FILED: WESTCHESTER COUNTY CLERK 06/25/2015 10:10 AM
`NYSCEF DOC. NO. 69
`RECEIVED NYSCEF: 06/25/2015
`
`INDEX NO. 54904/2015
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`----------------------------------------- x
`DAVID BRUCE MCMAHAN,
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`Plaintiff,
`
`-against-
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`LAW OFFICE OF YONATAN S. LEVORITZ, P.C.
`AND ELENA MCMAHAN,
`
`Defendants.
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`-----------------------------------------x
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`Index No. 54904-2015
`
`AFFIRMATION OF
`NOAH NUNBERG
`IN SUPPORT OF
`MOTION FORA
`PROTECTIVE ORDER,
`TO DISQUALIFY & STAY
`DISCOVERY
`
`NOAH NUNBERG, an attorney duly admitted to practice law in the Courts of the State
`
`of New York, states the following under penalty of perjury:
`
`1.
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`I am an a partner in the law firm of L' Abbate, Balkan, Colavita & Contini, L.L.P.,
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`counsel for the Defendant, Law Office of Yonatan S. Levoritz, P.C. ("Levoritz"). I am fully
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`familiar with the facts and circumstances involved herein, based upon a review of the file
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`maintained by my office and my personal participation in this litigation.
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`2.
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`This affirmation is submitted in support of Levoritz' motion to disqualify Plaintiff
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`for a) an order disqualifying counsel for Plaintiff, Belowich & Walsh LLP, pursuant to Rule 3.7
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`of the N.Y Rules of Professional Conduct as Brian T. Belowich, Esq., a partner in that law firm,
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`is a material witness in this action; b) a protective order seeking to quash the Notice of
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`Deposition dated June 5, 2015 served upon Yonatan S. Levoritz, Esq. by Plaintiff, David Bruce
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`McMahan's ("Plaintiff') counsel, pursuant to CPLR 3103; 1 c) an order pursuant to CPLR 2201
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`to stay discovery pending a decision on Levoritz' motion to dismiss/for summary judgment; and
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`d) for such other and further relief as the Court deems just and proper.
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`I This motion operates to automatically suspend Levoritz' obligation to respond to the deposition notice at issue
`pursuant to CPLR 3103(b). A copy of the deposition notice is annexed hereto as Exhibit "A."
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`

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`3.
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`In this action, Plaintiff is attempting to prevent Co-defendant, Elena McMahan
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`("Elena"), from paying legal fees she owes to her counsel, Levoritz, and to deprive Elena of her
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`chosen counsel in numerous actions between her and Plaintiff by claiming that the charging lien
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`Levoritz rightfully obtained on Elena's house located at 8 Bellefair Boulevard, Rye Brook, New
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`York 10573 (the "Premises") in 2013 to secure payment of legal fees was a fraudulent
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`conveyance. Given the scorched earth litigation that Plaintiff has unleashed upon Elena over the
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`last eight years, any claim that Levoritz is not entitled to secure payment and be paid for the
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`extensive legal services that Elena's adversary is well aware of is simply frivolous. Accordingly,
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`after being served with the Complaint in this action, Elena and Levoritz moved to dismiss the
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`Complaint and for summary judgment, respectively, and those motions were marked fully
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`submitted before Justice Sam D. Walker on June 3, 2015.
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`4.
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`As will be more fully discussed below, it is respectfully submitted that Plaintiff's
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`counsel, who has been Levoritz adversary in many of the subject litigations since at least 2013,
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`should be disqualified based the fact that Mr. Belowich is a material witness in this action. Mr.
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`Belowich is a material witness on issues among others, as to why Plaintiff and his counsel
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`permitted a notice of pendency filed against the Premises to lapse without renewal and whether
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`there was a waiver by Plaintiff of his claim to be secured by filing a lien against the Premises. In
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`addition, Mr. Belowich is a material witness as to whether Plaintiff knew of the amounts due
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`Levoritz and Levoritz' former firm and the value of his and Plaintiff's other counsel's services in
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`comparison to Levoritz' services.
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`5.
