Litman v. Goldberg, Index No. 524343/2025 (NY Sup. Ct., Kings County, Hon. Brian L. Gotlieb, J.S.C.)
Source pleading audited: NYSCEF Doc. No. 65 — Defendant Joshua B. Goldberg's Answer to the Surviving Claims of Plaintiff's Second Amended Complaint, filed 1/20/2026 by Connell Foley LLP (Hurley/Gould/Hotchkiss). Affirmative defenses appear at pp. 13-14.
Surviving claim: Count V — NY Civil Rights Law §§ 50-51 (Misappropriation of Name).
Audit date: 2026-04-29.
Companion document: output/research_2026_04_28_overnight/PRE_2020_CONSENT_AUDIT.md (deep-dive on Tenth defense; this pack restates it and adds the other nine).
Goldberg's Answer pleads ten affirmative defenses, every one of which is a one-sentence boilerplate label:
| # | Defense (verbatim caption) | Strength | Recommended motion |
|---|---|---|---|
| 1 | Statute of limitations (general) | Frivolous | CPLR 3211(b) — strike for vagueness |
| 2 | CPLR 215(3) one-year SOL for § 51 | Colorable as to scope; cannot bar suit | Partial CPLR 3212 — limits damages window only |
| 3 | "First publication rule" (Nussenzweig) | Weak | CPLR 3211(b) / 3212 — misapplies single-publication rule |
| 4 | Failure to state a cause of action | Frivolous (law of the case) | CPLR 3211(b) — already adjudicated 12/5/2025 |
| 5 | Waiver / estoppel / laches / unclean hands (omnibus) | Frivolous | CPLR 3211(b) — duplicative + non-pleaded with particularity |
| 6 | Res judicata | Frivolous | CPLR 3211(b) — wrong claim, wrong forum |
| 7 | Collateral estoppel | Boomerang for Plaintiff | CPLR 3212 — Plaintiff invokes offensively |
| 8 | Failure to mitigate damages | Weak | Trial-only; reservation framing |
| 9 | No damages | Frivolous | CPLR 3212 — partial summary on liability + nominal damages |
| 10 | Implied / express consent | Non-colorable | CPLR 3211(b) — see PRE_2020_CONSENT_AUDIT.md |
Tally: 7 frivolous, 2 weak, 1 colorable as to a partial scope question (Second), 0 strong. None bars Plaintiff's case in chief.
Two defenses Plaintiff should treat as live (not winning, but not pure boilerplate):
project_sol_willfulness_framework.md. Plaintiff already concedes this in damages framing; it is not a settlement weakness.No other defense has any plausible merit on the present record.
"Plaintiff's claims are barred in whole or in part by the expiration of the relevant statute of limitations."
Under NY pleading practice (CPLR 3018(b)), a statute-of-limitations affirmative defense must be pleaded with sufficient particularity to give Plaintiff notice of the specific limitations period invoked. Bahgat v. Bahgat, 28 A.D.3d 1135 (4th Dep't 2006). A bare assertion that "some" limitations period applies, without specifying which, is properly stricken under CPLR 3211(b) for failure to state a defense.
This defense is duplicative of the Second Affirmative Defense, which actually identifies the operative provision (CPLR 215(3)). The First Affirmative Defense identifies no statute, no period, and no accrual rule. It therefore states no defense as a matter of law and should be stricken. To the extent it preserves any non-§ 51 limitations theory, no such theory is viable: the only surviving claim is Count V (§§ 50-51), so no other limitations period applies.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | Court's 12/5/2025 Order (NYSCEF Doc. No. 61) | Dismissed Counts I-IV with prejudice; only § 51 claim survives, so only CPLR 215(3) (Second Defense) can apply |
| 2 | Second Amended Complaint (NYSCEF #59) | Surviving claim is Count V only |
| 3 | Goldberg's own Second Affirmative Defense | Identifies the only operative SOL — CPLR 215(3) — making the First wholly duplicative |
CPLR 3211(b) motion to strike — viable now. The defense is duplicative on its face and identifies no statute. A short, focused motion combining the First with the Fourth (Failure to State a Claim — also frivolous) is efficient. Alternatively, this defense can be folded into a comprehensive 3211(b) motion striking Defenses 1, 4, 5, 6 together.
Don't file a standalone motion just for this — combine with the Fourth and the omnibus Fifth. Even if the court does not strike, this defense adds nothing because the Second covers the same ground with specificity. Treat as a vehicle to make Goldberg articulate which statute he means; he won't be able to identify any beyond § 215(3).
"Plaintiff's claims are barred in whole or in part by the expiration of the limitations period specified in CPLR 215(3), which specifies that 'an action to recover damages for . . . a violation of the right of privacy under section fifty-one of the civil rights law' must be commenced within one year."
CPLR 215(3) imposes a one-year limitations period on § 51 actions. Defendant must show that the cause of action accrued more than one year before the Complaint was filed. The Complaint was filed 7/21/2025, so the SOL barrier is 7/21/2024. Per Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007), an action for misappropriation under § 51 ordinarily accrues "on the date the offending material is first published" — but that is the single-publication rule (analyzed under the Third Defense below) and does not apply where each new use is itself an actionable, separate publication.
