Litman v. Goldberg — Index No. 524343/2025 (NY Sup. Ct., Kings County, Hon. Brian L. Gotlieb, J.S.C.) Memo author: Mike (per Plaintiff's directive 2026-04-25; revised v1.2 same day to reflect correct SOL boundary) Subject: How to use pre-statute-of-limitations evidence — without inviting an SOL bar on the actionable claims.
This case has two distinct boundary dates, and conflating them causes serious framing errors:
| Date | Legal significance |
|---|---|
| 6/15/2020 | Judge-set start date of the post-termination period of use. This is the court-recognized scope of conduct. It is not an SOL boundary. Conduct before this date is "pre-termination" background; conduct on or after this date is within the recognized post-termination period. |
| 7/21/2024 | Statute of limitations cutoff under CPLR 215(3) (1-year SOL for NY Civ Rights L § 51 actions; complaint filed ~7/21/2025). Uses after this date are independently actionable on their own 1-year SOL window. Uses before this date are time-barred as standalone claims, but admissible for the purposes catalogued in this memo. |
This memo concerns evidence falling before 7/21/2024 — including both: - Pre-Termination Period (before 6/15/2020) — background / value foundation only. - Post-Termination, Pre-SOL Window (6/15/2020 – 7/21/2024) — within the court-recognized scope of conduct, but past the 1-year SOL for any standalone claim. These uses are highly probative for willfulness, course of conduct, notice, value, and pattern, but they are not pleaded as actionable § 51 claims in their own right.
Plaintiff has identified extensive pre-7/21/2024 evidence relevant to the surviving Count V (NY Civ Rights L §§ 50-51). The threshold doctrinal question is: how do we use this evidence without (a) handing the defense a single-publication / SOL argument, or (b) collapsing into a "started in 2017" narrative that invites the court to time-bar even the post-7/21/2024 claims?
This memo establishes the four permissible evidentiary purposes for pre-SOL material, the doctrinal authorities that authorize each, and a per-purpose deployment checklist tying the rule to specific items in the existing corpus.
Section 51 actions accrue on each new publication of the name and are governed by the 1-year SOL of CPLR 215(3). Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007), holds that the single-publication rule applies to mass-distributed editions of the same image — but New York treats separately distributed commercial uses as distinct accrual events. See also Firth v. State, 98 N.Y.2d 365 (2002) (single-publication rule limited to a single distributed edition; republication restarts the clock).
Three consequences flow from this:
Each post-7/21/2024 use is independently actionable within its own 1-year window. Our deck-of-cards theory rides this directly: each USPTO outgoing document, each client email, each NGM website refresh, each domain-alias-routed message after 7/21/2024 = a separate accrual event with its own SOL window.
Post-termination, pre-SOL uses (6/15/2020 – 7/21/2024) are not actionable as standalone claims because each one's individual 1-year window expired before the complaint was filed. They are admissible for purposes that do not depend on liability accrual within the limitations window — chief among them willfulness, course of conduct, notice, and the unit value of post-7/21/2024 uses.
Pre-termination evidence (before 6/15/2020) is not actionable under any post-termination theory. It is admissible only as foundation for the commercial value of Plaintiff's name (the imprimatur built before NGM began trading on it).
Critical framing rule. Plead the post-7/21/2024 uses as the wrongs. Offer the post-termination pre-SOL uses (6/15/2020 – 7/21/2024) in support of willfulness, course, notice, and per-use value. Offer the pre-termination evidence (pre-6/15/2020) as foundation for commercial value of name. Never plead or argue that pre-7/21/2024 conduct is itself the actionable wrong on the surviving Count V.
Theory. § 51 measures damages by the commercial value of the name used. Commercial value is built over time. Pre-termination evidence (pre-6/15/2020) of Plaintiff's professional reputation, client base, billing history, prosecution record, professional standing, public-facing publications, and industry recognition is directly probative of what NGM was getting when it used the name post-6/15/2020 — and especially what each individual post-7/21/2024 use was worth.
Authority. Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018) (commercial value of a name turns on its market recognition; pre-suit reputation evidence is admissible to establish that value). Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984) (compensatory damages under § 51 measure the value of the unauthorized use).