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`In addition, there is currently a dispute between Plaintiff's counsel and our office
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`regarding producing Mr. Levoritz for a deposition. Plaintiff wants to depose Mr. Levoritz and no
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`doubt
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`to
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`intrude upon
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`the attorney-client relationship
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`in order
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`to obtain privileged
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`- 2 -
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`

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`communications and work product prepared by Levoritz and its predecessor firm on behalf of
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`Elena in the extensive litigation in which they have appeared on behalf of Elena against Plaintiff
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`since 2007. Based upon counsel's disagreement over whether or not Mr. Levoritz should be
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`produced for a deposition at this time, and in a good faith attempt to resolve this issue without
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`motion practice, we requested that Plaintiff s counsel cooperate with us to schedule a conference
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`with the Court to discuss the issue. Plaintiffs counsel, however, declined our invitation to
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`schedule a conference call with the Court.
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`6.
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`As the Court is aware, Your Honor's part rules provide that there is no stay of
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`discovery resulting from the filing of a motion for summary judgment, unless otherwise ordered
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`by the Court. As such, based upon your Honor's part rules and because Plaintiffs counsel
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`refuses to participate in a telephone conference, we have interposed the instant motion.
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`7.
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`Lastly, it is respectfully requested that the Court stay all discovery until a decision
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`is rendered on the pending motions to dismiss and for summary judgment, as well as this motion
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`to disqualify Plaintiff s counsel.
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`RELEVANT FACTUAL AND PROCEDURAL HISTORY
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`8.
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`For the sake of brevity, the Court is respectfully referred to the Affirmation of
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`Noah Nunberg in Support of the Motion to Dismiss the Complaint dated May 20, 2015 ("Aff. in
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`Support of the Motion to Dismiss") for the relevant factual history of this case. See NYSCEF
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`Doc. No. 52 at ~~4-16.
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`9.
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`As discussed in the Aff. in Support of the Motion to Dismiss, Levoritz has
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`represented Elena since 2007 in her prolonged legal battle arising out of her divorce proceedings
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`commenced by Plaintiff. The legal fees incurred by Elena for Mr. Levoritz's legal services in the
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`numerous matters in which Mr. McMahan is her adversary is fast approaching $700,000.
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`- 3 -
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`10. Mr. Levoritz has represented Elena since approximately 2007 in the following
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`Supreme Court, Westchester County actions against Plaintiff: (1) David Bruce McMahan v.
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`Elena McMahan, Index Number 399/2005; (2) David Bruce McMahan v. Elena McMahan,
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`Index Number 14070/2007; (3) David Bruce McMahan v. Elena McMahan, Index Number
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`57628/2013; (4) David Bruce McMahan v. Elena McMahan, Index Number 953112007; (5)
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`David Bruce McMahan v. Elena McMahan, Index Number 20582/2009; and (6) David Bruce
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`McMahan v. Elena McMahan, Index Number 55680/2013.
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`11.
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`Additionally, Mr. Levoritz represented Elena in four actions she commenced
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`against her ex-husband related to the divorce, the separation agreement as well as a tort action
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`for defamation, as follows: (1) Elena McMahan v. David Bruce McMahan, Index Number
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`11014212011 in the Supreme Court, New York County; (2) Elena McMahan v. David Bruce
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`McMahan, Index Number 3016312010 in the Supreme Court, Westchester County; (4) Elena
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`McMahan v. David Bruce McMahan, Index Number 114668/2007 in the Supreme Court, New
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`York County; and (4) Elena McMahan v. David Bruce McMahan, Index Number 1689312007 in
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`Supreme Court, Kings County.
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`12.
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`These bitterly fought actions have taken an emotional and financial toll on Elena,
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`which is apparently exactly what Mr. McMahan, an extremely wealthy individual, seeks to inflict
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`upon his ex-wife.
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`13.
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`On or about March 30, 2015, Plaintiff commenced the instant action, naming
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`Elena and Levoritz as defendants. See Complaint at NYSCEF Doc. No.1? In this action,
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`2 This is not the first attempt by Mr. McMahan and his counsel to bring a baseless suit to attempt to inflict financial
`distress upon Mr. Levoritz. In 2013, Mr. McMahan commenced a short-lived action against Mr. Levoritz in this
`Comt in the action entitled David Bruce McMahan v. Elena McMahan and Yonatan S. Levoritz, Index No.
