Sara Tirschwell for Mayor, Inc. v. Kramer

Sara Tirschwell for Mayor, Inc. v Kramer 2024 NY Slip Op 30023(U) January 4, 2024 Supreme Court, New York County Docket Number: Index No. 154123/2021 Judge: Sabrina Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57TR Justice -----------------------------------------------------------X INDEX NO. 154123/2021 SARA TIRSCHWELL FOR MAYOR, INC.,SARA MOTION DATE 11/21/2023 TIRSCHWELL

Plaintiff, MOTION SEQ. NO. _ _ _00_2_ __

- V- DECISION + ORDER ON STEVE KRAMER D/B/A GET OUTTHE VOTE, MOTION Defendant. ------------------------ ---------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 71, 72, 73, 74, 75, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100,101,102, 103, 104, 105, 106, 107, 108,109,110, 111,112,113 were read on this motion to/for STRIKE PLEADINGS

BACKGROUND

Plaintiffs commenced this action alleging breach of contract against defendant whom

they hired to collect the signatures needed to get Sara Tirschwell (Tirschwell) on the June 22,

2021, Republican mayoral primary ballot in New York City. Defendant's counterclaim for

defamation was dismissed by decision and order dated September 30, 2022.

Pursuant to a status conference order that was so-ordered by the court dated July 26,

2023, plaintiffs were ordered to provide the following to defendant:

-Plaintiff to provide an affidavit as to the current status of the plaintiff corporation SARA TIRSCHWELL FOR MAYOR. INC., within 30 days -Plaintiff to provide a copy of the retainer between plaintiff and Mr. Mandelker, redacted as to privileged information, within 30 days -Plaintiff to provide a response to Defendants request for proof of expenses as alleged in the complaint, besides the document provided to the campaign finance board, within 30 days -Plaintiff to provide the names of the witnesses referenced by Plaintiff in her deposition or an affidavit that Plaintiff does not intend on calling them at trial, within 30 days

154123/2021 SARA TIRSCHWELL FOR MAYOR, vs. STEVE KRAMER D/B/A GET Page 1 of 10 Motion No. 002

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person-hours, and all together, even including those from individuals who did not work as

"petitioners," reflect work totaling just 1,261 person-hours.

Defendant obtained a total of only 4,454 signatures for plaintiffs. Of those, all but 546

were deemed invalid by the New York City Board of Elections. On or about April 14, 2021, the

New York City Board of Elections determined that Tirschwell did not have the necessary

number of valid signatures required for a spot on the June primary ballot.

DISCUSSION

Defendant's Motion to Strike

Defendant brought its motion on the basis of plaintiffs' alleged failure to produce

documentation of their damages, including documents underlying expenses submitted to the

Campaign Finance Board, and attorney retainer agreements and invoices, despite discovery

orders requiring them to do so.

In opposition, plaintiffs produced documentation of expenses that were filed with the

Campaign Finance Board, and claim the delay was due to difficulty accessing the documents on

the Campaign Finance Board website.

In reply, defendant claims that the production is insufficient, particularly with respect to

legal bills and retainer letters which it claims were not provided despite court orders. In the event

the court does not strike plaintiff's complaint, defendant requests an order compelling production

by a date certain.

CPLR § 3 l0l(a) provides for the "full disclosure of all evidence material and necessary

in the prosecution or defense of an action regardless of the burden of proof' CPLR § 3124 grants

the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the

court the power to sanction a party that fails to comply with a court's discovery order.

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"The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 is a matter

within the discretion of the court. Gorbatov v Tsirelman, 206 AD3d 887 (2d Dept 2022). The

striking of a pleading is a drastic remedy and is only warranted where a clear showing has been

made that the noncompliance with an order was willful, contumacious or due to bad faith. Mateo

v City of New York, 274 AD 2d 337 (1st Dept 2000).