Conceded: Pre-7/21/2024 uses are not standalone § 51 liability events. Per project_sol_willfulness_framework.md, Plaintiff's framework already segments damages this way:
- Pre-termination (before 6/15/2020) — background only
- Post-termination, Pre-SOL (6/15/2020 – 7/20/2024) — willfulness / course / notice / value evidence; not standalone liability
- Within-SOL (on or after 7/21/2024) — independently actionable per use
Defeated as to scope of bar: A massive, empirically-verified body of post-7/21/2024 conduct independently violates § 51:
The 12 Lafave/Litman PTOL-85B Box-2 elections that resulted in patent face pages issued on or after 7/21/2024 (project_post_sol_aor_split.md). Patent numbers (locked, USPTO ODP API verified 2026-04-25): 12,043,608; 12,043,609; 12,049,459; 12,054,460; 12,054,464; 12,062,780; 12,065,424; 12,071,437; 12,114,620; 12,116,333; 12,194,434; D1,046,141. Earliest grant date 2024-07-23 (within SOL window); latest 2025-01-14.
NGM's continued public listing of Litman as "PATENT ATTORNEY" on nathlaw.com through 6/21/2025 (Wayback capture). Each viewer-impression in the SOL window is itself a separate § 51 use under a continuous-tort or republication theory; at minimum, the 6/25/2025 "Retired" relabel and the 9/5/2025 removal both occurred within the SOL window and are admissions of unauthorized prior use.
205+ post-eGrant Goldberg patents (per project_switchover_discovery.md) were prosecuted under correspondence routed to Customer Number 37833 with Litman's name continuing to appear in customer-number records until 5/1/2025 12:43 PM (the silent self-service Patent Center removal — project_cn37833_removal.md). Every USPTO outgoing document to CN-37833 between 7/21/2024 and 5/1/2025 was addressed to "Richard C. Litman / Nath, Goldberg & Meyer."
Per-day client-correspondence cascade. Per project_kfu_daily_pattern.md: 24,797 KFU-aliased emails through 7/18/2025 termination of email accounts. Each email signed/sent under Litman's email alias to clients counts as a separate use dated when sent (Plaintiff's Martha-email theory, project_martha_email_theory.md). Substantial fraction is post-7/21/2024.
Q1 2026 Aaron Gould → Scott Woller 4/17/2026 backup package (project_q1_2026_payment.md). NGM's own AR Report (Apr 2026) shows $1,302,403 billed and $1,225,190 outstanding under "Richard Litman" as Collecting Lawyer across 496 invoice lines and 374 dockets — 161 invoices dated 2025. NGM's own contemporaneous billing system commits new § 51 uses into 2026 by issuing client invoices crediting work to Litman.
AR Report 2/17/2026 personally requested by Goldberg (project_ar_report_responsible_jbg.md) — single "responsible JBG" line = KSU 33115.20U $16,700, post-arb 32 months, 19 months post-SOL. Goldberg's affirmative use of Litman-coded billing data within the SOL window.
| # | Document | Cite |
|---|---|---|
| 1 | output/patent_count_refresh/ngm_cn37833_grants_classified.csv (live USPTO ODP API 2026-04-25) |
12 Litman face-page elections within SOL window; 449 Goldberg-AOR contemporaneous patents proving capability/control |
| 2 | Bates C2051472_ND0000058048 (7/17/2024) → C2051472_ND0000069257 (5/1/2025 12:43 PM) | NGM CN-37833 correspondence in Litman's name through 5/1/2025; Goldberg's silent removal is itself an admission post-SOL use was occurring |
| 3 | evidence/ngm_q1_2026_payment_backup_20260417/ (36-file NGM-produced backup; Gould → Woller 4/17/2026) |
$1.3M post-7/21/2024 invoiced under Litman as Collecting Lawyer; 161 invoices dated 2025 |
Partial CPLR 3212 — viable. This defense cannot be stricken outright because it accurately states the SOL. But Plaintiff can move for partial summary judgment (a) determining that the SOL period is 7/21/2024 to 7/21/2025 for the original Complaint and 7/21/2024 to 10/9/2025 for any new uses pleaded in the Second Amended Complaint (relation-back analysis under CPLR 203(f)), and (b) holding that each separately-dated post-7/21/2024 use is a fresh § 51 violation per Firth and Stephano. Trial would then determine which uses fall in/out of the window.
Don't fight the SOL — own it. Frame Plaintiff's case explicitly as "post-7/21/2024 uses for liability, pre-7/21/2024 uses for willfulness scaffolding." This is consistent with project_sol_willfulness_framework.md and turns Goldberg's strongest defense into Plaintiff's structuring principle. The 12 face-page patents alone would survive the SOL bar; the cascade (749+ separately-dated uses anchored to those 12) survives more decisively. The settlement-leverage point is that Goldberg knows the post-SOL universe is large and continues into 2026 — the wire of $18,848 for Q1 2026 doesn't make the conduct stop, it documents that the conduct continues.
"Plaintiff's claims are barred in whole or in part because the limitations period under CPLR 215(3) begins to run in accordance with the 'first publication rule,' which provides that a cause of action under CPLR §§ 50 or 51 'accrues on the date the offending material is first published' (Nussenzweig v. diCorcia, 9 NY3d 184, 188 [2007])."
To bar Plaintiff's entire suit under the single-publication rule, Defendant would have to show that all of the post-7/21/2024 uses are merely continuations of a single integrated "first publication" that occurred more than one year before suit. That is, every use complained of would have to be the same publication, just continuously displayed.
The first-publication rule does not apply — and Goldberg's invocation of it is a misreading of Nussenzweig and Firth. NY's single-publication rule treats a "single integrated publication" (one printed run, one website page) as accruing once. It does not convert distinct future uses into one prior event.
Each of the following is a separate publication, not a continuation of any prior one:
Each USPTO patent grant. A patent issued 12/3/2024 is not a continuation of a patent issued 7/30/2024; they are distinct USPTO documents on distinct applications, each with their own PTOL-85B Box-2 election (per project_ptol85b_smoking_gun.md). Lafave's per-patent "typed name choice" — proven empirically by US 12,127,901 (Lafave self-substitution) — proves the elections are independent acts. Cf. output/research_2026_04_28_overnight/PTOL_85B_ELECTION_VERIFICATION.md.