Pre-termination evidence available in the corpus that serves this purpose: - Plaintiff's 30+ year prosecution record (905 issued patents in the post-6/15/2020 dataset alone — pre-termination record is much larger and establishes the pre-existing imprimatur) - Engagement-origin documents for the six ME clients (KFU, KSU, UAEU, Kuwait U, SQU, QF) — all relationships predate 6/15/2020 and the value at stake later is the value of those relationships - LITMAN LAW OFFICES naming history; trademark dockets - Pre-termination client-side correspondence addressing Plaintiff personally ("Mr. Litman," "Richard," "our attorney") — establishes the imprimatur NGM later traded on - Pre-termination NGM website pages showing how the firm publicly identified Plaintiff to prospective clients - Industry recognition / professional honors (if any in the corpus)
Framing language:
"Plaintiff's name had, by 6/15/2020, a substantial commercial value built over [N] years of professional practice and client relationships. The fair-market measure of each Defendants' post-7/21/2024 unconsented use is anchored in that pre-existing commercial value."
Theory. § 51's punitive-damages enhancement requires that the use was "knowing." The entire 6/15/2020 – 7/21/2024 post-termination, pre-SOL window is the strongest willfulness evidence in the case: it shows Defendants continued the unconsented use for years after the judge-set termination boundary, and continued using it past the AAA award (6/14/2023), establishing the post-7/21/2024 actionable uses as the deliberate continuation of a long-running pattern Defendants knew was without authority.
Authority. Welch v. Mr. Christmas Inc., 57 N.Y.2d 143 (1982) (knowledge / willfulness inferred from pattern of conduct, including pre-actionable conduct that put defendant on notice).
Pre-SOL evidence available: - The entire 6/15/2020 – 7/21/2024 post-termination, pre-SOL use record — every patent face, every USPTO outgoing document, every Martha Long client email, every domain-alias routing in this window. Each one is not a standalone claim but each one is willfulness evidence for the post-7/21/2024 actionable uses. - Pre-termination internal Goldberg communications about Plaintiff's status, contributions, and partnership terms - Pre-termination partnership/equity documents establishing Plaintiff's role and the absence of any standing license to commercialize his name post-departure - Pre-termination client-engagement letters specifying the personal-attorney-client relationship between client and Plaintiff (not NGM as a firm) - 2017 agreement / consent-defense documents (per Plaintiff's standing scope rule, pre-6/15/2020 material is in scope only for this defense and the agreement) - Anchor willfulness exhibits already catalogued in the post-termination, pre-SOL window: - LITMAN209485 (12/20/2023 KFU — Goldberg "our attorney") - LITMAN267104 (6/11/2024 UAEU — Goldberg "one of our attorneys") - LITMAN272429, 272449, 272454, 274979, 274981 (Sept 2021 KFU "new dean" thread) - And the 6/15/2020 – 7/21/2024 portion of the 23,508-use ME-client corpus - Anchor willfulness exhibits in the post-SOL window also serve to connect this notice chain to the actionable period: - LITMAN250428, LITMAN250429 (8/26/2024 KSU — Goldberg "our attorney") — post-SOL, but reads against the pre-SOL pattern as proof Defendants didn't change course
Framing language:
"By 7/21/2024, Defendants had been on notice for at least four years (since the 6/15/2020 termination) and at least one year (since the 6/14/2023 AAA award) that the personal-attorney-client relationship and the commercial value of Plaintiff's name belonged to Plaintiff. Their post-7/21/2024 conduct is not consistent with mistake or oversight; it is the deliberate continuation of a use Defendants knew was without authority."
Theory. Pre-SOL conduct (both pre-termination and post-termination, pre-SOL) is admissible as habit / routine practice under NY common law (Halloran, infra) to show that the same actors followed the same playbook in the actionable post-7/21/2024 window. Goldberg's pre-SOL pattern of filing patents under Plaintiff's name without checking with him, of holding out Plaintiff to clients, of routing client correspondence through Litman-named domain aliases — all probative that the post-7/21/2024 same-pattern uses were not isolated, not accidental, and not authorized.
Authority. Halloran v. Virginia Chemicals Inc., 41 N.Y.2d 386 (1977) — the leading NY decision on habit / routine-practice evidence: such evidence is admissible to show conformity in the actionable instance, where the habit is sufficiently regular and the conduct is "deliberate and repetitive." NY common law; CPLR does not have an explicit Federal Rule 406 analogue, but the doctrine is well-established.