`57628/2013, for alleged defamation and inducing Elena to breach of the Confidentiality Provision contained in the
`Post-Nuptial Stipulation of Settlement dated March 10, 2005 (the "Confidentiality Agreement"), predicated upon
`Mr. Levoritz's statements made and discovery taken in the course of Mr. McMahan's contract suit against Elena.
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`- 4 -
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`

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`Plaintiff is seeking to interfere with Elena's good faith actions taken to utilize her assets to pay
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`for legal representation needed as a result of Plaintiff s legal war of attrition. Plaintiff is
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`claiming that Elena's transfer of the Premises and designated on the Tax Map of the Town of
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`Rye Brook, County of Westchester as Section: 124.73, Block: 2, Lot: 20 (the "Premises"), to pay
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`the substantial legal fees Elena owed to Levoritz and its predecessor firm arising out of the
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`plethora oflegal services rendered by Levoritz to fend offMr. McMahan's onslaught, constituted
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`a fraudulent conveyance. This interference with the legal fee arrangement of Plaintiffs
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`adversary, is just a transparent tactic by Plaintiff to deprive Levoritz of its well-earned fees in the
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`hope of depriving Elena of the effective assistance of counsel.
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`14.
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`On or about April 20, 2015, Levoritz filed an Answer to the Complaint. NYSCEF
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`Doc. No. 46. On or about May 11,2015, Levoritz filed an Amended Answer to the Complaint.
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`NYSCEF Doc. No. 49.
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`15.
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`On or about May 19, 2015, Plaintiffs counsel served a Notice of Deposition
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`seeking to depose Mr. Levoritz.
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`16.
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`The Notice of Deposition was rejected by me on May 22, 2015 and returned to
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`Plaintiffs counsel. See Ex. B annexed hereto.
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`In the letter, I advised, inter alia, that service of
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`a notice of deposition upon a non-party, namely Mr. Levoritz, individually, is improper since the
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`correct method of service on a non-party is by subpoena. As such, I advised that Levoritz would
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`not appear for his deposition.
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`17.
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`On May 28,2015, we received a letter from Plaintiffs counsel stating, inter alia,
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`that Yonatan S. Levoritz is to be produced. Ex. C.
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`18.
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`On June 5, 2015, I sent Plaintiffs counsel another letter. Ex. D. In the letter, I
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`advised that the deposition of Mr. Levoritz, no matter what capacity Mr. Levoritz is designated
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`- 5 -
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`as,
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`IS
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`intended to
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`intrude upon the attorney-client relationship and to seek privileged
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`communications and work product prepared by Levoritz and its predecessor firm on behalf of
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`Elena in the extensive litigation in which they have appeared on behalf of Ms. McMahan against
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`Plaintiff since 2007.
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`Id. As such, I advised that given the other pending litigation between
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`Plaintiff and Elena before your Honor that Mr. Levoritz will not be produced, unless and until
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`there is a threshold ruling from the Court that he must appear prior to the disposition of the
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`motions to dismiss.
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`In the letter, we suggested that rather than engaging in motion practice to
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`resolve this threshold issue of whether Mr. Levoritz must appear during the pendency of the
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`motions under the particular circumstances of this case where there is also parallel litigation
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`among the parties, I proposed that we have arrange a conference call with the Court for a ruling
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`in lieu of a motion. Id.
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`19.
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`On June 11, 2015, I received a letter from Plaintiff s counsel stating that they
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`"decline" our "invitation to schedule a conference call with the Court." Ex. E.
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`In the letter,
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`Plaintiffs counsel attached a second deposition notice identifying Yonatan S. Levoritz, P.C. for
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`a deposition on July 23,2015. Id.
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`20.
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`Pursuant to your Honor's part rules, there is no automatic stay of discovery when
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`a motion for summary judgment is interposed. As such, based upon your Honor's part rules and
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`Plaintiffs counsel's failure to cooperate, we have interposed the instant motion.
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`- 6 -
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`

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`ARGUMENT
`
`POINT I
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`PLAINTIFF'S COUNSEL MUST BE DISQUALIFIED
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`21.