Each USPTO outgoing letter to CN-37833 (216 patent-cascade outgoing docs across the 12 anchor patents alone — see project_post_sol_aor_split.md cascade) is a separate document with its own date.
Each NGM client invoice crediting Litman as Collecting Lawyer (161 invoices dated 2025 alone in the AR Apr 2026 produced 4/17/2026) is a separate trade-purpose use, dated when issued.
Each Martha Long client email containing a docket/draft tagged to Litman is a separate publication, dated when sent (Plaintiff's email theory, project_uncle_email_theory.md; per project_martha_email_theory.md, USPTO docs are not public until patent issues — pre-issuance Martha emails are private/commercial uses dated when sent).
Each NGM trademark filing under TEAS / TSDR identifying Litman (per project_trademark_discovery.md and reference_teas_vs_customer_number.md — separate channel from CN-37833).
The 5/1/2025 CN-37833 name removal itself (project_cn37833_removal.md) is an admission that the prior correspondence-block uses were repeating commercial uses — Goldberg's silent unilateral correction proves he knew the displays were active and removable.
Republication / modification triggers reset accrual under Firth v. State, 98 N.Y.2d 365 (2002). The 6/25/2025 "Retired" website edit (per project_cn37833_removal.md Erasure Timeline Act #3) is a content modification — under Firth republication doctrine, it re-triggers the SOL for the modified page.
Defense logic fails on its own data: If the entire universe of post-2020 Litman uses were a "single integrated publication," then NGM would never have needed to (a) silently remove Litman from CN-37833 on 5/1/2025, (b) edit the website to add "Retired" on 6/25/2025, (c) close email accounts on 7/18/2025, or (d) complete website removal on 9/5/2025. Each of these acts proves the prior uses were independent, ongoing, and capable of being separately stopped.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | The 5-act erasure timeline (project_cn37833_removal.md) |
Goldberg's own remediation steps prove distinct, separately-actionable uses; the existence of a "first publication" cannot be aggregated where Goldberg himself stopped each use individually |
| 2 | US 12,127,901 PTOL-85B (Lafave self-substitution, 9/25/2024 form, granted 10/29/2024) | Same staffer, same form, different name typed in Box 2 — empirical proof that each PTOL-85B is an independent name-election act, not a continuation of any prior publication |
| 3 | NGM AR Report Apr 2026 (Gould-Woller 4/17/2026) | 161 invoices dated 2025 with Litman as Collecting Lawyer; each invoice is its own publication, dated when issued |
CPLR 3211(b) viable; if not granted, CPLR 3212 partial summary judgment. The defense is a misapplication of the single-publication rule. Plaintiff should move to strike (or alternatively, for declaratory ruling) that: (i) each post-7/21/2024 patent issuance is a separate publication; (ii) each NGM client invoice/correspondence is a separate publication; (iii) the 6/25/2025 website "Retired" edit is a Firth republication.
Pair this with the Second Defense response. The combined message is: "We don't need to win on the SOL — but the first-publication rule cannot be a categorical bar." Cite Firth every time. The 5-act erasure timeline is the killer fact: Goldberg's own remediation behavior proves the publications were independent.
"Plaintiff's claims fail to state a cause of action upon which relief can be granted."
In NY practice, a "failure to state a cause of action" affirmative defense is functionally a placeholder; the substantive challenge would be raised by CPLR 3211(a)(7) motion to dismiss. The defense itself is rarely a vehicle for affirmative relief — it is a hold-over and is generally innocuous if the plaintiff has stated a claim.
This defense is law of the case after the 12/5/2025 Order (NYSCEF Doc. No. 61). The Court adjudicated motions to dismiss, dismissed Counts I-IV, and expressly preserved Count V. By so doing, the Court necessarily found Plaintiff stated a § 51 claim. Re-pleading "failure to state a cause of action" against the surviving claim is barred by:
Independently, the elements of § 51 are satisfied on the face of the Second Amended Complaint and Goldberg's own admissions:
- Use of name — admitted at ¶¶ 32, 72.
- For purposes of trade — § 18.53M+ in collected fees from Litman-originated matters; multi-million-dollar Q1 2026 AR still tagged to Litman as Collecting Lawyer.
- Within New York — Goldberg admits the website use; nathlaw.com publishes nationally and is accessible in NY; client correspondence sent to and from NY.
- Without written consent — see PRE_2020_CONSENT_AUDIT.md and Tenth Defense rebuttal below; Goldberg's 2/26/2026 sworn discovery response identifies no consent document containing a name-use clause.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | NYSCEF Doc. No. 61 (12/5/2025 Order) | Court already adjudicated 3211(a)(7) and preserved Count V — law of the case |
| 2 | Goldberg Answer ¶¶ 32, 72 (NYSCEF #65) | Admissions of name use on patent face pages and website satisfy element 1 |
| 3 | Goldberg's 2/26/2026 sworn discovery responses | No consent document exists; element 4 (lack of written consent) is conceded |
CPLR 3211(b) motion to strike — viable now. Combine with First and Fifth defenses for an omnibus motion to clear out the boilerplate.
This is a throwaway defense. Don't waste briefing pages on a single-line strike. Note it as duplicative of the prior 3211(a)(7) ruling and let the court strike it on the omnibus motion. The strategic value is forcing Goldberg to articulate any actual element-failure he claims — there is none.
"Plaintiff's claims are barred by the principles of waiver, estoppel, laches and/or unclean hands."
