The Lawyer, The Judge & The Dead Grandfather

NOVEMBER 11--We’ve solved the Mystery of the Litigator’s Late Grandfather.

As a result, fans of judicial beatdowns are directed to the White Plains, N.Y. courtroom of Judge Cathy Seibel on November 13, when attorney Richard Liebowitz has been ordered to appear--under threat of arrest by federal marshals--to explain himself in the curious matter of his dead relative.

For more than six months, Seibel--who was nominated to the bench in 2008 after nearly two decades as a federal prosecutor--has sought to get Liebowitz to provide evidence to support his repeated sworn claims that he failed to show up for a court hearing due to a death in the family.

Clearly suspecting that Liebowitz (seen at right) lied to her, Seibel has placed the brash 31-year-old attorney in her crosshairs. The tenacious jurist’s repeated demands for proof of death have left Liebowitz reeling, as meticulously chronicled in a November 1 judicial order.

The 59-year-old judge’s concerns about Liebowitz’s truthfulness were well founded, The Smoking Gun has discovered (but more about that later).

Seibel’s lacerating order was flagged last week in a Law360 story and a series of tweets by attorney Owen Barcala, who noted that, “This must be what it's like to watch someone slowly fall into a woodchipper.” The order makes it clear that Seibel has had Liebowitz in a submission hold for months, but that the lawyer has not had the good sense to tap out.

Seibel’s order notes that Liebowitz is in contempt of two prior court orders, and that he is now subject to a fine of $500 per business day. Seibel initially levied a $100-a-day contempt sanction on October 2, but upped the penalty after concluding it was insufficient to coerce Liebowitz’s compliance. Seibel also ordered Liebowitz to appear before her Wednesday at 10 AM to explain why he should not be jailed until he complies with her orders. Additionally, Seibel warned that if Liebowitz was a no-show, he would be arrested “without further notice” by the United States Marshals Service.

Liebowitz is a well-known figure in the Southern District of New York, where the young litigator has filed more than 1000 copyright lawsuits in the past several years. Liebowitz, who usually represents photographers, has sued scores of New York-based media companies--TSG included--for the alleged unauthorized publication of images created by his clients. A Slate story about Liebowitz noted that he filed six lawsuits on Thanksgiving in 2017.

Liebowitz’s sue-first posture and his aggressive, high-volume practice--which is fueled by contingency fees--have left judges bristling. One jurist blasted Liebowitz for pursuing “frivolous litigation,” while another, Judge Denise Cote, famously branded him a “copyright troll” and ordered him to complete classes in “ethics and professionalism.”   

While most of Liebowitz’s cases have been assigned to judges sitting in Manhattan, some matters have landed on dockets in the White Plains courthouse in Westchester (one of the eight counties comprising the SDNY).

Seibel, pictured above, has handled three copyright lawsuits filed by Liebowitz, a Long Island native who graduated from Hofstra law school and was first licensed to practice in August 2015. Liebowitz operates from a small office across from the Valley Stream railroad station, about three miles from his family’s 10,281-square-foot waterfront mansion.

The most recent Liebowitz case assigned to Seibel was filed last September. Photographer Jason Berger charged that a web site had improperly published a portrait he shot. While most of Liebowitz’s copyright infringement cases settle quickly, the Berger matter lasted long enough for Seibel to schedule a discovery conference at the request of defense counsel.

When the matter was called on April 12 at 11 AM, Liebowitz was AWOL. In her November 1 order, Seibel recalled that the plaintiff’s counsel “did not appear and did not call or email the Court or Defendant’s counsel to explain his absence.” In light of his no-show, Seibel directed Liebowitz to explain “why he should not be required to pay Defendant's attorney’s fees for the time expended to appear at the conference.”

Though most lawyers would be mortified to appear late for a federal court hearing, Liebowitz appeared in no rush to explain his complete no-show.

