WILLIAM S. BESLOW
New York County Clerks Index No. 161624/14
KATHERINE NELSON,
Plaintiff-Appellant,
against
ROBERT ROSENKRANZ,
Defendant-Respondent.
Conclusion ...............................................................................................................29
i
TABLE OF AUTHORITIES
Cases
Blake-Veeder Realty, Inc. v. Crayford, 110 A.D.2d 1007 (3rd Dept 1985) ..........14
Caren Ee. V. Alan Ee., 124 A.D.3d 1102 (3rd Dept, 2015) ....................................26
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256 (10th
Cir. 2004) .................................................................................................................26
Giordano v. White Castle System, Inc., 170 A.D.2d 279 (1st Dept 1991) .............16
Menzel et. al. v. Plotnick, et. al., 202 A.D.2d 558 (2nd Dept 1994) ......................16
ii
Perricone v. Perricone, 292 Conn. 187 (2009) ................................................. 23-25
Speken v. Columbia Presbyterian Medical Center, 305 A.D.2d 489 (1st Dept
2003) ........................................................................................................................22
Wanger v. Zeh, 45 Misc.2d 93 (Sup. Ct Albany Co. 1965), affd, 26 A.D.2d 729
(3rd Dept 1966) ........................................................................................................14
Wyckoff et. al. v. Searle Holdings Inc., 111 A.D.3d 546 (1st Dept 2013) ..............18
Other
iii
Plaintiff-appellant, Katherine Nelson (Ms. Nelson) respectfully
submits this brief in support of her appeal from the Decision and Order of the court
below (Hon. Gerald Lebovits, J.) dated May 26, 2016 (R. at 6-13).
STATEMENT OF FACTS
and exchanging Facebook messages and email messages about numerous matters,
including sex, politics, literature, and finance, Mr. Rosenkranz was married to his
wife. R. at 39-41.
and CEO of Delphi Financial Group and a public figure who is the subject of
articles in major newspapers provided for Ms. Nelsons living expenses and
On April 25, 2014, Ms. Nelson and Mr. Rosenkranz met at the Core
Club. R. at 251. After telling Mr. Rosenkranz that she had consumed a few
glasses of champagne at lunch at Harry Cipriani Restaurant and that she felt
tipsy, Mr. Rosenkranz ordered Ms. Nelson a glass of wine and Ms. Nelson
drank it. Id. Then, Mr. Rosenkranz took from the breast pocket of his jacked a
2
Mr. Rosenkranz told Ms. Nelson that he needed to postpone his
impending divorce from his wife and needed more time to sort out his financial
affairs. He then exhibited the folded piece of paper to Ms. Nelson. The folder
piece of paper is titled, AGREEMENT. The essential terms of the folded piece
(a) Ms. Nelson would release Mr. Rosenkranz from any claims
(c) Ms. Nelson would not discuss her relationship with Mr.
Rosenkranz or any information she may have learned about him to anyone; and
(a) through (c) above, Mr. Rosenkranz would pay the sum of $100,000 to Ms.
Nelson, $54,000 of which would be paid upon execution of the Agreement and the
1The Agreement does not contain a reciprocal waiver by Mr. Rosenkranz. Thus, he implicitly
retained any and all claims he might have against Ms. Nelson.
3
The Agreement expressly addressed the consequence of a breach of
R. at 49.
In her state of tipsiness (of which Mr. Rosenkranz was aware, and to
had no opportunity to review the Agreement and give due consideration to its
terms, to discuss the Agreement with anyone, or to seek advice from anyone as to
began to kiss and caress Ms. Nelson and he expressed his sexual intention. R. at
with Ms. Nelson. R. at 41; 253. The intimate personal relationship between Mr.
2
In its decision and order disposing of a motion by Mr. Rosenkranz to dismiss Ms. Nelsons
Verified Complaint in this action, dated August 3, 2015 (the Wooten Decision) the lower
Court (Hon. Paul Wooten, J.S.C.) stated that Ms. Nelson does not dispute her receipt of
$54,500.00 upon her execution of the Agreement. R. at 82. There is no support in the record for
this statement. Ms. Nelson denied having received any money upon execution of the Agreement.