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`It is respectfully submitted that Mr. Belowich should be disqualified as Plaintiffs
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`counsel pursuant to Rule 3.7 of the New York Rules of Professional Conduct ("Rule 3.7"). Rule
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`3.7 states as follows:
`
`(a) A lawyer shall not act as advocate before a tribunal in a matter in
`which the lawyer is likely to be a witness on a significant issue of fact
`unless:
`(1) the testimony relates solely to an uncontested issue;
`
`(2) the testimony relates solely to the nature and value of legal services
`rendered in the matter;
`
`(3) disqualification of the lawyer would work substantial hardship on
`the client;
`
`(4) the testimony will relate solely to a matter of formality, and there is
`no reason to believe that substantial evidence will be offered in
`opposition to the testimony; or
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`(5) the testimony is authorized by the tribunal.
`
`(b) A lawyer may not act as advocate before a tribunal in a matter if:
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`(1) another lawyer in the lawyer's firm is likely to be called as a witness
`on a significant issue other than on behalf of the client, and it is
`apparent that the testimony may be prejudicial to the client; or
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`(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.
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`Rule 3.7 of the N.Y Rules of Professional Conduct (Emphasis Added).
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`- 7 -
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`22.
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`A court, in determining whether disqualification is warranted, must examine all
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`the facts and circumstances of the case. Courtney v. Edelschick, 157 AD.2d 818, 821, 550
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`N.Y.S.2d 415 (2d Dep't 1990). Any doubt must be resolved in favor of disqualification. 108
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`Street Owners Corp. v. Overseas Commodities, Ltd., 238 AD.2d 324, 656 N.Y.S.2d 942 (2d
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`Dep't 1997); Solomon v. New York Property Ins., 118 AD.2d 695, 500 N.Y.S.2d 41, 42 (2d
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`Dep't 1986); Schmidt v. Magnetic Head Corp., 101 AD.2d 268, 476 N.Y.S.2d 151 (2d Dep't
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`1984 ) (disqualification of attorney is a matter which rests with in sound discretion of the Court
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`and will not be overturned absent showing of abuse).
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`23.
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`The Court of Appeals set forth
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`the standard for determining whether
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`disqualification is warranted in S & S Ventures Ltd Partnership v. 777 S.H Corp., 69 N.Y.2d
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`437,515 N.Y.S.2d 735 (1987), holding that "[d]isqualification may be required only when it is
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`likely that the testimony to be given by the witness is necessary" and "finding of necessity takes
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`into account such factors as the significance of the matters, weight of the testimony, and
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`availability of other evidence." S & S, 69 N.Y.2d at 445-46.
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`24.
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`In Kattas v. Sherman, 32 AD.3d 496, 820 N.Y.S.2d 631 (2d Dep't 2006), the
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`Appellate Division, Second Department, disqualified counsel who had represented the purchaser
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`plaintiff in the underlying transaction to purchase a house in an action where the plaintiff alleged
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`the seller had repudiated the contract. The Court found that because the Plaintiffs' counsel was a
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`potential witness in the determination of the breach of contract issue, and was intimately
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`involved in the failed purchase of the property, he should be disqualified from appearing as the
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`purchaser's counsel in the action. Similarly, in Burnette v. Gianftlice, 171 AD.2d 719, 567
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`N.Y.S. 279 (2d Dep't 1991), an attorney who participated in negotiation of a mortgage and
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`mortgage note, and who had personal knowledge of the parties' intent, was disqualified from
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`- 8 -
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`

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`acting as mortgagee's attorney in a foreclosure action. See also In Korfmann v. Kemper Nat. Ins.
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`CO' L 258 A.D.2d 508, 685 N.Y.S.2d 282 (2d Dep't 1999)(where the Plaintiffs' attorney was
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`involved in the underlying negotiations with insurance company and was an essential witness in
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`bad faith action and thus should have been disqualified.)
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`25.
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`In this case, Plaintiff is claiming that Elena's transfer of her house of the Premises
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`to pay the substantial legal fees Elena owed to Levoritz and its predecessor firm arising out of
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`the plethora of legal services rendered by Mr. Levoritz to fend off Mr. McMahan's onslaught,
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`constituted a fraudulent conveyance. Plaintiffs counsel is undoubtedly a witness in this case.
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`26.
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`Although Plaintiff claims he now is entitled to a lien on the Premises based upon
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`a 2009 Order of this Court, Justice Walker imposed a duty upon Mr. McMahan and his counsel
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`to place such lien upon the Premises "either at the closing or as soon thereafter as practical. .... "
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`Ex. F. Although the closing whereby Elena acquired title to the Premises took place on October
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`19, 2009, in complete disregard of Justice Walker's Order, Plaintiff and his former counsel
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`simply neglected to file a lien on the Premises to date. Id.