On April 15, Liebowitz wrote Seibel to apologize for his failure to appear in her courtroom. “I had a death in the family,” he explained, adding that, “this was an unexpected urgent matter I needed to attend to.” He then requested that the discovery conference be rescheduled (and that it be conducted telephonically since he would be “out of the office”).

Seibel agreed to Liebowitz’s request and conducted the discovery conference by phone on April 18. As the judge recounted in her November 1 order, Liebowitz told her that “the death in the family occurred on the morning of April 12,” a Friday, and he apologized for not letting her or opposing counsel know.

While that mea culpa may have sufficed--and prompted no further inquiry by Seibel--the judge noted that other issues arising during the conference “reflected negatively” on Liebowitz’s credibility. She pointed to conflicting statements he made about the provision of discovery materials, as well as Liebowitz's claim to defense counsel that he could not produce those records “because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drum up business.”

“At that point, concerned about Mr. Liebowitz’s credibility,” Seibel wrote, “I determined that I could not merely accept Mr. Liebowitz’s representation that he missed the April 12 conference because of a death in the family.” As a result, she ordered Liebowitz to “provide evidence or documentation regarding who died, when, and how he was notified.”

On May 1, two weeks after the telephone conference, Liebowitz wrote Seibel to “let the Court know the reason for my absence at the conference scheduled for April 12, 2019.” Liebowitz then claimed his grandfather “unexpectedly passed away” that Friday, “and I needed to immediately arrange to be with my family during this difficult time.”

Liebowitz continued, “In the Jewish religion certain customs needed to be done before the Sabbath that I needed to assist in. I truly hope the Court understands this emergency.” Liebowitz did not further describe his responsibilities prior to the Sabbath (which begins at sunset on Friday and continues until nightfall on Saturday).

Seibel immediately dismissed Liebowitz’s letter as not responsive, writing that she ordered him to “document who passed away, when the person passed away and when Mr. Liebowitz was notified.” She sought such proof, Seibel noted, because “there is reason to believe Mr. Liebowitz is not being candid.” The judge added, “When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one’s phone ususally contains evidence of what one was told and when.”

Seibel gave Liebowitz two days to “supplement this letter.” On May 3, the day Liebowitz’s reply was due, he filed a notice reporting that the Berger litigation had been settled.

However, Seibel noted, the case closing did not relieve Liebowitz of his responsibility to “document the death in the family that he says caused him to miss the conference.” Seibel gave Liebowitz until May 9 to document his grandfather’s death since, “I still need to satisfy myself that there is no need for disciplinary or other inquiry.”

Over the following months, Liebowitz filed a series of four “good faith” sworn declarations that asserted he had met his obligations in response to Seibel’s request for proof of his grandfather’s demise. In reply to each filing, Seibel explained that Liebowitz--despite her repeated orders--had failed to offer any documentation to support his death-in-the-family claim.   

As the back-and-forth dragged on for months, Seibel’s patience was only matched by the intransigence of Liebowitz, whose court filings did not include his late grandfather’s name (or indicate what side of the family he was on).

On July 26, Seibel ordered Liebowitz, “under pain of contempt,” to provide her with a copy of his grandfather’s death certificate “so as to support his claim that he could not attend the April 12 conference, nor provide timely notice to the Court or opposing counsel, as a result of his grandfather’s death.”

In reply to Seibel’s demand, Liebowitz again claimed that he had already “discharged my obligations,” adding that he should not be ordered to “produce a death certificate of my grandfather, which is a personal matter.”

Acknowledging that the “death of a loved one is indeed a personal matter,” Seibel countered that the question of  “whether Mr. Liebowitz has been candid with the Court is a professional matter, so he is not relieved from my Order that he produce the death certificate.” She assured Liebowitz that if he was concerned about the death certificate being available on the public docket, he could “provide the document directly to my chambers to ensure his privacy.”

Seibel also warned that if Liebowitz did not produce the death certificate by August 26, he would be held in contempt of court, face monetary sanctions, “and/or referral to this Court’s Grievance Committee.”

