To be Argued by:

WILLIAM S. BESLOW
New York County Clerks Index No. 161624/14

New York Supreme Court

Appellate DivisionFirst Department

KATHERINE NELSON,

Plaintiff-Appellant,

against

ROBERT ROSENKRANZ,

Defendant-Respondent.

BRIEF FOR PLAINTIFF-APPELLANT

LAW OFFICES OF WILLIAM S. BESLOW

Attorneys for Plaintiff-Appellant
623 Fifth Avenue, 24th Floor
New York, New York 10022
(212) 698-1171
wbeslow@wsbmatlaw.com

PRINTED ON RECYCLED PAPER

 TABLE OF CONTENTS

Table of Contents ........................................................................................................i

Table of Authorities .................................................................................................. ii
Statement of Facts ...................................................................................................... 2
The Parties Relationship and the Agreement .................................................. 2
Summary of Litigation .......................................................................................... 5
a. The Family Court Proceeding and Motion Practice in this Action ............ 5
b. The Wooten Decision ................................................................................. 6
c. The Motion for Reverse Summary Judgment ............................................. 8
d. Justice Lebovitss Bias Against Ms. Nelson, as Reflected
by His Erroneous Decision to Consider, Over the Objection
of Ms. Nelsons Counsel, a Double Hearsay Statement by
Mr. Rosenkranz, the Sole Purpose of Which was to Prejudice
Ms. Nelson in the Eyes of the Court ........................................................... 8

e. Justice Lebovitss Decision ......................................................................12

Argument .................................................................................................................14
Point I: THE COURT BELOW FAILED TO APPLY
FUNDAMENTAL PRINCIPLES OF NEW YORK
LAW WHICH APPLY TO MOTIONS FOR
SUMMARY JUDGMENT ..................................................................14
a. The General Principles Relating to a Motion for
Summary Judgment .............................................................................14
b. There Exist Genuine Issues of Fact to Be Tried ................................16
Point II: THE COURT ERRED IN DETERMINING
SUMMARILY THAT MS. NELSON WAS NOT
ENTITLED TO RESCISSION OF THE
AGREEMENT ....................................................................................18
Point III: MS. NELSON DID NOT INTELLIGENTLY AND
KNOWINGLY WAIVE HER FIRST AMENDMENT
RIGHTS...............................................................................................22

Conclusion ...............................................................................................................29

i
 TABLE OF AUTHORITIES

Cases

Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ..................................................16

Anonymous v. Anonymous, 233 A.D.2d 162 (1st Dept 1996) ................................22

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

Castillo v. General Accident Insurance Company of America,

111 A.D.2d 112 (1st Dept 1985) ..........................................................................16

Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256 (10th
Cir. 2004) .................................................................................................................26

Dondi v. Jones, 40 N.Y.2d 8, 15 (19 ) ...................................................................20

Fran v. Fed. Ins. Co., 70 N.Y.2d 966, 968 (1988) ..................................................22

Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065

(1979) .......................................................................................................................15

Giordano v. White Castle System, Inc., 170 A.D.2d 279 (1st Dept 1991) .............16

Johnson v. Zerbst, 304 U.S. 458 (1938) ..................................................................22

Menzel et. al. v. Plotnick, et. al., 202 A.D.2d 558 (2nd Dept 1994) ......................16

Moskowitz v. Garlock, 23 A.D.2d 943 (3rd Dept 1965) .........................................15

Orange Steel Erectors Inc. v. Newburgh Steel Prods., 225 A.D.2d

1010, 1012 (3rd Dept 1996) ..................................................................................23

People v. Evans, 94 N.Y.2d 499 (2000) ..................................................................20

ii
Perricone v. Perricone, 292 Conn. 187 (2009) ................................................. 23-25

Rubin v. Rubin, 33 A.D.3d 983 (2nd Dept 2006) ....................................................15

Speken v. Columbia Presbyterian Medical Center, 305 A.D.2d 489 (1st Dept
2003) ........................................................................................................................22

Trump v. Trump 179 A.D.2d 201 (1st Dept 1992) ................................................22

Vega v. Restani Construction Corp., 18 N.Y.3d 499 (2012) ..................................16

Wanger v. Zeh, 45 Misc.2d 93 (Sup. Ct Albany Co. 1965), affd, 26 A.D.2d 729
(3rd Dept 1966) ........................................................................................................14