Here, while plaintiffs claim they have now fully complied with the court's discovery

order, defendant claims there remain documents that have not been provided. Plaintiffs' conduct

is not sufficiently willful and contumacious as to warrant the striking of the complaint, as it is

undisputed that plaintiff has been actively participating in discovery and has provided at least

some of the documents that defendant has requested. Additionally, as the remaining documents

sought by defendant speak primarily to plaintiffs' alleged damages, the more appropriate remedy

would be an order precluding them from using them as evidence of damages at trial in the event

they are not produced by a date certain.

Thus, defendant's motion is granted to the extent that plaintiffs are compelled to produce

any additional proof of expenses as alleged in the complaint, including attorney invoices and

retainers, within 30 days, or otherwise be precluded from using any documents it fails to produce

to support its damages pursuant to CPLR § 3126(2).

Plaintiff's Cross-Motion for Summary Judgment

To prevail on a motion for summary judgment, the movant must establish,primafacie,

its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the

absence of any triable issues of fact. CPLR § 3212(b); Matter of New York City Asbestos Litig.,

33 NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible

form demonstrating the existence of factual issues requiring a trial; "conclusions, expressions of

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hope, or unsubstantiated allegations or assertions are insufficient." Justinian Capital SPC v

WestLB AG, 28 NY3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed Ins. Co., 70 NY2d

966, 967 (1988). In deciding the motion, the evidence must be viewed in the "light most

favorable to the opponent of the motion and [the court] must give that party the benefit of every

favorable inference." 0 'Brien v Port Auth. ofNew York and New Jersey, 29 NY3d 27, 37 (2017).

Plaintiffs seek partial summary judgement on their sole remaining claim for breach of

contract, contending that it is undisputed that defendant breached the contract by failing to

Employ 26 "petitioners" for a total of 2470 hours as stipulated in the contract, as defendant's

own records reflect that Defendant employed fewer than 17 Petitioners who worked a total of

only 472.5 person hours, or 1261 hours if the work of employees of defendant who were not

identified as petitioners are counted. While plaintiffs concede that there remain issues of fact

relating to its consequential damages stemming from plaintiffs' failure to get on the ballot, they

contend that there is no question that defendant breached the contract, and thus there are entitled

to at least the amount they paid defendant.

In opposition, defendant produces additional timesheets2 , which it avers brings the total

number of person hours worked to over 2,5003, and thus there remain issues of fact as to

defendant's substantial or complete performance under the contract, and whether plaintiff

frustrated the purpose of the agreement, warranting the denial of plaintiffs motion.

2 Defendant contends that its initial failure to produce these timesheets was due to logistical constraints, including that they were stored in multiple locations, and that it did not initially receive timesheets from a researcher and third party that it employed to gather signatures. 3 While defendant did not provide an exact number in its supporting papers, the total additional work hours contained within the new timesheets add up to 1272. 154123/2021 SARA TIRSCHWELL FOR MAYOR, vs. STEVE KRAMER D/8/A GET Page 6 of 10 Motion No. 002

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In reply, plaintiffs dispute that defendant's additional timesheets raise an issue of fact,

contending that the number of employees and number of hours spent petitioning on behalf of the

campaign was still well below the contracted amount.

"The essential elements of a breach of contract cause of action are 'the existence of a

contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her

contractual obligations, and damages resulting from the breach."' Canzona v Atanasio, 118

AD3d 837, 838 (2d Dept 2014), quoting Dee v Rakower, 112 AD3d 204, 208-209 (2d Dept

2013).

That the contract existed, and the fact that plaintiffs performed by paying defendant are

not disputed. For the purposes of this motion, the only breach plaintiffs seek summary judgment

on is defendant's purported failure to devote provide the number of people and man hours for

petitioning as promised in the contract and seek damages only in the amount paid under the

contract.

