This dispute arises over renovations to units in a condominium building. Plaintiffs, Robin and Elena Eshaghpour and East River Condo LLC, brought this action against defendants, The Promenade Condominium and its board of managers.

Plaintiffs assert claims for (i) breach of alteration agreement; (ii) breach of settlement agreement; (iii) declaratory judgment that plaintiffs have complied with the alteration agreement; (iv) permanent injunction enjoining plaintiff's from interfering with plaintiffs' renovations; (v) accounting; (vi) declaratory judgment and mandatory injunction to permit Department of Buildings inspectors to enter the building; and (vii) declaratory judgment and mandatory injunction declaring that plaintiff paid all sums owed on their units. (NYSCEF No. 4 at 26-27 [complaint].)

On motion sequence 002, defendants move under 22 NYCRR 130-1.1 for sanctions against defendant Mr. Eshaghpour. The motion is denied without prejudice.

On motion sequence 003, plaintiffs move to compel a nonparty to produce emails plaintiffs subpoenaed from it. Defendants cross-move to quash the subpoena. The motion is granted. The cross-motion is denied.

The motions are consolidated for disposition.

On motion sequence 002, defendants move for Part 130 sanctions (both to strike plaintiffs' pleadings and monetary sanctions) against Mr. Eshaghpour. They claim that Mr. Eshaghpour submitted forged and counterfeit documents and suborned perjury in this action and in related actions. The motion is denied without prejudice. The parties' back-and-forth allegations must be resolved at trial.

Defendants claim that Mr. Eshaghpour submitted a false alteration agreement—an agreement authorizing plaintiffs to make alterations to their units. Defendants contend that Mr. Eshaghpour forged board member Mark Jacobson's signature on the agreement. To support their contention that Mr. Eshaghpour falsified the agreement, defendants provide an expert affidavit analyzing the signature; copies of other units' alteration agreements; and an affidavit from Joseph Grimes, the former building manager.

But defendants' expert does not provide irrefutable conclusions about the authenticity of Jacobson's signature. Defendants' expert acknowledges the limit of his conclusions given the lack of "fine detail" in the documents examined. (See NYSCEF No. 64 at 5.) Plaintiffs' expert also opines that the other units' alteration agreements not comparable because they are reproduced with better quality. (See NYSCEF No. 92 at 8). Additionally, defendants waited 10 years from the time Grimes allegedly signed the affidavit to raise their contention that the alteration agreement is forged.^[FN1]

Plaintiffs also state that res judicata bars contesting the authenticity of the alteration agreement. According to plaintiffs, a voluntary stipulation with prejudice was signed by plaintiffs and the board defendants and authenticity of the agreement was addressed in one of the earlier actions (Index No. 160174/2014 [First Eshaghpour Action].) Defendants contend that plaintiffs do "not identify any claim in the First Eshaghpour Action concerning the validity of the Alteration Agreement." (NYSCEF No. 94 at 3 [emphasis added].) The court agrees with defendants. (Cf. Singleton Mgt., Inc. v Compere, 243 AD2d 213, 216 [1st Dept 1998] [using phrase "with prejudice" in a stipulation of discontinuance "raises a presumption that the stipulation is to be given res judicata effect in a subsequent action on the same cause of action"].)

Defendants claim that in another Eshaghpour action (Index No. 151028/2022), Mr. Eshaghpour submitted two forged letters from Mary Signorella (the previous building manager employed by an outside party), dated November and December 2016. The letters indicate that the defendants authorized plaintiffs to conduct the alterations. (See NYSCEF No. 57 at 4-5 [pdf pagination].) Defendants submit an affidavit from Alexis Kaminoff-Fritz, Signorella's successor, in which Kaminoff-Fritz avers that Signorella told her she had not signed those letters. (NYSCEF No. 58 at 3.) Kaminoff-Fritz also notes that the letterhead on the allegedly forged letters is not Signorella's employer's letterhead, but the condominium's letterhead. (Id.) Defendants also submit an affidavit from Signorella herself (dated 2022) in which she represents that she did not write or sign the letters.^[FN2]

In opposition, Mr. Eshaghpour attaches an email from Signorella dated February 2017 in which she uses the condominium's letterhead. (NYSCEF No. 85 at 4-5.) He further asserts that he did not create or forge the letters. (Id. at 5.) But defendants say that Mr. Eshaghpour's representations are insufficient. They argue that Mr. Eshaghpour "does not explain how he obtained the Signorella Letters (such as via email, hand delivery, etc.), why they were given to him, by whom, when, etc.," and that he "produced the Signorella Letters to the Board in the Second Board Action, so he possessed them independently of the Board or anyone else." (NYSCEF No. 94 at 6.)

