Genesis REOC Co., LLC v Poppel 2025 NY Slip Op 30387(U) January 31, 2025 Supreme Court, New York County Docket Number: Index No. 156733/2017 Judge: Melissa A. Crane is a well written guide to a common issue. In complex corporate (or hedge fund) transactions, whom does the attorney represent? Here the issue is whether the attorneys represented one or more than one participant.

“By this motion, plaintiffs, GENESIS REOC COMPANY (Genesis Reoc), LLC, JAZZ
REALTY II, LLC, individually and on behalf of Genesis REOC Company, LLC, and Jazz Genesis II, LLC, and JAZZ GENESIS II, LLC, move to compel defendants to produce
documents defendants have designated as privileged. For the following reasons, the court grants the motion to the extent that some limited production is warranted for an in camera review. However, the requests themselves are too broad given the emergence of a serious threshold issue—namely whether or not defendants really were plaintiffs’ attorneys.

Plaintiffs are not now entitled to every single communication defendants had with Hutson concerning the underlying transactions. Rather, at this juncture, plaintiffs are entitled to documents, if any, shedding light on the threshold issue. This is because only if defendants were actually plaintiffs’ attorneys can this lawsuit for legal malpractice proceed.

Thus, this motion presents somewhat of a catch-22 problem. This is because, whether
plaintiffs are entitled to the documents turns on whether they were a client of defendants, yet, the proof of whether plaintiffs were clients could very well depend on some of the documents defendants want to shield as privileged.

Defendants contend that they should not have to produce because plaintiffs were never
their clients. They contend that their true client was Karim Hutson and that producing the documents plaintiffs have demanded would violate the attorney-client privilege with Hutson.”

“For example, EDOC 193 starts out as an email, dated January 31, 2013, from defendant
Poppel to Andy Stone, the principal of Genesis REOC and Jazz Realty. Poppel attached various documents pertinent to an imminent real estate deal. About 15 minutes later, Mr. Stone replied complaining about the volume of paperwork and stating “Stu, as our attorney on this and looking out for my best interests, can you rep that I should have NO concerns with any of these since clearly, there is no time to review them? Don’t I need to get another attorney involved?” [EDOC 193 pg 3 (emphasis added)].

Mr. Poppel wrote back later that evening to provide summaries of the documents. At no
point did he even try to correct the impression Mr. Stone had that Poppel was his attorney “looking out for [his] best interests.” In fact, Mr. Poppel acted akin to Mr. Stone’s attorney by providing these summaries, including legal conclusions, of the documents he had sent earlier that day.

EDOC 191 is also illuminating. On January 16, 2013, Hutson wrote an email to a third
party in which he cc’d Stone and Poppel:
“Rich, [h]ere are the docs for Jazz. You can ask Stu Poppel, our deal attorney, any
questions. Stu, Rich is Andy’s CFO and is settling up the accounts.” (emphasis added)

Clearly, Mr. Hutson believed that Poppel was both his lawyer and Mr. Stone’s.
Next, EDOC 199 includes an October 2014 email from Mr. Williams to Hutson, Stone
and Poppel. Williams writes:
“To all: I attach an email I received from the ADC representative last night. I am
available to discuss all day except the period from noon to 2:00pm. Charles.”

Later that day, Mr. Williams sent another email to Poppel, Hutson and Stone. The subject line of the email reads “confidential.” The email discussed the negotiations between ADC and Genesis with Williams writing:
“[w]hile the references to the numbers other than 1 & 8 are important for the negotiation of the sales agreement, I don’t think the time to raise them is now. I advise that we wait until (if?) ADC commits to the fundamental pre condition that they provide a number for the consideration of Genesis as the basis for negotiations.” (emphasis added)
Williams continues:
“… it’s ADC obligation and burden to develop and provide to Genesis for
consideration a new structure for the Project…” Williams ends the email saying, “I’m
drafting a reply to the Ralph Dawn email for consideration.”
These emails reflect that Williams was providing legal and business advice on the underlying deal to individuals who included Stone.”

“ORDERED THAT the court grants the motion to the extent that defendants are to take
another look at the documents they have held back on the grounds of privilege to isolate those documents that bear on the issue of whether or not plaintiffs are defendants’ clients, and otherwise denies the motion; and it is further
ORDERED THAT, upon that review, defendants are to send these documents to the court
in hard copy for an in camera review;”