Isaly v. Garde

1

2023 NY Slip Op 34631(U)

SAMUEL D. ISALY, Plaintiff, v. DAMIAN GARDE, DELILAH BURKE, Defendants

Index No. 160699/2018, Motion Seq. No. 006

Supreme Court, New York County

June 27, 2023

Unpublished Opinion

DECISION + ORDER ON MOTION

HON JAMES D'AUGUSTE JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 006) 147, 148, 149, 150, 153, 154, 155, 156, 157, 158 were read on this motion to/for VACATE STAY_.

By decision and order dated December 6, 2022, and published at 2022 NY Slip Op 34108(U) (the "December Decision") the Court, among other things, granted defendants protective orders and stayed this action pending the Court of Appeals' determination of an appeal in Gottwald v. Sebert, another action considering recent amendments to the Anti-SLAPP Law (2020 N.Y. Laws Ch 250). December Decision, at 2.^[1] In this motion, plaintiff moves to vacate the stay and protective orders so that plaintiff can pursue discovery in relation to his claims against defendant Burke, an identified source in a news article alleging that "(b]iotech hedge fund titan Sam Isaly harassed, demeaned women for years," which plaintiff alleges was defamatory. (Amended Complaint, Ex. A, at 1). After the motion was filed, the Appellate Division, First Department affirmed the December Decision, and the Court of Appeals has interpreted the application of the Anti-SLAPP Law to apply to actions pending at the time of the statute's enactment in Gottwald. Isaly v. Garde, 2023 NY Slip Op 02847 (1st Dept. May 30, 2023); and Gottwald v. Sebert, 2023 NY Slip Op 03183 (Jun. 13, 2023). Specifically, the Court held that the continuation of a potential SLAPP claim after the November 2020 enactment of Chapter 250 (no matter how much earlier the action was commenced) was subject to the enhanced standards of the Anti-SLAPP Law. Gottwald, at *4-5. These appellate decisions render much of the instant motion moot. For this reason, as well as the reasons detailed below, the instant motion is denied.

Although plaintiff styles the instant motion as seeking to vacate a stay, the gravamen of plaintiffs motion is that discovery should be permitted in this action because the Court erred in not denying defendants' motions to dismiss this action. (Mem. of Law in Supp., at 2; and Mem. of Law in Reply, at 2).^[2] In addition to disagreeing with the Court's decisions dismissing most of the claims in this action, plaintiff asserts that the Court did not provide him an opportunity to be heard in opposition to a stay prior to granting it, and that the Court did not properly consider: 1) the Court's authority and discretion to stay this action pending the Court of Appeals' determination of Gottwald', 2) plaintiffs age and health; 3) that evidence might be lost or destroyed during a stay; 4) that a stay is not necessary to avoid prejudice. Even putting aside the First Department's affirmance in this action and the Court of Appeals' decision in Gottwald, plaintiffs position is not only unavailing, but largely framed on inaccurate assertions of fact and law, which the Court addresses below.

Plaintiff Was Expressly Heard at the Court's Invitation on the Potential Issuance of a Stay

The Court has previously noted that it is "mindful of one's natural sense of frustration and helplessness at having a negative article written that plaintiff believes is inaccurate." December Decision, at *5. That said, "[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams, Argument in Defense of the Soldiers in the Boston Massacre Trials (Dec. 1770), as quoted by Hussein v. State of New York, 19 N.Y.3d 899, 912 n. 4 (2012) (Read, J. dissenting). The Court "relies upon the informed arguments of litigants before the Court in rendering its decisions," as a core element of the American legal system, and "should not have to pour over an extensive record as an alternative to relying on counsel's representations."^[3] Gjonbalaj Mgmt. LLC v. Little, 2022 NY Slip Op 34487(U), *3 (Civ. Ct., Bronx Co. 2022) (vacating judgment and dismissing action due to plaintiffs improper litigation tactics) (citations omitted). See also, Greenlaw v. United States, 554 U.S. 237, 243-244. "Here, the facts really do get in the way," of plaintiffs argument, and plaintiffs assertion that the Court stayed this action without giving him an opportunity to be heard in opposition is without any merit. Inti. Genomics Consortium v. United States, 104 Fed.Cl. 669, 674 (Ct. Fed.Cl. 2012).