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`27.
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`Instead, Plaintiff and his former counsel improperly filed a Notice of Pendency,
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`dated October 23, 2009, under Index No. 14070107, the alleged breach of the Confidentiality
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`Provision law suit, to cloud title although that specific action for damages did "affect the title to,
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`or the possession, use or enjoyment of, real property," as required by CPLR § 6501 for a party to
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`utilize a notice of pendency.
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`28.
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`A copy of the Complaint in that lawsuit filed under Index No. 14070107 in this
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`Court by Mr. McMahan against Elena is annexed hereto as Ex. G. As can be seen therein, there
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`are no allegations in that action that "affect the title to, or the possession, use or enjoyment of,
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`real property." See CPLR § 6501. Nevertheless, disregarding Justice Walker's direction to file a
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`- 9 -
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`

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`lien against the Premises, Mr. McMahan and his former counsel improperly filed the Notice of
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`Pendency in the Westchester County Clerk's Office on or about October 23, 2009 in his
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`unwarranted attempt to encumber the Premises.
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`29.
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`Furthermore, regardless of whether the filing of the Notice of Pendency under
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`CPLR § 6501 was appropriate or not, the unequivocal language of CPLR § 6513 provides that
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`"[ a] notice of pendency shall be effective for a period of three years from the date of filing," the
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`Notice of Pendency filed on or about October 23, 2009, and the Notice of Pendency
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`automatically lapsed and became a nullity on or about October 23, 2012.
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`30.
`
`No motion was made by Mr. McMahan or his counsel before October 23, 2012
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`pursuant to CPLR § 6513 in order to obtain an extension for another three year period of the
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`Notice of Pendency. Mr. Belowich, as counsel for Plaintiff, took no corrective action or
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`attempted to file any lien on the Premises to protect his client's interests, as required by Justice
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`Walker. Accordingly, Mr. Belowich is a material witness on issues of why the Notice of
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`Pendency lapsed without subsequent renewal or why other steps were not taken before Levoritz
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`obtained his interest in the Premises in 2013 to impose a lien on the Premises and protect any
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`claim of priority by Plaintiff in the Premises.
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`31.
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`In addition, Mr. Belowich is a material witness as to whether he and Plaintiff
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`knew of the amounts due Levoritz' former firm and the value of his and Plaintiff's other
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`counsel's services compared to Levoritz' services. In Mr. Belowich's affirmation in opposition
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`to Levoritz' motion for summary judgment, he writes in footnote 9:
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`Yonatan Levoritz states in his Affidavit that he "spoke with" the undersigned
`[Mr. Belowich] "about [his] negotiations with Mr. Hagler." See Levoritz Aff.,
`~41. This statement is false. Mr. Levoritz never spoke with the undersigned
`about his negotiations with Mr. Hagler or about the dissolution of Levoritz &
`Hagler, P.C.
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`- 10-
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`

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`See Ex. H, at p. 11, footnote 9. Should this action survive the pending motions, this attempt by
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`Mr. Belowich to controvert Mr. Levoritz' sworn statements will have to be explored in discovery
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`at Mr. Belowich's deposition.
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`32.
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`Since Plaintiffs counsel should be disqualified as he is a material witness to this
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`action, his office should not be conducting depositions of witnesses with whom Mr. Belowich
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`has communicated on material issues in this action.
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`33.
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`The aforementioned statement and the other issues upon which Mr. Belowich will
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`be a material witness in this action if it is not dismissed pursuant to the pending dispositive
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`motions clearly supports disqualification of Mr. Belowich. Based upon the foregoing, it is
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`respectfully submitted that Mr. Belowich be disqualified as Plaintiffs counsel pursuant to Rule
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`3.7.
`
`POINT II
`
`A PROTECTIVE ORDER MUST BE ISSUED PREVENTING PLAINTIFF
`FROM DEPOSING HIS EX-WIFE'S ATTORNEY
`
`34.