Williams v. Bright, 230 A.D.2d 548 (1st Dept 1997) .............................................22

Wyckoff et. al. v. Searle Holdings Inc., 111 A.D.3d 546 (1st Dept 2013) ..............18

Statutes and Regulations

22 NYCRR 130-1.1 .............................................................................................7, 27

Other

David D. Siegel, McKinneys Consolidated Laws of New York Annotated

(C3212:6, p. 14) .......................................................................................................16

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

The Parties Relationship and the Agreement

The parties were involved in an intimate, personal relationship (the

Relationship) for a period of four years. R. at 8; 38-40. Throughout the course

of the Relationship, in which the parties engaged in an intimate loving

relationship which included engaging in sexual relations, attending public events,

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.

Throughout the course of the Relationship, Mr. Rosenkranz founder

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

medical expenses. R. at 246, 249.

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

folded sheet of paper. R. at 49.

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

of paper (the Agreement) are:

(a) Ms. Nelson would release Mr. Rosenkranz from any claims

she might have against him;1

(b) Ms. Nelson would not contact or otherwise communicate

with Mr. Rosenkranz or any member of his family;

(c) Ms. Nelson would not discuss her relationship with Mr.

Rosenkranz or any information she may have learned about him to anyone; and

(d) in exchange for her waiver and undertakings described in

(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

balance, $45,500 would be paid on or before July 15, 2014.

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

the Agreement by Ms. Nelson:

This Agreement is legally binding on the parties. Katherine

agrees that in the event she violates the terms, her right to receive
the balance due [$45,500] will be forfeited.

R. at 49.

In her state of tipsiness (of which Mr. Rosenkranz was aware, and to

an extent, participated in exacerbating), without the advice of counsel, and having

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

the terms of the Agreement, Ms. Nelson accommodated Mr. Rosenkranzs

insistence, and she signed the Agreement as did Mr. Rosenkranz.2

Immediately following execution of the Agreement, Mr. Rosenkranz

began to kiss and caress Ms. Nelson and he expressed his sexual intention. R. at

251-252. Notwithstanding paragraph (b) in the Agreement, during the ensuing

period of three months, Mr. Rosenkranz continued to engage in sexual relations

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.

Rosenkranz flirting with another woman. R. at 42; 258.

Summary of Litigation

a. The Family Court Proceeding and Motion Practice in this Action

In the fall of 2014, Mr. Rosenkranz commenced a proceeding against

Ms. Nelson in the Family Court of the State of New York, County of New York

(the Family Court Proceeding), seeking redress for what he alleged to be a

campaign of harassment and coercion against him by Ms. Nelson. R. at 73. The

Family Court issued an ex parte temporary order of protection enjoining Ms.

Nelson from, among other things, communicating with Mr. Rosenkranz, directly or

indirectly, and posting any material about Mr. Rosenkranz on the internet or any

other medium (the Family Court TOP). Id.

Thereafter, Ms. Nelson commenced this action. Her complaint sought

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.

1) R. at 74. Thereafter, Mr. Rosenkranz moved this Court for an order

dismissing Ms. Nelsons complaint, pursuant to CPLR 3211 (Motion Sequence

No. 2). R. at 72.

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

order enjoining Ms. Nelson from publishing or disseminating any information

about Mr. Rosenkranz or discussing her relationship with Mr. Rosenkranz

(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

engaging in such behavior pending determination of Mr. Rosenkranzs motion for

injunctive relief (the Supreme Court TOP). R. at 84. As a result of certain

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

TOP (Motion Sequence No. 4). R. at 72-73.

b. The Wooten Decision

The Wooten Decision disposed of Motion Sequence Nos. 1 4:

The Decision denied Motion Sequence No. 1, holding that Mr.

Rosenkranz had failed to show compelling circumstances that would justify

restricting public access [citation omitted]. . . . R. at 77.

The Decision granted Motion Sequence No. 2, except insofar as it

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

the initial payment of $54,500 required to be paid upon execution of the

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

$45,500.00 due under the Agreement. R. at 81-83.

The Decision granted Motion Sequence No. 3, pending determination

of the action, finding that Ms. Nelson had violated the terms of the Agreement. R.

at 86-87.