Defendants claim that in the third board action (Index No. 850669/2023), Mr. Eshaghpour suborned Jose Marrero—the condominium concierge—to retract an affidavit he previously provided in a different but related action (Index No. 151028/2022). In the new affidavit, Marrero represents that he perjured himself in the first affidavit. In the first affidavit, Morrero represented that he saw Mr. Eshaghpour carrying a gun in the building. (NYSCEF No. 59.) In the second affidavit, he represents that the board pressured him into signing the earlier affidavit and that, at a subsequent conference, he refused to sign an additional affidavit affirming that Mr. Eshaghpour carries a gun. (NYSCEF No. 60 at ¶ 8.) In the second affidavit, he retracts the first affidavit.

Defendants' attorney represents that he was at the conference, and that Marrero's account is false. (NYSCEF No. 55 at ¶ 17.) Counsel says that at the conference, Marrero never said that the first affidavit was perjurious. (Id. at ¶ 18.) Counsel says he called defendants' former attorney, who assured counsel that he never pressured Marrero or solicited anything from Marrero. (Id. at ¶ 20.) Instead, defendants contend that Morrero's second affidavit is perjurious. The board contends that "that Robin suborned his perjury either through consideration or threats or both." (Id. at ¶ 22.)

Defendants finally contend that an email Mr. Eshaghpour submitted in the First Esahghpour Action (Index No. 160174/2014) was counterfeit. In that email, Joseph Grimes, the former building manager—who is now deceased—wrote to the Eshaghpours (in March 2013) that their project was approved. (NYSCEF No. 67.) Defendant argues that the email is fraudulent, because Grimes approved the "project" without defining what the project was and made no provision for the condominium to have its own engineers review and approve the plans. (NYSCEF No. 55 at ¶ 34.) Defendants also submit a 2014 affidavit from Grimes that he never saw cross-outs like those in the 2013 alteration agreement and that that the Eshaghpours' alteration agreement was not within his files. (NYSCEF No. 68.) It is unclear why defendants' did not question the email as soon as they obtained Grimes's affidavit

Mr. Eshaghour argues that the Grimes affidavit is inadmissible because it contains assertions of a deceased individual made in the course of a now-disposed-of action. In contrast, plaintiff argues that CPLR 4517 allows the court to hear prior testimony from a decedent.

The court agrees with Mr. Esahgpour. Mr. Eshaghpour submitted Grimes's affidavit, not his testimony. CPLR 4517 is inapplicable, because affidavits and testimony are different. (See Friedman v Sills, 112 AD2d 343, 345 [2d Dept 1985] [holding that CPLR 4517 does not apply to affidavits].) Nor have defendants shown "the prime and essential requirement of admissibility under the foregoing exception, i.e., that the opponents or their privies have had a meaningful opportunity to cross-examine the witness on his version of the events." (Id. [internal quotation marks omitted].) Notably, defendants seek to put this burden on Mr. Eshaghpour. But defendants are the parties seeking to rely on Grimes's affidavit. The affidavit is therefore hearsay. (See Manufacturers Hanover Tr. Co. v Manufacturers and Traders Tr. Co., 174 AD2d 548, 549 [1st Dept 1991] [holding that affidavit of deceased person from prior discontinued action is inadmissible hearsay].)

Defendant further contends that Mr. Eshaghpour submitted the email in PDF form, and not in its native format, to avoid exposing that the email is forged. (NYSCEF No. 55 at ¶ 39.) Mr. Eshaghpour contends that this court already required him to submit a Jackson affidavit affirming that he does not possess the email in native format. (NYSCEF No. 85 at 3-4.) In that affidavit, Mr. Eshaghpour represented that he searched for the email in his old email account; that the account did not have the Grimes email in native format; and that he kept only a hard copy of the email. (NYSCEF No. 81.)

This court declines to grant sanctions at this juncture. To do so would require the court to render conclusions about the authenticity and weight of evidence—issues meant for a trier of fact. Once a jury or bench court hears the trial evidence and adduces authenticity, defendants may renew their petition to determine whether sanctions are warranted. This court's analysis of the disputed evidence (see Part A), does not preclude a post-trial determination in favor of [*3]sanctions.^[FN3] Defendants' motion for sanctions is denied without prejudice.^[FN4]

In 2023, and again in 2024, plaintiffs served a subpoena on nonparty Brookfield Properties to provide "all correspondence, including attachments to emails" for its employee Duncan McCuaig's email. (NYSCEF No. 106 at 4 [pdf pagination].) McCuaig is a board member of defendant board. On motion sequence 003, plaintiffs move to compel Brookfield to produce emails Brookfield claims are privileged. (NYSCEF No. 101 at 2.) Brookfield opposes the motion. Defendants cross-move to quash the subpoena. Plaintiff's motion is granted. Defendants' cross-motion is denied.