`
`It is respectfully requested that pursuant to CPLR 31 03 (a), that the Court issue a
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`protective order and preventing Plaintiff from violating the attorney-client privilege by
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`depositing his ex-wife's attorney, Levoritz. CPLR 31 03(a) states:
`
`The court may at any time on its own initiative, or on motion of
`any party or of any person from whom discovery is sought,
`make a protective order denying, limiting, conditioning or
`regulating the use of any disclosure device. Such order shall be
`designed
`to prevent unreasonable annoyance,
`expense,
`embarrassment, disadvantage, or other prejudice to any person
`or the courts.
`
`N.Y. c.P.L.R. 3103(a).
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`- 11 -
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`35.
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`As referenced above, Plaintiff's complaint is completely frivolous which is why
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`Levoitz interposed the motion for summary judgment/to dismiss. Plaintiff's counsel's deposition
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`notice is simply a way to intrude upon the attorney-client relationship. The attorney-client
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`privilege is the oldest of privileges for confidential communication known to the common law.
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`Its purpose is to encourage full and frank communication between attorneys and their clients and
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`thereby promote broader public interests in the observance of law and administration of justice."
`Upjohn Co. v. u.s., 449 U.S. 383, 389 (1981). Rooted in the Sixth Amendment to the U.S.
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`Constitution, the privilege has been codified in CPLR §4503, the purpose of which is to foster
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`"uninhibited dialogue between lawyer and clients in their professional engagements, thereby
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`ultimately promoting the administration of justice." Rossi v. Blue Shield, 73 N.Y.2d 588, 592
`
`(1989).
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`36.
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`Here, Plaintiff is attempting to delve deeply into the nature of the legal services
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`rendered by Levoritz in all the cases in which Levoritz has represented Elena is the myriad of
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`cases against her former husband. This is clearly an attempt by Plaintiff to intrude into attorney
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`client communications between Elena and Levoritz and the work product prepared by Levoritz
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`on Elena's behalf in her litigations against the Plaintiff. This simply is a backdoor attempt to get
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`the deposition of Levoritz for use in the other cases that are pending in which Leroritz is
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`appearing as counsel.
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`37.
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`The public policy of New York, as set forth in the case law, expressly prohibits
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`Plaintiff's attempt to depose Levoritz. "Courts have made clear that attorneys should, only in
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`rare and special circumstances, be forced to testify against their own clients," a practice which is
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`"offensive to our conception of the adversarial process." Giannicos v. Bellevue Hasp. Med. Ctr.,
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`7 Misc. 3d 403, 406-07 (Sup. Ct. N.Y. Co. 2005) (granting motion to quash).
`
`If Levoritz is
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`- 12 -
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`forced to appear for a deposition, he will essentially be testifying against his client, co-defendant,
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`Elena and forced to reveal attorney-client communications.
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`38. Whether or not there exists "rare or special circumstances" sufficient to permit the
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`deposition of opposing counsel is determined by a three-prong test, pursuant to which the party
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`seeking the deposition carries the burden of demonstrating that: (l) no other means exist to
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`obtain the information than to depose opposing counsel; (2) the information sought is relevant
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`and non-privileged; and (3) the information is crucial to the preparation of the case. Giannicos, 7
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`Misc. 3d at 407-08. See also In re Estate of Cavallo, 20 Misc. 3d 219,222, 858 N.Y.S.2d 564,
`
`566 (N.Y. Sur. Ct. 2008) ("the Court notes with approval a three-prong test created by the Eighth
`
`Circuit Court of Appeals in Shelton, all prongs of which must be satisfied before a party will be
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`permitted to depose opposing counsel"); see also In re Estate of Tigran Arrathoon, 2006 N.Y.
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`Misc. LEXIS 5362, at *5 (N.Y. Sur. Ct. Oct. 2, 2006) ("[t]hus, before a party's attorney may be
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`deposed, [it] must be established that the information sought is necessary").
`
`39.
`
`For example, in lIas v. Nihagen & Co., Inc., the First Department denied the
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`deposition of a corporate attorney because movant had "failed to make the requisite
`
`demonstration that the information sought from [the corporation's attorney] was material and
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`necessary. " 303 A.D.2d 298,298, 756 N.Y.S.2d 573,574 (lst Dep't 2003) (emphasis added).
`
`40.
`
`The three-prong test followed in New York was first articulated by the Eighth
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`Circuit Court of Appeals in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986).