The Decision referred Motion Sequence No. 4 to a Special Referee to

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

Ms. Nelson constituted frivolous conduct, pursuant to NYCRR Section 130-1.1.

R. at 89.

Following issuance of the Wooten Decision and the execution of a

Preliminary Conference Order setting dates for the parties depositions, Mr.

Rosenkranz failed to appear for his deposition, despite representations by his

7
counsel that he would appear for his deposition and despite ongoing efforts by Ms.

Nelsons counsel to depose Mr. Rosenkranz. R. at 165-177.

c. The Motion for Reverse Summary Judgment

By notice of motion dated January 15, 2016, Mr. Rosenkranz moved

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

alternative for reverse summary judgment, allowing Mr. Rosenkranz to withdraw

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.

As a result of the re-assignment of Justice Wooten to Supreme Court

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.

d. Justice Lebovitss Bias Against Ms. Nelson, as Reflected by His

Erroneous Decision to Consider, Over the Objection of Ms.
8
 Nelsons Counsel, a Double Hearsay Statement by Mr.
Rosenkranz, the Sole Purpose of Which was to Prejudice Ms.
Nelson in the Eyes of the Court

Shortly after commencement of oral argument, Mr. Rosenkranzs

counsel improperly arrogated to himself to bring to Justice Lebovitss attention an

incident which had allegedly occurred during the preceding weekend in which Ms.

Nelson, according to Mr. Rosenkranzs counsel

. . . had the audacity to go unannounced to the home of the

ex-wife of the defendant, the mother of his children, and
present herself at the front door of her apartment. And this
is a woman who suffered a stroke, is disable, has round the
clock nursing. And she barged into the apartment and stayed
there for over an hour; and, and a direct, I think, criminal
violation of, of a temporary restraining order preventing her
from doing exactly the same thing.

See, R. at 399.

It is clear that Justice Lebovits was very disturbed by the allegation

that Ms. Nelson had harassed Mr. Rosenkranzs ex-wife and, in effect, had invaded

her home:

THE COURT: What dignity and self-respect would compel

somebody, if its true, and I dont know what it means, and you may have lots of
defenses, and, of course, you want to be client-centered in your approach and let
the client make the decision and you simply counsel, but what dignity is there to go
to a former spouse who might be might be disabled, and I dont know that its true

MR. BESLOW: I dont know why.

THE COURT: -- crossing the threshold literally [of the apartment of

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.

Already having improperly influenced Justice Lebovits against Ms.

Nelson by his reference to a purported fact not before the lower Court, Mr.

Rosenkranzs counsel thereafter handed up to Justice Lebovits a self-styled

supplemental affidavit signed by Mr. Rosenkranz, in which (a) Mr. Rosenkranz

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

previously brought to Justice Lebovits attention. Mr. Rosenkranzs counsel

sought Justice Lebovits permission to file Mr. Rosenkranzs supplemental

affidavit.

Justice Lebovits asked Mr. Rosenkranzs counsel whether he wished a

ruling as to the admissibility of Mr. Rosenkranzs supplemental affidavit. R. at

415-416. After Mr. Rosenkranzs counsel said that he wished a ruling, Justice

Lebovits allowed Ms. Nelsons counsel to be heard:

MR. BESLOW: My two comments are, number one, it seems as if the

affidavit is hearsay. I dont believe Mr. Rosenkranz
has any firsthand knowledge of whats contained
[therein]. Certainly, an email [from Mr. Rosenkranzs
ex-wife] is hearsay, so I think theres no probative
10
 value. I would object to this submission.

R. at 417.

Notwithstanding the soundness of this objection, Justice Lebovits

quickly, decisively, and unhesitatingly rejected it:

THE COURT: Based on the on hearsay grounds, then if thats the

only objection, then Ill take the papers.

R. at 417.

This erroneous ruling was the harbinger of a decision in favor of Mr.

Rosenkranz. Indeed, Justice Lebovits acceptance of the truthfulness of the single

and double hearsay contained in Mr. Rosenkranzs procedurally and substantively

improper supplemental affidavit, submitted to Justice Lebovits without any prior

notice to Ms. Nelson or her counsel and without Ms. Nelson having an opportunity

to respond to the statements contained therein (because, as Justice Lebovits already

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

defendants ex-wife unannounced on April 9, 2016. No adequate legal remedy

exists. Plaintiff will likely continue her behavior without an injunction. R. at 12.