On November 7, 2022, the Court, via a court attorney, contacted both sides "to inquire whether the parties have a position about the possibility of the Court issuing an order staying or holding the instant matter in abeyance pending the determination of Gottwald v Sebert in the Court of Appeals." (Nov. 7, 2022, 3:55 p.m. Brian Krist Email to Counsel, at 1). Plaintiffs counsel responded thirty-nine minutes later with a 588-word written response stating that "[o]n behalf of our client Mr. Isaly, we strongly oppose the staying of the instant motion pending the Court of Appeals' decision in the Gottwald case." (Nov. 7, 2022, Email by Alan S. Lewis, at 1) (emphasis in original). Defendants responded later that evening, at which point the court attorney thanked counsel for their "prompt and fulsome responses" regarding a potential stay. (Nov. 7, 2022 Email by Jonathan M. Albano, at 1; and Nov. 7, 2022, 10:00 p.m. Brian Krist Email to Counsel, at 1). The following morning plaintiffs counsel sent a 467-word reply to defendants' supplemental submission. (Nov. 8, 2022, Email by Alan S. Lewis). Further, plaintiffs counsel sent a third written submission containing a 247-word sur-reply opposing a stay and attaching a copy of plaintiffs 37-page brief appealing the July Decision. (Dec. 5, 2022, Email by Alan S. Lewis).^[4] All told, plaintiff submitted, and the Court considered, over 1,000 words of written argument (supplemented by a nearly 40-page brief attached to them) expressly opposing a stay.

The Court specifically referenced the parties' supplemental submissions addressing a possible stay, stating:

After reviewing the parties' papers, this Court sought the parties' positions regarding a possible stay of this action pending the Court of Appeals' determination of Gottwald, and both parties responded with written supplemental arguments to each other's supplemental arguments. Plaintiff opposes a stay, while defendants consent to a stay.

December Decision, at *2.^[5] Notwithstanding the Court having invited and heard plaintiffs arguments, which the Court specifically noted in the December Decision, plaintiff now argues that the stay "has not yet been the subject of argument." and was issued "without first affording Isaly any opportunity to oppose it." (Mem. of Law in Supp., at 1 and 4). In reply, plaintiff maintained that position despite Burke referencing plaintiffs supplemental opposition to the stay, stating that "[t]he complete stay and protective order as ordered was not sought by either Burke or Garde and, therefore, had not yet been the subject of argument until Isaly filed this motion." (Mem. of Law in Reply, at 6; and Aff. in Opp., at 4).

Counsel's argument that plaintiff had not been given the opportunity to be heard prior to the Court staying this action when the same counsel (1) was specifically invited to submit written opposition; (2) did so; and (3) then took it upon himself to offer two more written submissions and an attached brief in further opposition to a stay, is irreconcilable with his duty to the Court and the other participants in this action. See, Gjonbalaj Mgmt., supra. That the Court took supplemental letter briefing from the parties (especially considering the depth of plaintiff s letter briefing) rather than more formal briefing is irrelevant. See, e.g, Kaufman v. Sirius XM Radio, Inc., 41 Mise. 3d 1204(A), *6 n. 7 (Sup. Ct., New York Co. 2013) (rejecting plaintiffs argument "that there is some significance in the fact that the parties, as directed by the District Court, submitted letterbriefs instead of full length memoranda of law," as "disingenuous," especially where "the letterbriefs were quite substantive"). Seeking and considering supplemental letter-briefing after a matter has been submitted as fully briefed is neither new nor novel in New York courts. See, e.g, Granite Slate Ins. Co. v. Aim Constr. of NY, Inc., 68 Mise. 3d 427, 431 (Sup. Ct., New York Co. 2020); and Cortlandt Apts., LLC v. Simbali Design Architecture, PLLC, 2020 NY Slip Op 30842(U), *2 (Sup. Ct., Cortlandt Co. 2020) (discussing letter briefing directed by courts). That the parties chose not to file their supplemental arguments to NYSCEF (as they were provided to the Court by email) does not affect their existence or substance and, to the extent the parties could have or should have subsequently electronically filed copies in NYSCEF, the parties have waived that by not timely raising the issue. See, Kilgore v. City of New York, 76 Mise. 3d 1228(A), *5 n. 9 (Civ. Ct., Bronx Co. 2022) (movant's failure to object to defective affidavits constituted waiver) (citations omitted). To illustrate the contrast more fully between plaintiffs arguments and the record, the Court reprints the parties email correspondence in full as an endnote/addendum.'

The Court's Authority and Discretion to Stay This Action

In seeking to vacate the stay, plaintiff argues that the Court lacked authority and discretion to stay this action pending the Court of Appeals' determination of Gottwald. (Mem. of Law in Supp., at 6). To the extent the First Department's affirmance of the December Decision does not render the matter academic, plaintiff is wrong....