`
`See, Giannicos, 7 Misc. 3d at 408 (citing Shelton as the source of the three-prong test). Below is
`
`the Shelton court's explanation of the public policy issues implicated by depositions of opposing
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`counsel:
`
`Taking the deposition of opposing counsel not only disrupts
`lowers the standards of the
`the adversarial system and
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`profession, but it also adds to the already burdensome time and
`costs of litigation. It is not hard to imagine additional pretrial
`delays to resolve work-product and attorney-client objections,
`as well as delays to resolve collateral issues raised by the
`attorney's testimony. Finally, the practice of deposing counsel
`detracts from the quality of client representation. Counsel
`should be free to devote his or her time and efforts to preparing
`the client's case without fear of being interrogated by his or her
`opponent. Moreover, the chilling effect that such practice will
`have on the truthful communications from the client to the
`attorney are obvious.
`
`Shelton, 805 F.2d at 1327.
`
`41.
`
`Here, applying the three-prong test, Plaintiff cannot demonstrate that any of the
`
`three prongs are satisfied. First, the information sought is available elsewhere. The Plaintiff has
`
`obtained pleadings in the Kings County action in which Levoritz obtained a charging lien, which
`
`sets forth the basis of the judgment rendered in Levoritz's favor. Additionally, besides the public
`
`record, at the appropriate time, Plaintiff can depose Elena.
`
`42.
`
`Second, the information sought is clearly privileged. Plaintiff seeks to obtain
`
`conversations between Levoritz and his client, Elena.
`
`In exploring the value of Levoritz's legal
`
`services Plaintiff undoubtedly will depose Levoritz to delve into privileged communications and
`
`work product prepared by Levoritz and its predecessor firm on behalf of Elena against Plaintiff
`
`in the extensive litigation in which Levoritz and his predecessor firm has appeared on behalf of
`
`Elena against Plaintiff since 2007. By virtue of the nature of the claim, it is anticipated that the
`
`Plaintiff will inquire into the nature of the services and the work product rendered by Levoritz on
`
`behalf of Elena in the numerous cases against the Plaintiff. Such intrusion into the attorney-
`
`client relationship by Elena's arch adversary is improper and unfair given the pending litigations.
`
`43.
`
`Lastly, the information sought by Plaintiff is not crucial to the preparation of his
`
`case against defendants at this stage of this action given the pending motions to dismiss and for
`
`- 14 -
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`

`

`summary judgment. Given the likelihood that those motions will be granted in favor of Elena
`
`and Levoritz, no such discovery is necessary at this time and it would be simply a waste of time.
`
`44.
`
`Based upon the foregoing, it is respectfully requested that a protective order be
`
`issued preventing Plaintiff from depositing Levoritz, Plaintiffs ex-wife's attorney.
`
`POINT III
`
`THE ACTION SHOULD BE STAYED PENDING A
`DECISION ON LEVORITZ' MOTION FOR SUMMARY JUDGMENT
`
`45.
`
`CPLR 2201 provides: "Except where otherwise prescribed by law, the court in
`
`which an action is pending may grant a stay of proceedings in a proper case, upon such terms as
`
`may be just." CPLR 22201. "[A] court has broad discretion to grant a stay in order to avoid the
`
`risk of inconsistent adjudications, application of proof and potential waste of judicial resources."
`
`Moreale v. Moreale, 84 A.D.3d 1187,923 N.Y.S.2d 876 (internal citations omitted).
`
`46.
`
`As referenced above, Levoritz' motion for summary judgment/to dismiss was
`
`marked fully submitted on June 3, 2015.
`
`It would be a waste of the parties' and the Court's
`
`resources to proceed with discovery in light of the fact that this case will likely be dismissed. As
`
`such, it is respectfully submitted that this action be stayed pending a determination of the
`
`motions to dismiss and for summary judgment.
`
`WHEREFORE, Defendant, Law Office of Yonatan S. Levortiz, P.c., respectfully
`
`requests an Order of this Court: disqualifying Plaintiff s counsel, issuing a protective order
`
`quashing the Notice of Deposition dated June 5, 2015 served upon Yonatan S. Levoritz, Esq.,
`
`staying discovery until a decision is rendered on Levoritz' motion for summary judgment and/or
`
`to dismiss and granting such other and further relief as justice requires.
`
`Dated: Garden City, New York
`June 25,2015
`
`~J!;J2
`
`NOAH NUNBERG
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`- 15 -
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`