R. at 254-255.
4
Rosenkranz and Ms. Nelson continued until Ms. Nelson ended it, upon seeing Mr.
Summary of Litigation
Ms. Nelson in the Family Court of the State of New York, County of New York
campaign of harassment and coercion against him by Ms. Nelson. R. at 73. The
Nelson from, among other things, communicating with Mr. Rosenkranz, directly or
indirectly, and posting any material about Mr. Rosenkranz on the internet or any
to set aside and invalidate the Agreement on numerous grounds. Mr. Rosenkranz
moved this Court for an order sealing the file in this action (Motion Sequence No.
After the Family Court granted Ms. Nelsons motion to modify the
Family Court TOP on the ground that the Family Court lacked jurisdiction to issue
5
a temporary order of protection, Mr. Rosenkranz moved the lower Court for an
(Motion Sequence No. 3.).3 Id. On February 13, 2015, the lower Court (Hon.
Joan B. Lobis, J.S.C.) issued an order temporarily restraining Ms. Nelson from
actions taken by Ms. Nelson, Mr. Rosenkranz moved the lower court for an order
holding Ms. Nelson in contempt for her alleged violation of the Supreme Court
held that Ms. Nelsons complaint had stated a viable cause of action for breach of
contract regarding the full payment due under the Agreement. R. at 82. After
3
On May 29, 2015, Mr. Rosenkranz withdrew his family offense petition, and on June 1, 2015,
his counsel wrote a letter notifying the lower Court of such withdrawal. R. at 244.
6
stating, albeit erroneously, that Ms. Nelson did not dispute that she had received
Agreement, Justice Wooten noted that there was a factual dispute as to what
additional amount of money, if any, had been paid by Mr. Rosenkranz to Ms.
Nelson pursuant to the Agreement and account of the balance due Ms. Nelson.
Thus, the Decision states that . . . there is a question of fact as to whether [Ms.
Nelsons] receipt of the check of $32,500.00 was in full payment of the balance of
of the action, finding that Ms. Nelson had violated the terms of the Agreement. R.
at 86-87.
determine whether Ms. Nelson was guilty of civil and/or criminal contempt
because there were factual issues as to whether [Ms.] Nelson willfully disobeyed
the TRO and, if so, the punishment therefor, as well as whether actions taken by
R. at 89.
Preliminary Conference Order setting dates for the parties depositions, Mr.
7
counsel that he would appear for his deposition and despite ongoing efforts by Ms.
the lower Court for summary judgment (that he had paid $100,000 to plaintiff in
complete compliance with his obligation under the Agreement) or, in the
his answer denying that part of his Answer which had denied the breach of contract
claim and cure his breach of the Agreement by remitting to Ms. Nelson whatever
amount the lower Court deemed necessary in order to enable him to complete
(albeit not in compliance with the July 15, 2014 outside date prescribed in the
Agreement for payment of the balance of the $100,000 due Ms. Nelson) the
$100,000 payment due Ms. Nelson under the Agreement (Motion Sequence No.
7). R. at 18-21.
of the State of New York, County of New York, Motion Sequence No 7. was
assigned to the new I.A.S. Justice in Part 7, Hon. Gerald Lebovits, J.S.C. R. at 12.
Oral Argument on Motion Sequence No. 5 took place on April 13, 2016. R. at
391-428.
incident which had allegedly occurred during the preceding weekend in which Ms.
See, R. at 399.
that Ms. Nelson had harassed Mr. Rosenkranzs ex-wife and, in effect, had invaded
her home:
9
Mr. Rosenkranzs ex-wife] and figuratively, might
even be crossing the Rubicon.
MR. BESLOW: I dont know the facts. I just heard this when your
Honor heard this from Mr. Bronstein; but its,
obviously a fair question.