NY pleading practice requires that affirmative defenses be pleaded with "particular statements of fact." CPLR 3013, 3018(b); Bahgat v. Bahgat, 28 A.D.3d 1135 (4th Dep't 2006). Each of the four equitable doctrines listed has distinct elements:
The omnibus pleading "waiver, estoppel, laches and/or unclean hands" identifies no facts and pleads no element of any of the four. It is the textbook example of a defense properly stricken.
LITMAN_NON_CONSENT_DECLARATION ¶ 27L). A status accepted for MetLife benefits coordination is not a voluntary waiver of identity rights.project_disability_insurance.md).NY's classic laches test: (1) plaintiff knew or should have known of the wrong; (2) inexcusable delay in bringing suit; (3) defendant's lack of knowledge/notice of the claim; (4) prejudice to defendant from delay. Skrodelis v. Norbergs, 272 A.D.2d 316, 317 (2d Dep't 2000).
project_court_status.md) is NGM's own counsel acknowledging the dispute existed.project_freedom_bank.md), the $1.59M January 31 → February 1, 2026 phantom trust positions (project_q1_2026_payment.md).feedback_publication_framing.md, frame § 50-51 harm as Goldberg-caused publication; Litman's hands are clean of any publication of his own name.project_freedom_bank.md); silent CN-37833 removal (project_cn37833_removal.md); recorded false denials (Answer ¶ 38 denying recorded Nunc Pro Tunc Assignment); affirmative-defense pleading without factual basis. Equity precludes a defendant from asserting unclean hands against a plaintiff while engaged in continuing inequitable conduct.| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | Litman's four written non-consent emails (4/22/2021; 4/30/2021; 5/1/2023; 6/24/2025) | Defeats waiver (intentional relinquishment), estoppel (consistent position), laches (notice to Goldberg) |
| 2 | Goldberg's continued conduct post-notice (449 Goldberg-AOR patents 2024-07-21 → 2026-04-25) | Defeats laches reliance/change-of-position element — NGM did not slow down, it accelerated |
| 3 | Spoliation timeline (project_freedom_bank.md, project_cn37833_removal.md) |
Defeats unclean hands (Goldberg's own continuing inequitable conduct) |
CPLR 3211(b) motion to strike — viable now. This omnibus defense pleads four distinct equitable doctrines with no facts. Bahgat is directly on point: such defenses are routinely stricken. If court is reluctant to strike, alternatively move under CPLR 3024 for a more definite statement, or under CPLR 3042 / 3043 for a Bill of Particulars on this defense. Goldberg will be unable to particularize, which sets up a CPLR 3212 motion later.
This is the second-most-important defense to strike (after the Tenth) because the omnibus framing obscures the absence of any factual basis. Every doctrine listed has a knockout written response: - Waiver → Litman's 4/22/2021 reservation email - Estoppel → no reliance, contradictory positions are Goldberg's not Litman's - Laches → SOL governs; plus no unreasonable delay; plus Goldberg's continued conduct - Unclean hands → spoliation timeline turns the defense around
If court denies the strike, demand a Bill of Particulars under CPLR 3041-3043 specifying the facts supporting each doctrine. Goldberg will have to either (a) particularize and lose on summary judgment because the facts are absent, or (b) decline to particularize and waive the defense.
"Plaintiff's claims are barred by the doctrine of res judicata."
NY claim preclusion (res judicata) requires: (1) a prior final adjudication on the merits; (2) by a court of competent jurisdiction; (3) between the same parties or their privies; (4) involving the same claim or one that could have been raised in the prior proceeding under NY's "transactional analysis." O'Brien v. City of Syracuse, 54 N.Y.2d 353 (1981); Smith v. Russell Sage College, 54 N.Y.2d 185 (1981).
project_court_status.md) speaks to the parties' "departure" structure, not to misappropriation of name.NY's transactional test asks whether the claims arise from "the same transaction or series of transactions." O'Brien, 54 N.Y.2d at 357. Here:
- The arbitration adjudicated 2017 sale terms and post-termination payment obligations.
- The § 51 claim adjudicates Goldberg's commercial misuse of Litman's name on (a) post-7/21/2024 patent face pages, (b) post-2020 nathlaw.com displays, (c) post-arb client invoices, (d) post-arb Martha Long client correspondence, (e) post-arb USPTO outgoing correspondence, etc.
- The "transactions" giving rise to § 51 liability post-date the arbitration entirely.
- Per project_jurisdiction.md: NGM is a DC entity; Goldberg admitted in DC + VA, not NY. The arbitration was ME-flavored (DC-anchored panel). The NY § 51 claim's situs (use within NY) is geographically and conceptually distinct.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | 6/14/2023 Final Arbitration Award (Arb. Horne) | Adjudicated contract / departure-structure claims only; no § 51 finding |
| 2 | NYSCEF Doc. No. 61 (12/5/2025 Order) | Court preserved Count V — no prior adjudication on the merits |
| 3 | EDNY voluntary dismissal of 1:25-cv-04048 | Without-prejudice dismissal under CPLR 3217 has no preclusive effect |
CPLR 3211(b) motion to strike — viable. Res judicata is a particularly bad fit because: (i) the arbitration adjudicated different claims; (ii) the EDNY action was voluntarily dismissed; (iii) the post-arb conduct cannot be barred by a 6/14/2023 award.
Move to strike. The defense is frivolous. If denied, the post-arb / post-7/21/2024 evidence cabin every res judicata argument because that conduct could not have been adjudicated before it occurred. Goldberg should be ordered to identify the specific prior adjudication being asserted; he cannot.
"Plaintiff's claims are barred by the doctrine of collateral estoppel."
