy of this decision was presented.

3.   See n 1. No copy of this stipulation was presented.

4.   See n 1. No copy of this stipulation was presented.

5.   See n 1. No copy of this decision was presented.

6.   See n 5. As observed earlier, Sebert never presented a copy of this decision, or acknowledged its effect.

Robert R. Reed, J.