Aberbach-Marolda v Cherner 2026 NY Slip Op 02089 April 8, 2026 Appellate Division, Second Department is a real curiosity. A star appellate team for Defendant-Appellant, appealing from a negative outcome at a very rare legal malpractice trial and what seems to be an uninsured attorney Plainitff. Much seems to turn on evidentiary missteps prior to trial.

“In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Westchester County (William J. Giacomo, J.), dated August 13, 2019. The judgment, (1) upon an order of the same court (Joan B. Lefkowitz, J.) dated April 30, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records, granting that branch of the defendant’s motion which was to compel the plaintiff Susanne Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and granting that branch of the motion of the plaintiff Susanne Aberbach-Marolda and Doris T. Friedman which was to preclude the defendant from introducing at trial video recordings of the deposition of the plaintiff Susanne Aberbach-Marolda, (2) upon an order of the same court (Joan B. Lefkowitz, J.) dated December 17, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne-Aberbach Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain telephone records, (3) upon an order of the same court (Joan B. Lefkowitz, J.) dated March 6, 2019, denying the defendant’s motion to vacate the note of issue and trial readiness order, and (4) upon a jury verdict, is in favor of the plaintiff Susanne Aberbach-Marolda and against the defendant in the principal sum of $56,148.98 and, in effect, dismissed the defendant’s counterclaims. Justice Ford has been substituted for former Justice Zayas (see 22 NYCRR 1250.1[b]).”

“This appeal stems from a fee dispute. In September 2013, the defendant retained the plaintiff Susanne Aberbach-Marolda to represent him in a matrimonial action. At the same time, with the knowledge and consent of the defendant, Doris T. Friedman became of counsel to Aberbach-Marolda on the matrimonial action. The representation of the defendant by Aberbach-Marolda and Friedman included a multiday nonjury trial on the issues of equitable distribution and culminated in a judgment of divorce entered January 21, 2016 (see Ospina-Cherner v Cherner, 178 AD3d 1059). In June 2016, Aberbach-Marolda and Friedman commenced this action against the defendant, inter alia, to recover damages for breach of contract, alleging that the defendant had not paid the majority of his attorneys’ fees. The defendant interposed an answer containing 35 counterclaims, including counterclaims to recover damages for legal malpractice.

After court conferences were conducted in October and December 2017, the defendant moved, among other things, to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records. Aberbach-Marolda and Friedman moved, inter alia, to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. In an order dated April 30, 2018, the Supreme Court, among other things, granted that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition, granted that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and denied those branches of the defendant’s motion which were to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records.”

“The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a new deposition on 12 specific lines of inquiry. To the extent that the defendant requested an additional deposition beyond what was directed, his request was without merit. Further, the court did not improvidently exercise its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda pay the fees and costs associated with her first deposition, as she neither left the deposition early nor refused to answer clear questions (cf. O’Neill v Ho, 28 AD3d 626).

Furthermore, the Supreme Court did not err in granting that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. Pursuant to a compliance conference order dated December 20, 2017, Aberbach-Marolda’s deposition was scheduled to be conducted in New York on February 2, 2018, and pursuant to a stipulation of the parties, if Aberbach-Marolda’s deposition continued after that date, it would be continued by video while she was in South Carolina. One day prior to Aberbach-Marolda’s deposition in New York, the defendant’s attorneys sent a fax to Aberbach-Marolda confirming that the deposition would be videotaped, without including any information regarding the videotape operator. Aberbach-Marolda and Friedman objected to the video deposition but ultimately participated.

Section 202.15 of the Uniform Rules for the New York State Trial Courts requires that “[e]very notice or subpoena for the taking of a videotaped deposition shall state that it is to be videotaped and the name and address of the videotape operator and of the operator’s employers, if any” (22 NYCRR 202.15[c]). CPLR 3107 requires a party desiring to take the deposition of another person to give each party 20 days’ notice. The interplay between 22 NYCRR 202.15(c) and CPLR 3107 requires that a videotaped deposition must be properly noticed at least 20 days prior. As the

defendant’s deposition notice was procedurally improper, the Supreme Court did not err in precluding the introduction at trial of video recordings of Aberbach-Marolda’s deposition (see id. § 3103[c]).”

“The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to provide a sworn statement detailing all claims made on her malpractice insurance policy during the time that she represented him. Such a statement would have no probative value in this case, where it is undisputed that Aberbach-Marolda’s malpractice insurance policy lapsed in September 2014, well prior to the defendant’s claims.

The Supreme Court also providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to produce certain bank and telephone records. The defendant does not deny that Aberbach-Marolda and Friedman had produced documents in response to his request for bank records, and there is no indication in the record that there were any requests outstanding in this regard. As for Aberbach-Marolda’s telephone records, the defendant’s motion provided little explanation as to why these records are relevant to his case. Under the circumstances, where the court was “actively involved in managing the case and [was] intimately familiar with the particularities of the matter,” there is no basis in this record to disturb the determination that the defendant’s request for Aberbach-Marolda’s telephone records amounted to nothing more than a fishing expedition (Auerbach v Klein, 30 AD3d 451, 452).”