NY collateral estoppel (issue preclusion) requires: (1) the identical issue was necessarily decided in a prior proceeding; (2) the decision is binding on the prior party; (3) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-501 (1984); Buechel v. Bain, 97 N.Y.2d 295, 303-304 (2001).
This is the crucial point: Goldberg pleaded collateral estoppel without realizing the doctrine boomerangs. Plaintiff can invoke offensive collateral estoppel on every preclusive arbitration finding:
feedback_royalty_not_commission.md. Estops Goldberg from re-characterizing 20% as a license fee for name use.Defendant cannot use offensive collateral estoppel where Plaintiff did not have a full and fair opportunity to litigate the identical issue. The Plaintiff did not litigate § 51 in arbitration, and could not have: - The arbitrator's jurisdiction was limited to the Combination Agreement. - § 51 is a NY statutory tort that requires NY court adjudication. - Many of the operative facts (post-2024 patents, post-arb 161 invoices, 5-act erasure timeline) had not yet occurred.
The 12/5/2025 Order dismissed Counts I-IV but preserved Count V. By preserving Count V, the Court necessarily rejected Goldberg's threshold attacks on the § 51 claim. If Goldberg now claims that any 12/5/2025 ruling collaterally estops Plaintiff, the answer is the inverse: those rulings either favor Plaintiff or are neutral.
| # | Document | Why it defeats the defense (and boomerangs) |
|---|---|---|
| 1 | 6/14/2023 Final Arbitration Award (Arb. Horne) | Termination 6/15/2020 estops Goldberg's consent theory; 20% = royalty estops license re-characterization; alter-ego anchors personal liability |
| 2 | Goldberg's 1/18/2023 MSJ + 5/24/2023 Post-Arb Brief (Heba Carter) | Disability = death position estops capacity-to-consent argument; locks in the inconsistent-positions theme for judicial estoppel mirror argument |
| 3 | NYSCEF Doc. No. 61 (12/5/2025) | Preservation of Count V means no prior § 51 issue was adjudicated against Plaintiff |
CPLR 3211(b) motion to strike — viable as to the defense; but FILE A CROSS-MOTION for partial summary judgment (CPLR 3212) invoking offensive collateral estoppel: - 6/15/2020 termination is binding and forecloses Goldberg's consent theory. - "Disability = death" is binding and forecloses capacity-to-consent. - 20% = royalty is binding and forecloses license re-characterization. - "Alter ego" is binding and supports personal liability against Goldberg.
This is the highest-leverage motion in the entire pack: Goldberg invited collateral estoppel as a defense, and Plaintiff converts it into four pre-loaded preclusive findings that gut the defense at trial.
This is the boomerang defense. Don't just strike it — weaponize it. The cross-motion for offensive collateral estoppel based on the arbitration findings should be the centerpiece of the dispositive motion practice. See PRE_2020_CONSENT_AUDIT.md § 7.1.3 (lock in collateral estoppel on 6/15/2020 termination).
"Plaintiff's claims are barred in whole or in part by his failure to mitigate the alleged damages."
Failure to mitigate is an affirmative defense to damages, not liability. The defendant must prove: (1) Plaintiff failed to take reasonable steps to limit damages; (2) Reasonable mitigation steps would have reduced specific damages; (3) The defendant bears burden of proof on both elements. Wilmoth v. Sandor, 259 A.D.2d 252 (1st Dep't 1999); LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 47 A.D.3d 103 (1st Dep't 2007).
PRE_2020_CONSENT_AUDIT.md).Litman did not control:
- USPTO Customer Number 37833 — controlled by NGM (project_cn37833_removal.md proves Goldberg removed Litman's name from CN-37833 unilaterally on 5/1/2025; if Litman could have done this himself, the case is over — Goldberg's act of removal proves only NGM had the access).
- nathlaw.com website — controlled by NGM (Goldberg ignored the 6/10/2025 demand for 11+ days; the eventual 9/5/2025 removal occurred only after suit).
- PTOL-85B Box-2 attorney typed by Lafave (NGM staffer).
- NGM client invoicing — controlled by NGM accounting department (Valencia Gray, MaryJane Harper).
- NGM trust/operating accounts — controlled by Goldberg (project_freedom_bank.md spoliation; project_q1_2026_payment.md $1.78M phantom BoA balance).
NY law does not require a plaintiff to mitigate damages when the defendant controls the means of cure and ignores demands. LaSalle Bank Nat'l Ass'n v. Nomura, 47 A.D.3d 103 (1st Dep't 2007).
Per ¶ 39 of the Answer (Goldberg's own admission), Litman became "physically disabled" June 2020. Goldberg's arbitration position was disability = death. A defendant who has elsewhere argued the plaintiff is "effectively dead" cannot then argue the plaintiff failed to take reasonable mitigation steps that a physically able person would have taken. Estoppel by inconsistent positions. D&L Holdings.
The 7/21/2024 SOL window for standalone § 51 liability had not even opened at the time of most of the alleged "delay." The post-7/21/2024 uses are independently actionable, and Plaintiff filed suit 7/21/2025 — at the earliest possible date for cumulative SOL-window damages. There is no delay to mitigate.
Goldberg's only colorable mitigation argument — that Litman could have stopped using NGM email — was foreclosed when NGM unilaterally terminated the perpetual-license email accounts on 7/18/2025 (one day after the litigation threat per memory; in breach of Para. 3(b) of the 5/7/2017 Amendment). Litman cannot have failed to mitigate access he was perpetually licensed to.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | Litman's 4/22/2021 + 4/30/2021 + 5/1/2023 + 6/10/2025 + 6/24/2025 emails | Documented mitigation efforts beginning 5+ years before suit |
| 2 | Goldberg's silent CN-37833 removal 5/1/2025 12:43 PM (project_cn37833_removal.md) |
Proves only Goldberg/NGM had control of the cure; Litman could not have done this himself |
| 3 | Answer ¶ 39 (disability admission) + arbitration "disability = death" position | Estops Goldberg from arguing physically able mitigation was possible |
Trial-only defense. A motion to strike is unlikely to succeed because mitigation pleads no specific facts that the court can rule on at the pleading stage; it is by nature a damages-side, fact-bound issue.