(Emphasis added)
11
 e. Justice Lebovitss Decision

Justice Lebovits Decision (R. at 8-13)

a. Denied Mr. Rosenkranzs motion for summary judgment, on

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;

b. Granted Mr. Rosenkranzs motion for reverse summary

judgment and rejecting Ms. Nelsons claim for rescission of the Agreement,

holding erroneously that [r]estoring the status quo is impracticable; indeed,

impossible, because plaintiffs own conduct created irreversible changes in

defendants position. (R. at 11.)5;

c. Granted Mr. Rosenkranzs counterclaim for a permanent

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

amendment rights by signing a confidentiality agreement; R. at 12.

d. Denied on Mr. Rosenkranzs motion to disqualify Ms.

Nelsons counsel, as academic (id.); and

e. Denied Ms. Rosenkranzs motion for sanctions against Mr.

Rosenkranz by reason of and as a consequence of his purposeful violation of the

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.

THIS COURT BELOW FAILED TO APPLY FUNDAMENTAL

PRINCIPLES OF NEW YORK LAW WHICH APPLY TO
MOTIONS FOR SUMMARY JUDGMENT

a. The General Principles Relating to a Motion for Summary Judgment

In order to support public policy considerations implementing the

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

alter our jurisprudential concept of a day in court. Understandably, court speak

of the summary judgment restrictively. Summary judgment is a harsh remedy and

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:

a grant of summary relief ends a matter - without a hearing or trial.

These rules include the following:

a. The movant must establish his right to summary relief as a

matter of law; the opponent must establish only the existence of a triable issue of

fact as to a material issue. E.g., Friends of Animals, Inc. v. Associated Fur

Manufacturers, Inc., 46 N.Y.2d 1065 (1979).

b. Only the opposing party may be permitted to demonstrate

acceptable excuse for his failure to meet the strict requirement of tender in

admissible form [citations omitted] Id.

c. Where there is any doubt as to whether the opponent has

raised a triable issue of fact, summary judgment must be denied. Blake-Veeder

Realty, Inc. v. Crayford, 110 A.D.2d 1007 (3rd Dept 1985); Moskowitz v.

Garlock, 23 A.D.2d 943 (3rd Dept 1965) (. . . [s]ummary judgment is a drastic

remedy and should not be granted where there is any doubt as to the existence of a

triable issue.)

d. Whereas the party moving for summary judgment must show

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

merit. E.g., Rubin v. Rubin, 33 A.D.3d 983 (2nd Dept 2006).

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);

Commentaries, David D. Siegel, McKinneys Consolidated Laws of New York

Annotated (C3212:6, p. 14).

f. Summary judgment can be granted only if there are no

material and triable issues of fact. Issue finding - as opposed to issue

determination - is the key to summary judgment. Papers on a summary judgment

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).

The foregoing principles collectively impose a heavy burden upon a

party moving for summary judgment. If he or she fails to meet that burden, the

summary judgment motion must be denied. Vega v. Restani Construction Corp.,

18 N.Y.3d 499 (2012); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986).

b. There Exist Genuine Issues of Fact to Be Tried

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.

Rosenkranzs motion for summary judgment. Thus, he did.

17
 II.

THE COURT ERRED IN DETERMINING SUMMARILY

THAT MS. NELSON WAS NOT ENTITLED TO
RESCISSION OF THE AREEMENT

In rejecting Ms. Nelsons claim for rescission of the Agreement,

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

reliance upon this Courts foregoing decision is misplaced.

In Wyckoff et. al. v. Searle Holdings Inc., supra, the defendant had

agreed to pay plaintiffs the sum of $160,000 in monthly installments of $5,000,

with plaintiffs agreeing to transfer to defendants certain equity interests in

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

against defendants. Ibid.

In that circumstance, this Court ruled that plaintiffs had an adequate

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

Holdings Inc., supra. Restoration to the status quo is not impracticable.

18
 Immediately prior to execution of the Agreement, Mr. Rosenkranz

had no right to restrain or prohibit Ms. Nelson from publishing or disseminating

publicly any information concerning Mr. Rosenkranz or his family. He had no

contractual right to seek such restraint or prohibition. Moreover, he had no legal

right to seek issuance of a temporary restraining order or injunction by a court - for

such judicial restraint would have constituted a prior restraint on Ms. Nelsons first

amendment right to free speech.