R. at 412.
Nelson by his reference to a purported fact not before the lower Court, Mr.
stated what his ex-wife had allegedly told him and (b) Mr. Rosenkranz attached an
email unsworn from his ex-wife as to the alleged incident which he had
affidavit.
415-416. After Mr. Rosenkranzs counsel said that he wished a ruling, Justice
R. at 417.
R. at 417.
notice to Ms. Nelson or her counsel and without Ms. Nelson having an opportunity
knew, neither Ms. Nelson nor Mr. Rosenkranz was present in Court for oral
argument [see, R. at 391, 401)]), clearly and improperly skewed Justice Lebovits
analysis of the issues before him for in that portion of his Decision and Order
dated May 26, 2016 (the Lebovits Order) in which he granted a permanent
injunction against Ms. Nelson, Justice Lebovits wrote: She even visited
exists. Plaintiff will likely continue her behavior without an injunction. R. at 12.
(Emphasis added)
11
e. Justice Lebovitss Decision
the ground that there existed a material issue of fact, namely, whether Mr.
Rosenkranz had paid the remaining $45,500 due Ms. Nelson under the Agreement
(R. at 10)4;
judgment and rejecting Ms. Nelsons claim for rescission of the Agreement,
injunction, failing to address pertinent authority, cited below, which sets forth the
careful factual analysis which courts must undertake in order to rule whether a
4
As described below, the Lebovits Decision unfairly held that Justice Wootens Decision,
insofar as it had found that Ms. Nelson had not disputed receipt of $54,500 upon execution of
the Agreement was the law of the case, and that he was compelled to honor such finding
even though the record fails to support such finding and unfairly noted that Ms. Nelson could
have brought a motion to renew or reargue if she disputed the finding, even though the Wooten
Decision had held that there was a material issue of fact as to Mr. Rosenkranzs alleged breach of
the Agreement. R. at 8.
5
As described below, rescission of the Agreement would have restored Mr. Rosenkranz to
precisely the position he had been in immediately prior to execution of the Agreement: Ms.
Nelson had a first amendment right to disclose information about him and he had no right to seek
a prior restraint on such disclosure or dissemination of information.
12
person has intelligently, knowingly, and voluntarily waived his or her first
Preliminary Conference Order which had directed him to appear for his deposition;
R. at 11-13.6
6
Mr. Rosenkranz withdrew Motion Sequence No. 4., his motion to hold Ms. Nelson in contempt.
R. at 12-13.
13
ARGUMENT
I.
jurisprudential concept of a day in court, New York courts have enunciated rules
placing a greater burden upon the party seeking summary relief than upon the
person opposing such relief. E.g., Wanger v. Zeh, 45 Misc.2d 93 (Sup. Ct Albany
Co. 1965), affd, 26 A.D.2d 729 (3rd Dept 1966) (A remedy which precludes a
litigant from presenting his evidence for consideration by a jury, or even a Judge,
is necessarily one which should be used sparingly, for its mere existence tends to
the requirement of the rule should be strictly complied with in order to entitle a
party to that relief. [Citation omitted] To grant summary judgment, it must clearly
appear that no material and triable issue of fact is presented. This drastic remedy
should not be granted where there is any doubt as to the existence of such issues.
14
[Citations omitted] . . . ) The reason for this public policy consideration is simple:
matter of law; the opponent must establish only the existence of a triable issue of
acceptable excuse for his failure to meet the strict requirement of tender in
Realty, Inc. v. Crayford, 110 A.D.2d 1007 (3rd Dept 1985); Moskowitz v.
remedy and should not be granted where there is any doubt as to the existence of a
triable issue.)
his or her entitlement to relief as a matter of law, the opposing party need only
show the existence of facts sufficient to raise an inference that his or her claim has
15
e. Where there is a question as to the credibility of the movant,
and particularly where certain facts are within the exclusive knowledge of the
movant, a court should deny a motion for summary judgment. E.g., Giordano v.
