Gary Fragin, Respondent, v. First Funds Holdings, LLC, Formerly Known as First Funds LLC, et al., Appellants

Gary Fragin, Respondent, v First Funds Holdings, LLC, Formerly Known as First Funds LLC, et al., Appellants. [51 NYS3d 394] [MAJORITY] Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 12, 2016, which granted plaintiffs motion to compel the production of documents and testimony, unanimously modified, on the law, and in the exercise of discretion, to refer this matter to a special master for review of all of the documents on defendants’ privilege log, and otherwise affirmed, without costs. The motion court providently exercised its discretion (see e.g. Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]) by finding that plaintiff demonstrated “a factual basis for a showing of probable cause to believe that a fraud . . . has been committed” (Matter of New York City Asbestos Litig., 109 AD3d 7, 10 [1st Dept 2013] [internal quotation marks omitted], lv dismissed 22 NY3d 1016 [2013]). The motion court’s original decision at oral argument—to refer all of the documents (not just a sample) to a special master—was sound, and we exercise our independent discretion (see Those Certain Underwriters, 11 NY3d at 845) to direct such a course. Concur—Acosta, J.R, Mazzarelli, Manzanet-Daniels and Webber, JJ.