Defendants first argue that the subpoena does not comply with CPLR 3101 (4)'s notice requirement—to give nonparties an explanation of why the requested discovery is needed—and therefore that it should be quashed. But defendants raised this argument, not Brookfield, the nonparty. Brookfield has waived this argument. (See Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 111-112 [1st Dept 2006] ["[I]f such nonparties, who have the burden of delineating any specific reasons why the requirement in CPLR 3101(a)(4) is not satisfied, do not object and the disclosure goes forward, such extra requirement is, in effect, waived."].)

Defendants argue that the subpoena is too broad because it seeks emails that reference the Eshaghpour parties. They contend that "[a] proper subpoena would have been narrowly tailored to seek non-privileged documents concerning the (purported) Alteration Agreement, the Settlement Agreement or the Unauthorized Alterations." (NYSCEF No. 111 at 3-4.) But Brookfield, the party subpoenaed to produce the emails, does not complain about the subpoena's breadth. Indeed, Brookfield produced some responses (except for those it claims are privileged). Defendants' argument is unavailing.

Plaintiffs contend that Brookfield has no standing to assert the attorney client-privilege in response to the subpoena, because there is no attorney-client relationship between itself and McCuaig. Brookfield argues that that "employers have third-party standing to challenge [*4]subpoenas directed at their employees" (NYSCEF No. 114 at 3.) But the authority Brookfield cites stands for the proposition that employers have "standing to challenge the subpoena directed to its employee, which sought information obtained by the employee through his employment." (Quevedo v Eichner, 29 AD3d 554, 555 [2d Dept 2006].) Brookfield does not contend that the emails concern issues within McCuaig's scope of employment. Brookfield does not articulate what proprietary or other interest it has in keeping McCauig's emails confidential. (See NYSCEF No. 114 at 3.) Brookfield lacks standing to contest the subpoena.

Plaintiffs argue that because McCuaig sent emails using his work email address, waived the attorney-client privilege with respect to those emails, given that Brookfield had access to them. (NYSCEF No. 100 at 9-10.) The court agrees.

The First Department in Peerenboom v Marvel Entertainment, LLC, (148 AD3d 531, 531-532 [1st Dept 2017]), endorsed consideration of four questions (named in Matter of Asia Global Crossing, Ltd., 322 B R 247, 257 [Bankr SD NY 2005]) to ascertain when an individual lacks a reasonable expectation of privacy in email communications. Those questions are: "(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?" (Id.)

Defendants argue that Brookfield's policy, "reserves the right to monitor any Internet, network and e-mail use, and to access and disclose any information stored" but that it does not monitor email accounts and that other staff members at Brookfield cannot access other employees' work emails (NYSCEF No. 111 at 9). Plaintiffs contend that McCuaig did waive the privilege in because (i) Brookfield has a policy limiting personal use of company emails; (ii) Brookfield can monitor employee's use of company email and notified McCuaig of that policy; and (iii) Brookfield has the right to access the employee's email.

The court agrees with plaintiffs. By using his company email address, McCuaig waived his right to keep those emails confidential. It is undisputed that McCuaig received the company policies. Brookfield's policy provides that "Brookfield reserves the right to monitor any Internet, network and e-mail use, and to access and disclose any information stored on Brookfield's systems or transmitted using Brookfield's networks, with or without the knowledge of the user." (NYSCEF No. 110 at 13, ¶ 3.1.4.) It further provides that "[t]here should be no expectation of privacy relating to communications and information accessed or distributed using Brookfield's Internet and e-mail resources or stored on a local hard drive or on the network." (Id.) Moreover, the policy allows "limited personal use for communications with family; independent learning and public service." (Id. at ¶ 3.1.2.) It does not provide for personal use, like managing a condominium. Under these circumstances, McCuaig had no reasonable expectation of privacy with respect to emails in his work account. (See Peerenboom, 148 AD3d at 532 [finding an individual lacked reasonable expectation of privacy due to company policy provisions].)

Plaintiffs' motion to compel Brookfield to produce the remaining emails is granted. The cross-motion to quash the subpoena is denied.

Accordingly, it is

ORDERED that defendants' motion for Part 130 sanctions is denied; and it is further

ORDERED that plaintiffs' motion to compel is granted as described above; and Brookfield must produce the remaining responsive McCuaig emails as plaintiffs requested in their subpoena; and it is further

ORDERED that defendants' cross-motion to quash the subpoena is denied.