White Castle System, Inc., 170 A.D.2d 279 (1st Dept 1991); Castillo v. General
Accident Insurance Company of America, 111 A.D.2d 112 (1st Dept 1985);
motion must be scrutinized carefully in the light most favorable to the party
opposing the motion. Menzel et. al. v. Plotnick, et. al., 202 A.D.2d 558 (2nd Dept
1994).
party moving for summary judgment. If he or she fails to meet that burden, the
Based upon the foregoing principles and taking into account the facts
that (1) the Wooten Decision had already found that there exist triable issues of
16
fact, (2) Ms. Nelsons sworn statements, which the lower Court was constrained to
accept as truthful, proved that Mr. Rosenkranz had breached the Agreement, and
(3) Mr. Rosenkranz had not filed a sworn statement disputing any statements made
by Ms. Nelson with reference to the Agreement, and notwithstanding his palpable
bias against Ms. Nelson, Justice Lebovits was constrained to deny Mr.
17
II.
Justice Lebovits cited and relied upon the decision of this Court in Wyckoff et. al.
v. Searle Holdings Inc., 111 A.D.3d 546 (1st Dept 2013). The lower Courts
In Wyckoff et. al. v. Searle Holdings Inc., supra, the defendant had
defendants entities, and the parties agreeing to mutually release each other with
regard to any obligation and claims up to the date of agreement. 111 A.D.3d at
546. After defendants had paid plaintiffs only $55,000, plaintiffs commenced an
action seeking rescission of the agreement and revival of their original claims
remedy of law and that restoration of the status quo was impracticable. Ibid.
Here, the facts are different than those in Wyckoff et. al. v. Searle
such judicial restraint would have constituted a prior restraint on Ms. Nelsons first
Rosenkranz faced the specter that Ms. Nelson might publish information or
disseminate information about his family or him to the public and that his only
recourse, in such event, would be to seek judicial relief in the event that he
believed that Ms. Nelsons actions were tortious and caused him to suffer
reputational damage.
The record shows that Mr. Rosenkranz may not have paid any sum of
First, although the Lebovits Decision cites the law of the case
to bind Ms. Nelson to Justice Wootens finding that she had received $54,500 upon
the signing of the Agreement, the doctrine of the law of the case did not compel
Justice Lebovits to disregard a fact known to him; namely, that Justice Wooten had
been in error. The law of the case is not an absolute, rigid rule which mandates
19
and requires jurists to adopt findings made by another justice (or himself or
courts to decline to re-open what has had been decided. Blind application of the
law of the case to adopt an erroneous ruling and to disregard facts showing that a
prior finding had been in error is not in accord with the policy or principle of the
law of the case. See, People v. Evans, 94 N.Y.2d 499 (2000) (Law of the case
refuse to reopen what has been decided [and is] not a limit to their power [citation
a court should not ordinarily reconsider, disturb or override an order in the same
Second, as the Lebovits Decision admits, the record shows that Mr.
Rosenkranz may not have paid Ms. Nelson any sum of money, pursuant to the
Agreement or on account of money due her under the Agreement, after the date of
Thus, the record before the lower Court - especially on a motion for
summary judgment or, in the alternative, a motion for reverse summary judgment
with respect to which all possible inferences must be drawn in favor of the non-
movant, all issues must be viewed in the light most favorable to the non-movant,
all doubts must be resolved in favor of the non-movant, credibility issues must be
20
resolved in favor of the non-movant, and all doubts must be resolved in favor of
the non-movant compelled the lower Court to determine (a) that Mr. Rosenkranz
had not paid any money to Ms. Nelson pursuant to the Agreement, (b) that Mr.
Rosenkranz had not suffered any damage incident to any actions taken by Ms.
Nelson subsequent to execution of the Agreement, and (c) that it was not
In the circumstances, the lower Court should not have granted Mr.
withdraw that portion of his Answer which had denied Ms. Nelsons claim for
breach of contract and rejecting Ms. Nelsons claim for rescission of the
Agreement.7
7
Here, as elsewhere, it appears that Justice Lebovitss antipathy towards Ms. Nelson arising out
of her alleged harassment of Mr. Rosenkranzs ex-wife (who, technically, is not a member of Mr.