Pre-SOL evidence available: - The 6/15/2020 – 7/21/2024 portion of the 23,508 ME-client commercial-use corpus — direct evidence of the routine that continued past 7/21/2024 - POA / PTOL-85B signing patterns (16 Goldberg POA signatures with confirmed forensic OCR — established habit) - Pre-SOL client-correspondence templates (Martha Long emails using "our attorney" or attaching documents under Plaintiff's name) - Pre-SOL domain-alias routing (kfu@4patent.com, ksu@4patent.com, etc. — systematic per-client infrastructure) - Pre-SOL trust-ledger / billing patterns (per Plaintiff: relevant to the routine of attributing matter revenue to Plaintiff while substituting Goldberg as actual counsel)
Framing language:
"The post-7/21/2024 conduct at issue is not a deviation from but a continuation of an established routine. The pre-SOL record (6/15/2020 – 7/21/2024) establishes that routine in granular detail and forecloses any defense theory that the actionable post-SOL conduct was inadvertent or anomalous."
Theory. Damages experts and triers of fact need a baseline of what Plaintiff's name was worth before the alleged misappropriation began. Pre-SOL fee schedules, billing rates, partner-distribution percentages, and client-revenue figures give the pricing comparators for the per-use and per-patent damages methodologies.
Authority. Generally accepted damages-calculation foundations; not a contested doctrine. The court will accept pre-period financial data as input to a damages calculation so long as the calculation itself targets the actionable period (post-7/21/2024).
Pre-SOL evidence available:
- Plaintiff's pre-termination partnership distribution percentages (the 20% baseline used in the $424K–$928K anchor)
- Pre-SOL KISR flat-fee schedule and similar client-pricing documents (Bates C2051472_ND0000271385)
- Pre-SOL NGM trust-ledger / receivable patterns establishing baseline revenue per client per matter
- Pre-SOL office-rent and overhead figures (relevant to disgorgement calculation)
- Pre-SOL patent-prosecution fee history (to validate the $15K–$20K/patent fee baseline)
- 6/15/2020 – 7/21/2024 fee and revenue record — establishes the during-pattern unit economics, which the post-7/21/2024 uses inherit
Framing language:
"Calculation of Plaintiff's damages under the [fair-market / disgorgement] measure requires baseline pricing inputs. The pre-SOL fee and revenue record supplies those inputs; the calculation itself is performed against actionable post-7/21/2024 uses."
To preserve the four permissible purposes, the following uses are off-limits and must be policed in every draft:
When assembling any binder (Track 1 or Track 2), apply this filter to each pre-7/21/2024 exhibit:
If the answer to any of these is no, the exhibit either needs re-framing or it should not be in the binder.
Defendants will argue that NGM's distribution of patent front pages, website content, or client emails is a "single publication" that accrued once and is now time-barred. Three rebuttals:
Each use is a distinct distribution. A patent front page issued in 2024 is not the same publication as a 2019 page; an email sent on 12/20/2023 is not the same publication as one sent in 2018. Firth limits the single-publication rule to the same distributed edition; we have separate editions / separate distributions.
Republication restarts the clock. Even where a single edition exists, republication on a new platform, in a new format, or to a new audience restarts accrual. The 4patent.com domain alias infrastructure (kfu@, ksu@, etc.) routes communications through new channels post-arbitration; each is a new publication.
The deck-of-cards theory is consistent with NY law. Nussenzweig limits aggregation; it does not support the defense reading that hundreds of distinct USPTO documents and tens of thousands of distinct client emails are all one publication. We expect the defense to over-read the rule and we will distinguish on the record.
output/GLOSSARY.md as quotable strings.Filed: 2026-04-25 (v1.2 — corrected SOL boundary per Plaintiff: 7/21/2024 is the SOL cutoff under CPLR 215(3); 6/15/2020 is the judge-set start of post-termination use, not an SOL boundary. v1.1 confirmed NY-state authorities throughout.).
See also: output/GLOSSARY.md (vocabulary, including corrected time-window labels), output/USE_TIER_WEIGHTING_TABLE.md (damages framework), output/IMPRIMATUR_EVIDENCE_BY_CLIENT.md (Purpose A foundation), output/CUSTODIAN_DECLARATION_TEMPLATE.md (CPLR 2106 affirmations for foundation exhibits).