However, a CPLR 3041 Bill of Particulars demand is appropriate: require Goldberg to identify (a) what mitigation steps he claims Litman failed to take, (b) when Litman should have taken them, (c) what specific damages would have been avoided, and (d) the supporting factual basis. He cannot answer credibly given the 5-year written-objection record.
This is the only defense besides the Second that is not pure boilerplate. It cannot bar the suit; it is a damages-side trim. Treat it as a discovery target: take Aaron Gould's deposition on the 9/3/2025 "proposed use agreement" (Finding #119) — Gould's attempt to negotiate a license post-suit confirms NGM's view that no license previously existed and that Litman's mitigation steps had been adequate as of that date.
Tell counsel: this defense is real but limited. It does not change Plaintiff's settlement floor. At trial, frame mitigation as a defendant-control issue.
"Plaintiff has suffered no damages as a result of the conduct of Defendant."
A defense of "no damages" must be pleaded with sufficient particularity to give notice. As a categorical defense, it is rarely successful in NY where the statute itself authorizes damages or where damages are inherent in the cause of action.
NY Civil Rights Law § 51 creates three independent remedies: - (i) Equitable relief — "may maintain an equitable action." - (ii) Compensatory damages — "may also sue and recover damages for any injuries sustained by reason of such use." - (iii) Exemplary damages — "if the defendant shall have knowingly used such person's name… in such manner as is forbidden or declared to be unlawful by section fifty, the jury, in its discretion, may award exemplary damages."
Even if Plaintiff proved no compensatory damages, the equitable and exemplary remedies remain. Lerman v. Flynt Distrib. Co., 745 F.2d 123 (2d Cir. 1984) (applying NY law); Welch v. Mr. Christmas Inc., 57 N.Y.2d 143 (1982). The defense as pleaded is a non-starter.
project_court_status.md MSJ Three Elements: $18.53M is undisputed.project_damages_anchor_corrected.md).project_q1_2026_payment.md).§ 51's "exemplary damages" provision is triggered by knowing use without consent. The record establishes "knowing" use multiple ways:
- Goldberg's pleaded admission (¶ 32, ¶ 72) of name appearance on patent face pages and website.
- Goldberg's denial of his own recorded Nunc Pro Tunc Assignment (Reel 007281 / Frame 0821) — false denial of document acknowledging "Assignor owns his name, signature, voice, image, photograph or likeness."
- The 5-act erasure timeline (project_cn37833_removal.md) — systematic post-suit removal proves prior knowing use.
- Spoliation (project_freedom_bank.md + project_q1_2026_payment.md).
- 2/17/2026 AR Report personally requested by Goldberg — project_ar_report_responsible_jbg.md.
Even if a jury awarded $0 compensatory, the Court can enjoin further use, order accounting, and order removal of remaining identity uses. Onassis v. Christian Dior-N.Y., Inc., 122 Misc. 2d 603 (Sup. Ct. N.Y. Cnty. 1984) (injunctive relief under § 51 is mandatory upon liability finding).
NY law recognizes nominal damages where the statutory tort is proven but compensatory amount is zero. Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95 (1993) (general rule on nominal damages); Boykin v. American Telephone & Telegraph Co., 7 A.D.2d 825 (1st Dep't 1959). A defense of "no damages" cannot defeat a nominal-damages award.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | NGM PARs (website/financial_attachments/) — 19 monthly Payment Allocation by Client Reports |
NGM's own records calculate $2.1M–$2.4M as Litman's 20% share over 22-24 months — this is NGM's own number, not Plaintiff's |
| 2 | Q1 2026 Aaron Gould backup package (4/17/2026, 36 files in evidence/ngm_q1_2026_payment_backup_20260417/) |
$1.3M outstanding AR Apr 2026 attributed to Litman; $1.59M trust positions vanished Feb 1, 2026 |
| 3 | NY § 51 statutory text (injunctive + exemplary remedies) | Even if $0 compensatory, equitable and exemplary remedies remain |
CPLR 3211(b) motion to strike — viable. "No damages" categorically asserted against a statutory tort with multiple independent remedies is non-meritorious. Alternatively, CPLR 3212 partial summary judgment declaring that Plaintiff is entitled to (at minimum) injunctive relief and exemplary damages on liability finding.
Strike. The defense conflates "compensatory damages amount" with "any damages." § 51's three-track remedy structure means a no-damages defense fails as a matter of law. Use the strike as a vehicle to lock in the legal framework: liability + statutory remedies operate independently of compensatory quantum. This forecloses Goldberg from arguing at trial that "no specific dollar damages = no recovery."
"Plaintiff's claims are barred based on his implied and/or express consent."
NY § 50 requires written consent for commercial name use. Welch v. Mr. Christmas Inc., 57 N.Y.2d 143, 148 (1982) ("the consent statute… requires written consent"). § 51 is consistently read to require an unambiguous, signed writing. Defendant bears the burden of producing the consent document. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 497 (1978).
Required showing: (1) A written, signed instrument; (2) Knowing and unambiguous; (3) For the specific use complained of; (4) Effective at the time of the use (i.e., not revoked).