In the face of a contempt ruling, fines, and possible disciplinary sanctions, Liebowitz again refused to produce proof of his grandfather’s death. In another “Good Faith Declaration,” the lawyer declared that, “I will not produce a death certificate of my grandfather, which is a personal matter that has no bearing on the facts of this case.”

Liebowitz’s August 26 filing also took a swipe at Seibel, saying that since her demand for the death certificate “is of a highly personal nature and not related to this case, it likely constitutes a usurpation of judicial authority.” Dismissing Seibel’s concerns, Liebowitz blithely declared, “I missed a single court conference due to a death in the family. It happens.”

Seibel subsequently declared Liebowitz to be in contempt of court and began levying fines against him on October 2. During October, the judge denied Liebowitz requests to stay the imposition of monetary sanctions, schedule a court conference to “discuss the death certificate of Attorney Liebowitz’s grandfather,” and grant a two-week extension to “hand deliver the death certificate of Richard Liebowitz’s grandfather to the Court.”

As of November 1, Seibel noted, Liebowitz “had not made any of his required payments” under the contempt sanction.

When he appears Wednesday before Seibel, Liebowitz will face an exasperated judge who has been stymied for six months by a young lawyer who opted to sextuple down on sworn claims about his grandfather’s death--despite the fact that they were untrue.

A TSG investigation has determined that Liebowitz’s maternal grandfather did, in fact, die in April. But not on April 12, the Friday morning he failed to appear before Seibel.

Jaime Radusky, 93, died at 10:20 AM on April 9 at Weill Cornell Medical Center on Manhattan’s Upper East Side (and was buried later that day). Radusky, a Cuban émigré, lived in a penthouse apartment about 10 blocks from the hospital where he died. In the above Facebook photo, Radusky is seen poolside at the Miami Beach condominium complex where he owned a unit.

Details of Radusky’s death are contained in a probate petition filed in Surogate’s Court in Manhattan by the two exectors of Radusky’s estate, his son Henry Radusky and daughter Sara Liebowitz (Richard Liebowitz’s mother). Additionally, an affidavit sworn by an attorney representing Radusky’s heirs reported that, “The decedent died on April 9, 2019.”

The probate filings indicate that Richard Liebowitz and his two siblings will each receive 10 percent of a trust into which their late grandfather placed his assets.

A copy of Radusky's death certificate has been filed with the Surogate’s Court clerk, records show. Additionally, the death certificate has been filed in a separate action in New York State Supreme Court. In the latter case, which involves the appointment of a legal guardian for Radusky’s incapacitated wife, Radusky’s date of death is listed in court filings as April 9. A certified copy of the death certificate was also provided to the Social Security Administration, according to Surrogate’s Court records.

Radusky’s date of death is also included in New York City Board of Elections records. The nonagenarian’s voter registration was canceled in mid-May after state election officials apprised their city counterparts of Radusky’s death. The state notification listed April 9 as Radusky’s date of death and included the file number of the death certificate issued by the Department of Health.

While Liebowitz has complained that providing the death certificate to Seibel could amount to a violation of his privacy rights--since it was a “deeply personal matter”--the death certificate has been filed with two separate courts and the Social Security Administration. Additionally, details from the document are in the files of two election agencies.

So it seems Liebowitz postdated his grandfather’s death by three days as a way of explaining why he failed to appear in Seibel’s courtroom on April 12. He then quickly compounded matters by claiming that his kin’s death--which occurred on a Tuesday, not the following Friday--required him to “immediately arrange to be with my family during this difficult time,” while also attending to Jewish religious customs “that needed to be done before the Sabbath.”

Liebowitz--who apparently never anticipated that Seibel would call his bluff--then spent months repeatedly attesting to the truthfulness of his claims. And when Seibel pushed him for a copy of his grandfather’s death certificate, Liebowitz questioned her judicial probity and the lawfulness of her document demand. He even accused her of a “breach of judicial decorum.”

Liebowitz did not respond to multiple TSG requests for comment, so it remains unclear as to just what he was thinking. (15 pages)