Falcon Rappaport & Berkman LLP Wins Appeal from Fee-Shifting Order in New York State Court Discovery Dispute

Oct 21, 2020
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Falcon Rappaport & Berkman LLP Wins Appeal from Fee-Shifting Order in New York State Court Discovery Dispute

By: Paul M. O'Brien, Esq.

Falcon Rappaport & Berkman LLP (“FRB”) successfully appealed from a Queens Supreme Court Order which directed FRB’s client to pay its adversary’s costs supposedly incurred in producing documents for discovery. In the underlying action, FRB represented a plaintiff who brought an action for malicious prosecution and tortious interference. During discovery, the defendant failed to respond to plaintiff’s discovery demands, which itself is not particularly uncommon. Plaintiff moved to compel disclosure and the Court granted plaintiff’s motion to compel.

However, what was unusual is that even though the litigant failed to comply with prior court orders, and himself occasioned unnecessary motion practice and months of delay, the court ultimately directed plaintiff to reimburse the defendant for his storage and transportation fees incurred in his eventual discovery disclosures, which were only produced after Court order.

On appeal, FRB successfully argued that the Supreme Court erred in directing plaintiff to reimburse defendant’s costs of producing documents for inspection since there was no basis for fee shifting and there was no evidence supporting the costs defendant allegedly incurred.

The general rule, consistent with the Federal Rules of Civil Procedure, is that the producing party should bear the costs of complying with a discovery request. U.S. Bank, N.A. v. GreenPoint Mtge. Funding, Inc., 94 A.D.3d 58 (1st Dep’t 2012). The cost of producing documents for inspection should be shifted to the requesting party only in extraordinary or unusual circumstances. Rosado v. Mercedes-Benz of North America, Inc., 103 A.D.2d 395, 398 (2d Dep’t 1984).

FRB successfully advanced the policy argument that a court cannot direct a party to reimburse an unsubstantiated cost to a litigant who avoided their disclosure obligations, and obtained reversal of the lower Court’s order on appeal.

The Decision and Order of the Supreme Court of the State of New York Appellate Division: Second Judicial Department is located here: Sapienza v Notaro - Appellate Division Order 10-7-2020.


FRB Partner Paul M. O’Brien, Esq. represented the Plaintiff/Appellant on appeal and in the continued prosecution of the Supreme Court litigation. Contact us to speak to one of our litigators if you are seeking a New York appellate attorney or New York trial attorney as to how we can help you with your New York litigation or appeal.

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.

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