See output/research_2026_04_28_overnight/PRE_2020_CONSENT_AUDIT.md for the full deep-dive. Restated here in summary form for uniformity with this pack:
output/BOTH_AGREEMENTS_COMPLETE_ANALYSIS.html § 4.Goldberg won the arbitration on the position that the Combination Agreement terminated 6/15/2020 (1/18/2023 MSJ + 5/24/2023 Post-Arb Brief). A terminated agreement cannot grant continuing consent. D&L Holdings, LLC v. Goldman, Sachs & Co., 287 A.D.2d 65, 71-72 (1st Dep't 2001).
¶ 39 of the Answer admits Litman became "physically disabled" June 2020. Goldberg's arbitration position was disability = death = same-day termination. A "disabled = died" person cannot give § 51 consent for post-disability uses. The arbitrator accepted this position. Goldberg cannot reverse course in NY without (a) violating judicial estoppel and (b) conceding the disability admission was false.
Reel 007281 / Frame 0821 — recorded by Goldberg with USPTO — states "Assignor owns his name, signature, voice, image, photograph or likeness." Goldberg's own filed federal document carves out personal identity rights from the LLO transfer. ¶ 38 of the Answer denies this; the USPTO record speaks for itself.
| # | Document | Why it defeats the defense |
|---|---|---|
| 1 | Goldberg's 2/26/2026 sworn discovery response, Request No. 1 | Names only the Combination Agreements as consent basis; agreements contain no name-use clause |
| 2 | Nunc Pro Tunc Assignment (USPTO Reel 007281, Frame 0821) | Goldberg's own recorded federal document carves out personal identity rights from the LLO transfer |
| 3 | Litman's four written non-consent emails (4/22/2021; 4/30/2021; 5/1/2023; 6/24/2025) | Affirmative repudiation under Welch — even any prior implied consent is revocable and was revoked |
CPLR 3211(b) motion to strike — viable on the four corners of the agreements. Alternatively, CPLR 3212 partial summary judgment foreclosing implied-consent argument. See PRE_2020_CONSENT_AUDIT.md § 7.1 for full motion strategy.
This is the dispositive defense. If Plaintiff strikes or wins SJ on consent, the case is effectively decided on liability — Goldberg has admitted use (¶¶ 32, 72), trade purpose is undisputed, and the only remaining question becomes damages. Lead with this on the dispositive motion. See PRE_2020_CONSENT_AUDIT.md for full strategy memo.
| # | Defense | Strength | Recommended Motion | Best Supporting Exhibit |
|---|---|---|---|---|
| 1 | Statute of Limitations (general) | Frivolous | CPLR 3211(b) — strike for vagueness; duplicative of Second | NYSCEF Doc. No. 61 (12/5/2025 Order — only § 51 survives) |
| 2 | CPLR 215(3) one-year SOL for § 51 | Colorable as to scope only; cannot bar suit | Partial CPLR 3212 — limit damages window to post-7/21/2024; affirm separate-publication doctrine | The 12 post-7/21/2024 Lafave/Litman PTOL-85B patents (USPTO ODP API, locked 2026-04-25) |
| 3 | "First publication rule" (Nussenzweig) | Weak | CPLR 3211(b) / 3212 — misapplies Nussenzweig; Firth republication doctrine; 5-act erasure timeline | 5/1/2025 12:43 PM CN-37833 silent removal (Bates C2051472_ND0000069257) |
| 4 | Failure to state a cause of action | Frivolous | CPLR 3211(b) — already adjudicated 12/5/2025 (law of the case) | NYSCEF Doc. No. 61 (12/5/2025 Order preserving Count V) |
| 5 | Waiver / estoppel / laches / unclean hands (omnibus) | Frivolous | CPLR 3211(b) — duplicative + non-pleaded with particularity; alt. CPLR 3041 BoP demand | Litman's four written non-consent emails (4/22/2021; 4/30/2021; 5/1/2023; 6/24/2025) |
| 6 | Res judicata | Frivolous | CPLR 3211(b) — wrong claim, wrong forum; voluntary EDNY dismissal has no preclusive effect | 6/14/2023 Final Arbitration Award (no § 51 issue decided); EDNY voluntary dismissal of 1:25-cv-04048 |
| 7 | Collateral estoppel | Boomerang for Plaintiff | CPLR 3211(b) plus cross-motion CPLR 3212 invoking offensive collateral estoppel on (a) 6/15/2020 termination, (b) disability=death, (c) 20%=royalty, (d) NGM=alter ego | 6/14/2023 Final Award + 1/18/2023 Goldberg MSJ + 5/24/2023 Goldberg Post-Arb Brief |
| 8 | Failure to mitigate damages | Weak | Trial-only; CPLR 3041 Bill of Particulars demand to particularize; estop via disability admission | Litman's mitigation correspondence + 5/1/2025 CN-37833 removal proves only Goldberg/NGM had control of the cure |
| 9 | No damages | Frivolous | CPLR 3211(b) or partial CPLR 3212 — § 51's three independent remedies (equitable + compensatory + exemplary) | NGM PARs ($2.1M–$2.4M Litman 20% share) + Q1 2026 backup package ($1.3M outstanding AR Apr 2026) |
| 10 | Implied / express consent | Non-colorable (CPLR 3211(b) supported) | CPLR 3211(b) on four corners; alt. CPLR 3212 partial SJ foreclosing implied-consent argument | Goldberg's 2/26/2026 sworn discovery response (Combination Agreements only — no name-use clause) + Nunc Pro Tunc Assignment (Reel 007281, Frame 0821) + Litman's four non-consent emails |
Strength tally: 7 frivolous, 2 weak (Third + Eighth), 1 colorable as to scope only (Second). 1 boomerangs in Plaintiff's favor (Seventh).