Thus, immediately prior to execution of the Agreement, Mr.

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

money to Ms. Nelson.

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

herself) in an earlier stage of a litigation. The law of the case is a policy of

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

is a judicially crafted policy that expresses the practice of courts generally to

refuse to reopen what has been decided [and is] not a limit to their power [citation

omitted] . . . ); Dondi v. Jones, 40 N.Y.2d 8, 15 (19 ) (. . . when it cautioned that

a court should not ordinarily reconsider, disturb or override an order in the same

action of another court of co-ordinate jurisdiction . . . . [citation omitted]).

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

execution of the Agreement.

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

impracticable to restore Mr. Rosenkranz to the position in which he had been

immediately prior to execution of the Agreement.

In the circumstances, the lower Court should not have granted Mr.

Rosenkranzs alternative motion for reverse summary judgment, permitting him to

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.

MS. NELSON DID NOT INTELLINGENTLY AND

KNOWINGLY WAIVE HER FIRST
AMENDMENT RIGHTS

In granting Mr. Rosenkranzs counterclaim seeking a permanent

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

and circumstances surrounding execution of the Agreement indicated that in

executing the Agreement, Ms. Nelson had not intelligently and knowingly waived

her first amendment rights, and that injunctive relief would constitute a prior

restraint on Ms. Nelsons first amendment rights.

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.

Constitution. Speken v. Columbia Presbyterian Medical Center, 305 A.D.2d 489

(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)

(The essence of a wavier is an intentional relinquishment of a known right.).

In view of the enormous importance of a persons right of free speech,

it is self-evident that in order to support a finding of waiver of such right, a court

must be examine carefully the facts surrounding execution of a confidentiality

agreement circumscribing a persons right of free speech. In the absence of New

York authority addressing the care with which a court should examine facts in

order to make a finding as to waiver of a persons first amendment rights,

Perricone v. Perricone, 292 Conn. 187 (2009) a case decided by the Supreme

Court of Connecticut is instructive.

In that case, plaintiff upon learning that defendant planned to

appear on a nationally broadcast television program to discuss him, their marriage,

and a pending custody proceeding sought an order prohibiting defendant from

disseminating any information about him or the parties divorce proceedings, based

upon a confidentiality agreement previously entered into by the parties. After

conduct of a hearing, the court decided that defendant had intelligently and

knowingly waived her first amendment rights. In making this finding, the court

relied upon the following facts:

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

agreement an order of the court.

In setting forth the ground rules underlying its analysis, the court

stated that in determining whether a waiver of first amendment rights is intelligent

and voluntary, a court should consider

. . . whether the parties to the contract had relative bargaining

equality, whether they negotiated the terms of the contract,
whether the party seeking to avoid the waiver was advised by
competent counsel and the extent to which that party has
benefited from the agreement.

Perricone v. Perricone, supra, 292 Conn. at 210.

Here, it is clear that Ms. Nelson did not intelligently and knowingly

waive her first amendment rights in executing the Agreement.

24
 First, Mr. Rosenkranz had not given her a copy of the Agreement

prior to the time he presented it to her for execution.

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

presenting her with the Agreement.

Third, Ms. Nelson did not have representation by an attorney with

respect to the Agreement.

Fourth, Ms. Nelson did not have an opportunity to review or negotiate

the terms of the Agreement.

Ffifth, Mr. Rosenkranz misled Ms. Nelson with respect to the nature

and effect of the Agreement.

Sixth, there was not bargaining equality between Mr. Rosenkranz and

Ms. Nelson.

Seventh, the terms of the Agreement, by themselves, obviated any

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

insufficient to establish irreparable harm or a partys right to injunctive relief.

See, e.g., Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256

(10th Cir. 2004).

Ms. Nelson had no reason to conceptualize the possibility that Mr.

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

behavior that is protected by her First Amendment rights.

In Perricone v. Perricone, supra, the court presided over a hearing

before making a determination as to whether the defendant had intelligently and

voluntarily waived her first amendment rights by signing the confidentiality

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.