It is undisputed that the contract required defendant to provide "26 paid

petitioners/volunteer petitioners" who would each work 19 five hour shifts for a total of 24 70

man hours. It is further undisputed that the initial batch of timesheets produced show only 472.5

person hours by 17 individuals devoted to petitioning activities. Even assuming arguendo that all

of the timesheets produced in the latest batch relate to petitioning work, and it is not clear that

they are, defendant has provided evidence of at most 1744.5 man hours spent petitioning,

significantly below the contracted for amount. Thus, plaintiffs meet their prima facie burden of

establishing the existence of a breach as to this provision of the contract. 4

4 While defendants state that there is a material issue of fact as to whether this constitutes substantial performance, they make no arguments in support of this contention. 154123/2021 SARA TIRSCHWELL FOR MAYOR, vs. STEVE KRAMER D/8/A GET Page 7 of 10 Motion No. 002

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In opposition, defendant fails to raise a triable issue of fact by raising the doctrine of

frustration of purpose. To invoke this doctrine, "the frustrated purpose must be so completely the

basis of the contract that, as both parties understood, without it, the transaction would have made

little sense" Shmaltz Brewing Co., LLC v Dog Cart Mgmt. LLC, 202 AD3d 659 (3d Dept 2022),

quoting Warner v Kaplan, 71 AD3d 1, 6 (1st Dept 2009). "The doctrine applies when a change

in circumstances makes one party's performance virtually worthless to the other, frustrating [its]

purpose in making the contract." Id. quoting PFF Safeguard, LLC v BCR Safeguard Holding,

LLC, 85 AD3d 506, 508 (1st Dept 2011 ).

In support of its frustration of purpose defense, Defendant only cites plaintiffs' purported

misallocation of campaign resources, leading to them purchasing a "voter file" containing only

40% of New York City Republicans as opposed to a complete file, thus impeding their efforts.

However, there is no allegation or evidence that the purchase of a complete voter file was a

contractual condition, or otherwise that doing so was so fundamental as to undermine the

purpose of the contract.

"Causation is an essential element of damages in a breach of contract action; ... a plaintiff

must prove that a defendant's breach directly and proximately caused his or her damages." Diesel

Props Sr.I. v Greystone Business Credit II LLC, 631 F3d 42, 52 (2d Cir. 2011), quoting National

Market Share v Sterling National Bank, 392 F3d 520, 525 (2d Cir. 2011). "[D]amages may not

be merely speculative, possible or imaginary, but must be reasonably certain and directly

traceable to the breach, not remote or the result of other intervening causes." Kenford Co., Inc. v

Erie County, 67 NY2d 234 (1986).

Here, Plaintiffs fail to present any argument as to how defendant's breach of the contract

provision at issue directly or proximately caused the damages they seek, effectively a complete

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refund of the contract amount. Thus, plaintiffs have failed to meet their prima facie burden of

proving that their damages stem from a breach of the contract provision at issue.

Plaintiff's Request to Inspect Original Timesheets

As alternative relief, plaintiffs seek an order compelling defendant to produce original

timesheets, raising questions as to their authenticity. Defendant disputes plaintiffs' contention

that the timesheets contain anomalies that would warrant an inspection of original documents.

At trial, the best evidence rule "requires the production of an original writing where its

contents are in dispute and sought to be proven." People v Haggerty, 23 NY3d 871, 876 (2014),

quoting Schozer v William Penn Life Ins. Co. ofNY, 84 NY2d 639,643 (1994). As such,

production of original documents for inspection is warranted where, as here, plaintiffs have

raised substantiated questions as to their authenticity.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendant Steve Kramer d/b/a Get Out the Vote's motion to strike is

granted, to the extent that plaintiff is compelled to plaintiffs are compelled to produce any

additional proof of expenses as alleged in the complaint, including attorney invoices and

retainers, within 30 days, or otherwise be precluded from using any documents it fails to produce

to support its damages, and is otherwise denied; and it is further

ORDERED that plaintiffs SaraTirschwell For Mayor, Inc. and Sara Tirschwell's cross-

motion is granted, to the extent that defendant is required to produce original timesheets for

inspection, at a time and place to be set at the next discovery conference, and is otherwise

denied; and it is further

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ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of

this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room

119); and it is further

ORDERED that counsel are directed to appear for a virtual status conference with the

court via MS Teams on February 6, 2024 at 2:30 pm; and it is further

ORDERED that such service upon the Clerk shall be made in accordance with the

procedures set forth in the Protocol on Courthouse and County Clerk Procedures for

Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address

www.nycourts.gov/supctmanh);]; and it is further

ORDERED that any relief not expressly addressed has nonetheless been considered and

is hereby denied; and it is further

This constitutes the decision and order of the court.