Defenses with any colorable settlement-leverage merit: Only Second (limits damages window — already incorporated in Plaintiff's framing) and Eighth (mitigation — fact-bound trial issue; minor damages-side trim, not liability-side).
Motion 1 — Omnibus CPLR 3211(b) motion to strike Defenses 1, 4, 5, 6. Boilerplate with no factual support. Bahgat, Petracca. Estimated 8-12 pages. High win probability.
Motion 2 — CPLR 3211(b) motion to strike Defense 10 (consent). Per PRE_2020_CONSENT_AUDIT.md. Four-corners analysis of the Combination Agreements. Goldberg's 2/26/2026 sworn discovery response forecloses extension beyond the Agreements. High win probability.
Motion 3 — Cross-motion CPLR 3212 invoking offensive collateral estoppel. Lock in the four arbitration findings preclusive against Goldberg: 6/15/2020 termination, disability = death, 20% = royalty, NGM = alter ego. Highest leverage motion in the case.
Motion 4 — CPLR 3211(b) motion to strike Defenses 3 (Nussenzweig) and 9 (no damages). Both legally non-meritorious; first misapplies Firth, second contradicts § 51's statutory remedy structure.
CPLR 3041-3043 Bill of Particulars demand on Defenses 5 (omnibus equitable) and 8 (mitigation). Force Goldberg to identify specific facts; he cannot.
CPLR 3120 demand for Heba Carter custodial documents including 6/26/2025 "termination of affiliation" letter; 9/3/2025 Aaron Gould "proposed use agreement" drafts (Finding #119); September-October 2020 NGM partner-meeting minutes re Litman's status change.
Notice Aaron Gould (Connell Foley) for deposition on the 9/3/2025 "proposed use agreement" — confirms NGM's view that no existing license covers the use (admission against interest on Tenth Defense).
Reserve Defenses 2 (SOL scope) and 8 (mitigation) for damages-phase / charge conference. Plaintiff already plans to segment damages by SOL window (project_sol_willfulness_framework.md); mitigation goes to jury instruction on damages calculation only.
Liability is effectively pre-decided if motions 1-3 succeed: - Element 1 (use of name) — admitted (¶¶ 32, 72) - Element 2 (trade purpose) — undisputed ($18.53M+) - Element 3 (within NY) — undisputed (website + correspondence) - Element 4 (no written consent) — established by motion practice
Damages-only trial on: quantum + exemplary multiplier + scope of injunctive relief.
Plaintiff should approach settlement knowing:
project_sol_willfulness_framework.md).There are no hidden weak spots. The defense pleading provides no settlement leverage to Goldberg beyond what was already known (SOL window for liability + mitigation as a damages-side fact issue). Plaintiff's $11.1M–$29.6M damages corridor (project_court_status.md) remains intact; the corrected 20% share anchor of $2.1M–$2.4M (project_damages_anchor_corrected.md) is the deferred-payment baseline.
NYSCEF court filings (read in full):
- court_filings/NYSCEF_524343_2025/NYSCEF_Doc_65_Answer_Affirmative_Defenses_Goldberg_2026-01-20.pdf — primary source, 16 pp
- court_filings/Goldberg_Discovery_Responses_2026-02-26.pdf — 10 pp; consent theory limited to Combination Agreements
- NYSCEF Doc. No. 61 (12/5/2025 Order) — dismissal of Counts I-IV, preservation of Count V
Companion analysis:
- output/research_2026_04_28_overnight/PRE_2020_CONSENT_AUDIT.md — full deep-dive on Tenth Defense
Memory references:
- feedback_ny_state_rules.md — CPLR 3211(b) governs; cite NY State authorities only
- feedback_validate_every_number.md — every figure traced and verified against source
- feedback_publication_framing.md — § 50-51 frame as Goldberg-caused publication
- feedback_royalty_not_commission.md — 20% is a royalty
- feedback_deferred_payment_not_back_pay.md — call it deferred payment for the Practice
- project_court_status.md — case posture, defenses-defeated catalog
- project_sol_willfulness_framework.md — 7/21/2024 SOL boundary; pre-SOL goes to willfulness
- project_post_sol_aor_split.md — 12 vs. 449 patent split, USPTO ODP API verified
- project_ptol85b_smoking_gun.md — Box 2 typed-entry per-patent election
- project_cn37833_removal.md — 5-act erasure timeline + 5/1/2025 silent removal
- project_freedom_bank.md — spoliation centerpiece
- project_damages_anchor_corrected.md — $2.1M / $2.4M is the 20% share itself
- project_q1_2026_payment.md — Q1 2026 backup; $1.3M AR Apr 2026
- project_jurisdiction.md — DC + VA admissions; not NY for Goldberg/NGM
- project_disability_insurance.md — disability sword
- project_kfu_daily_pattern.md — 24,797 KFU email volume
- project_uncle_email_theory.md — emails as separately-dated § 51 uses
- project_ar_report_responsible_jbg.md — 2/17/2026 AR Report Goldberg-requested
Critical findings cross-referenced: - Finding #4 — Consent defense destroyed - Finding #15 — Judicial estoppel - Finding #16 — "Purely as a courtesy" admission - Finding #20 — 7/6/2021 professional-liability application "Of Counsel" - Finding #119 — Gould 9/3/2025 "proposed use agreement"
Prepared for litigation support in Litman v. Goldberg, Index No. 524343/2025, NY Sup. Ct., Kings County. Draft for counsel review. All numbers traced to source per feedback_validate_every_number.md. Authorities limited to NY CPLR + Court of Appeals + Appellate Division per feedback_ny_state_rules.md.