Rosenkranzs family the class of individuals ostensibly entitled to protection under the
Agreement) caused Justice Lebovits to deny equitable relief to Ms. Nelson but to grant equitable
relief to Mr. Rosenkranz.
21
III.
injunction, the Lebovits Decision glossed over and entirely ignored the fact that the
Agreement was entirely silent as to the issue of injunctive relief and that the facts
executing the Agreement, Ms. Nelson had not intelligently and knowingly waived
her first amendment rights, and that injunctive relief would constitute a prior
Ms. Nelson does not dispute the fact that under New York law, a
person has the right to waive statutory and constitutional rights, including his or
her right of free speech under the New York Constitution and under the U.S.
(1st Dept 2003); Williams v. Bright, 230 A.D.2d 548 (1st Dept 1997); Anonymous
v. Anonymous, 233 A.D.2d 162 (1st Dept 1996); Trump v. Trump 179 A.D.2d 201
(1st Dept 1992). The waiver, however, must be both intelligent and voluntary.
See, Johnson v. Zerbst, 304 U.S. 458 (1938) (The determination of whether there
has been an intelligent waiver . . . depend[s], in each case, upon the particular facts
and circumstances surrounding that case, including the background, experience and
22
conduct of the [waiving party]; Fran v. Fed. Ins. Co., 70 N.Y.2d 966, 968 (1988)
(Waiver requires a strong and clear showing of intent to waive.); Orange Steel
Erectors Inc. v. Newburgh Steel Prods., 225 A.D.2d 1010, 1012 (3rd Dept 1996)
York authority addressing the care with which a court should examine facts in
Perricone v. Perricone, 292 Conn. 187 (2009) a case decided by the Supreme
disseminating any information about him or the parties divorce proceedings, based
conduct of a hearing, the court decided that defendant had intelligently and
knowingly waived her first amendment rights. In making this finding, the court
23
After execution of the confidentiality agreement, the parties appeared
before the court for an allocution and during the course of the allocution,
defendant admitted that she had read the confidentiality agreement and had
discussed it with her counsel; that she had had adequate time to review the
confidentiality agreement with her counsel before signing it; that she did not
indicate that anyone had force her to enter into the agreement; that, as of the time
of the allocution, she was okay with the confidentiality agreement; after her
counsel had summarized for defendant the terms of the confidentiality agreement
and the court asked defendant if that were her understanding, defendant responded,
yes: and defendant joined plaintiff in asking the court to make the confidentiality
In setting forth the ground rules underlying its analysis, the court
Here, it is clear that Ms. Nelson did not intelligently and knowingly
24
First, Mr. Rosenkranz had not given her a copy of the Agreement
Second, Mr. Rosenkranz was aware that Ms. Nelson was tipsy at the
time he presented her with a copy of the Agreement for execution, and in fact had
ordered her an additional alcoholic beverage, which she consumed, prior to his
Ffifth, Mr. Rosenkranz misled Ms. Nelson with respect to the nature
Sixth, there was not bargaining equality between Mr. Rosenkranz and
Ms. Nelson.
possibility that Ms. Nelsons waiver of her first amendment rights was intelligent
and voluntary. For example, the Agreement addresses the issue of a breach by Ms.