¹/4/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FINA[ SITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Footnotes

[1] of 10 [* 1] Additionally, defendant was ordered to produce time sheets and records of time spent by canvassers or an affidavit that what was produced is all that is in defendant's possession, within

[30] days. A discovery conference was held with the Court on September 12, 2023 wherein defendant raised issues with plaintiff's compliance with the prior order. However, no resolution was reached, and defendant was given permission to file the within discovery motion. PENDING MOTIONS On September 22, 2023, defendant moved for an order pursuant to CPLR 3126(3) striking plaintiffs' complaint and rendering a default judgment against them. (Mot. Seq. 2). On October 20, 2023, plaintiffs cross moved for an order pursuant to CPLR 3212 granting them partial summary judgment finding defendant liable for breach of contract and awarding them damages in the amount of $80,000, plus interest, or alternatively ordering defendant to produce certain original documents for inspection pursuant to CPLR §§ 3101 (a) and 3104(a). The motions are consolidated herein for determination as set forth below. UNDISPUTED FACTS As set forth in plaintiffs' Statement of material facts, to which defendant does not submit response, the following facts are deemed admitted for the purposes of plaintiffs' cross-motion for summary judgment pursuant to 22 NYCRR § 202.8-g and section II(G)(4) of the part 57 rules. Tirschwell wanted to run for Mayor of New York City in the 2021 election and, to that end, she incorporated Plaintiff Sara Tirschwell for Mayor, Inc. to be her campaign organization. Plaintiffs needed to obtain 2,250 valid signatures of qualified voters, on Designating Petitions 154123/2021 SARA TIRSCHWELL FOR MAYOR, vs. STEVE KRAMER O/B/A GET Page 2 of 10 Motion No. 002 2 of 10 [* 2] properly witnessed between March 2 and March 25, 2021, in order to get on the ballot for the 2021 Republican New York City mayoral primary election held on June 22, 2021. 1 On or about February 27, 2021, plaintiffs retained defendant to, among other things, collect the signatures needed to get Tirschwell on the 2021 Republican mayoral primary ballot. Defendant and Sarah Tirschwell for Mayor, Inc. entered into a contract dated as of February 27, 2021, pursuant to which plaintiffs paid defendant $80,000. In return, the contract provided that defendant would "implement a GOP New York Mayoral Petition Plan for Sara Tirschwell" that was to "target" acquisition of 6,200 signatures on Tirschwell' s Petitions by utilizing 26 paid "Petitioners" each working 19 five-hour shifts to obtain signatures on Tirschwell's Designating Petitions, for a total of 2,470 person-hours. Defendant acknowledges that, by law, he is required to keep accurate records of the time spent by, and payments made to, his staff that worked for plaintiffs' campaign and in what roles they worked, such as Petitioner or driver. To satisfy his obligation, defendant kept all of their timesheets which also served as his payroll records. On June 20, 2023, in response to a request for copies of "all the time sheets of petition gatherers and drivers who worked on the Tirschwell campaign ... ," defendant produced a listing of people who worked as his Petitioners and twenty timesheets. On August 25, 2023, pursuant to the Court's July 26, 2023, Order requiring defendant to confirm that all timesheets had been produced, defendant, produced fourteen additional timesheets, bringing the total timesheets produced to thirty-four, and confirming that these represented "the final batch of 'timesheets' of petition gatherers and drivers who worked on the Tirschwell campaign." The 34 timesheets reflect that the individuals who defendant identified as "petitioners" worked a total of only 472.5 1 The original petitioning requirement was 3750 valid signatures over a period of38 days, however that requirement was reduced to 2250 signatures over 24 days due to the Covid-19 pandemic 154123/2021 SARA TIRSCHWELL FOR MAYOR, vs. STEVE KRAMER D/B/A GET Page 3 of 10 Motion No. 002 3 of 10 [* 3]