Opinion
12075N Index No. 653953/18 Case No. 2019-04423
10-15-2020
ROSENBERG FELDMAN SMITH, LLP, Plaintiff–Respondent, v. NINETY–FIVE MADISON CO., L.P., Defendant–Appellant. Ninety–Five Madison Co., L.P., Counterclaim–Plaintiff–Appellant, v. Rosenberg Feldman Smith, LLP, et al., Counterclaim- Defendants–Respondents.
Verrill Dana LLP, White Plains (Robert Laplaca of counsel), for appellant. Rosenberg Feldman Smith, LLP, Tarrytown (Michael H. Smith of counsel), for respondents.
Verrill Dana LLP, White Plains (Robert Laplaca of counsel), for appellant.
Rosenberg Feldman Smith, LLP, Tarrytown (Michael H. Smith of counsel), for respondents.
Renwick, J.P., Webber, Gesmer, Gonza´lez, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered August 6, 2019, which, insofar as appealed from, granted plaintiff's motion for a protective order to the extent of requiring defendant to post a bond by September 18, 2019, and ordering that defendant's document request would be waived if it did not post the bond by the deadline, unanimously affirmed, without costs.
The court providently exercised its discretion in requiring defendant (plaintiff's former client) to give security before ordering plaintiff to turn over documents on which it had asserted a retaining lien (see e.g. Leviten v. Sandbank, 291 N.Y. 352, 358, 52 N.E.2d 898 [1943] ; Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 A.D.2d 183, 187 n *, 754 N.Y.S.2d 220 [1st Dept. 2002] ; Pryor Cashman LLP v. U.S. Coal Corp. , 2012 WL 10008067 [Sup. Ct., N.Y. County 2012], on reargument 2012 N.Y. Slip Op. 33365[U], 2012 WL 10007035 ). Defendant's reliance upon Franklin, Weinrib, Rudell & Vassallo v. Stellato, 240 A.D.2d 301, 658 N.Y.S.2d 622 (1st Dept. 1997) is not persuasive as there is no indication in that decision that the law firm requested that the defendant post a bond.
Given that we are not ordering plaintiff to produce documents, defendant's request to extend discovery deadlines is academic. In any event, "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously ... [D]isregard of deadlines should not and will not be tolerated" ( Gibbs v. St. Barnabas Hosp. , 16 N.Y.3d 74, 83, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] [internal quotation marks omitted] ). Defendant did not post a bond by September 18, 2019, nor did it appeal and seek a stay before then; instead, it waited until November 4, 2019 to appeal and later that month to move for a stay pending appeal.
In any event, we note that the court's order vacating the discovery demand if defendant does not comply with the deadline for posting security does not in any way vitiate defendant's ownership and possessory interest in its case file held by plaintiff. Indeed, upon payment of the retaining lien at any time plaintiff is entitled to its case file (see Matter of Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 37, 666 N.Y.S.2d 985, 689 N.E.2d 879 [1997] ).