Nelson and provides for only one consequence: forfeiture of Ms. Nelsons right to
receive the balance of the sum due her. The Agreement is entirely silent as to
issuance of injunctive relief despite the fact that clauses pertaining to irreparable
25
harm and injunctive relief are boilerplate language in confidentiality and non-
disclosure agreements, and that such clauses even when included are
See, e.g., Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256
Rosenkranz might have the right to seek injunctive relief from a court to enforce
rights he might have under the Agreement and that as a consequence thereof, she
might find herself in precisely the position she found herself in this action: facing a
motion to incarcerate her for her alleged engagement in criminal contempt, for
agreement and thereafter seeking the judicial imprimatur of a court with respect
thereto. Here, the lower Court entirely ignored the issue whether Ms. Nelson had
intelligently and voluntarily waived her first amendment rights by signing the
Agreement.
also instructive. In Caren Ee. V. Alan Ee., 124 A.D.3d 1102 (3rd Dept, 2015), the
26
Court analyzed whether an ex-husband was entitled to injunctive relief against an
ex-wife, in a case where the parties had agreed that any books or movies
agreement and the ex-wife published a book that heavily referenced the parties
son without getting the consent of her husband. Id. at 1102. The Court held as
follows:
on Ms. Nelsons first amendment right to free speech, which she did not knowingly
and intelligently waive given the specific fact pattern resulting in her signing the
Agreement.
27
Finally, as mentioned above, the determination by the lower Court to
supplemental affidavit and to accept, as true, the hearsay and double hearsay
statements contained therein, and to cite the facts contained in the supplemental
affidavit to support its grant of a permanent injunction, based upon its belief that
28
IV.
CONCLUSION
For the reasons set forth above, the Court should modify and reverse
the Lebovitz Order so as to deny Mr. Rosenkranz's motion for reverse summary
Respectfully Submitted,
By:
Willia:esiOW ----
Attorney for Plaintiff-Appellant
623 Fifth Avenue
New York, New York 10022
29
APPELLATE DIVISION FIRST DEPARTMENT
PRINTING SPECIFICATIONS STATEMENT
Times New Roman; Point Size 14; Line spacing double. The total number
William S. Beslow
Attorney for Plaintiff-
Appellant Katherine Nelson
623 Fifth Avenue, 24th floor
New York, NY 10022
(212) 698-1171
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
---------------------------------------------------------------)(
KATHERINE NELSON, Index No.
ROBERT ROSENKRANZ,
Defendant-appellant
---------------------------------------------------------------)(
Pursuant to Section 600.'17 of the Rules ofthe Supreme Court of the State ofNew York,
Appellate Division, First Department, defendant-appellant, Katherine Nelson, sets forth the
Rosenkranz, defendant. There has not been any change in the parties to the action. The full
names ofthe original parties are Katherine Nelson, plaintiff and Robert Rosenkranz, defendant.
4. This appeal is taken from the Supreme Court ofthe State ofNew York,
5. This appeal is from a decision/order dated May 26, 2016 (Gerald Lebovits,
J.S.C.) and entered in the office of the Clerk ofNew York County on May 31,2016.
parties dated April24, 2014 (the "Agreement") by reason of defendant's willful breach thereof.
9. The result below is that although the court below found that defendant had
materially breached the Agreement, it declined to rescind the Agreement and, instead, granted
"reverse summary judgment" allowing defendant to cure his material breach of the Agreement
by paying to plaintiffthe sum of$45,500. In addition, the court below granted defendant
injunctive relief enjoining plaintiff from (a) contacting or otherwise communicating with
defendant or with any member of his family by any means whatsoever and (b) from telling
anyone, including discussions in person, by email, on the Internet, over social media, or by
publication in any manner whatsoever, about the parties' relationship or anything plaintiff may
part, (i) on impermissible credibility determinations made by it and (ii) on its failure to take into
upon the prior decision and order of Justice Wooten, which itself constitutes "reversible error,"
to the Agreement.
d. Having found that defendant-respondent had materially breached the
Agreement, the lower court below by not rescinding the Agreement, as requested by plaintiff in
her complaint, because- contrary to the decision and order of the court below- (i) defendant-
respondent had not partially performed his obligation under the Agreement, (ii) the status quo
between the parties could be restored because neither of the parties had made an irreversible
change of position as to any matter in reliance on the Agreement, and (iii) plaintiff-appellant did
plaintiff-appellant as facts, even though there had never been a determination that
f. The court below erred by expanding the word "family," as used in the