Another recent case from the Appellate Division, Third Department is

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

referencing their disabled son were to be contracted by the parties mutual

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:

Moreover, the relief sought constitutes, in effect, a prior

restraint on the wifes freedom of speech; although she agreed
that she would not contract for the publication of a book that
dealt with the son without the husbands consent, she did not
agree that she would never express her views about the son in
other contexts. To enjoin her from doing so under the
circumstances presented here poses significant constitutional
concerns that are not justified by the limited an imperfect
protection of the sons interests that may result. Accordingly,
despite our determination that legal remedies for the wifes
breach of the agreement are appropriate and necessary, we find
no abuse of discretion in Supreme Courts refusal to grant a
permanent injunction, and will not disturb it.

Id. at 1107-1108. Here too, whether or not Ms. Nelsons dissemination of

information may constitute a breach of the agreement resulting in monetary

damages to Mr. Rosenkranz, the permanent injunction constitutes a prior restraint

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

issue a permanent injunction is fatally flawed by reason of its erroneous and

prejudicial determination to allow Mr. Rosenkranz to submit an unauthorized

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

[p]laintiff will likely continue her behavior without an injunction. R. at 12.

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

judgment, to deny Mr. Rosenkranz's counterclaim for injunctive relief, to strike

Mr. Rosenkranz's answer and to impose sanctions against Mr. Rosenkranz,

pursuant to 22 NYCRR 130-1.1.

Dated: New York, New York

August 7, 2017

Respectfully Submitted,

The Law Office of William S. Beslow

By:
Willia:esiOW ----
Attorney for Plaintiff-Appellant
623 Fifth Avenue
New York, New York 10022

29
 APPELLATE DIVISION FIRST DEPARTMENT
PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR Section 600.10 that the

foregoing brief was prepared on a computer using Microsoft Word. An

proportional-distant spaced typeface was used, as follows: The typeface is

Times New Roman; Point Size 14; Line spacing double. The total number

of words in this brief, inclusive of point headings and footnotes and

exclusive of pages containing the table of contents, table of citations, proof

of service and this Statement is 5,837.

Dated: August 7, 2017

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.

Plaintiff-respondent CIVIL APPEAL PRE-

ARGUMENT STATEMENT
-against-

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

following pre-argument statement:

1. The title of the action is Katherine Nelson plaintiff, against Robert

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.

2. Counsel for defendant-appellant is WilliamS. Beslow, 623 Fifth Avenue,

24th floor, New York, New York 10022.

3. Counsel for plaintiff-respondent is Bronstein VanVeen, LLC, 650

Madison A venue, New York, New York 10022.

4. This appeal is taken from the Supreme Court ofthe State ofNew York,

County of New 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.

6. There is no additional appeal pending in the same proceeding.

7. There is no related action or proceeding now pending in this Court.

 8. The nature and object of the action is rescission an agreement between the

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

have learned about defendant during their relationship.

10. The court below erred as follows:

a. The court below erred by granting "reverse summary judgment"

notwithstanding the existence of triable issues of material fact.

b. The court below erred by grating "reverse summary judgment" based, in

part, (i) on impermissible credibility determinations made by it and (ii) on its failure to take into

account plaintiff-appellant's affidavit in which she had disputed defendant-respondent's

purported payment of $45,500 to her under the Agreement.

c. The court below erred by granting "reverse summary judgment," based

upon the prior decision and order of Justice Wooten, which itself constitutes "reversible error,"

that defendant-respondent had made a partial payment of $45,500 to plaintiff-appellant pursuant

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

not have an adequate remedy at law in monetary damages.

e. The court below referred to certain actions allegedly undertaken by

plaintiff-appellant as facts, even though there had never been a determination that

plaintiff=appellant had engaged in acts of harassment.

f. The court below erred by expanding the word "family," as used in the

Agreement, to include the defendant-respondent's ex-wife.

Dated: New York, New York

June 28,2016

Certified pursuant to Part 130

of the Rules of the Chief

VMJ~m S. Beslow, Esq.

Attorney for plaintiff-appellant
623 Fifth Avenue, 24th floor
New York, New York 10022
(212) 698-1171

To: Bronstein VanVeen, LLC.

Attorney for defendant-respondent
650 Madison Avenue New York, NY 10022

Clerk ofNew York County

60 Centre Street
New York, New York 10022