Preview
FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021
NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BARRY HERSKO,
Index No.: 519449/2021
Plaintiff,
-against-
MORRIS HERSKO and SARA G. HERSKO,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION OF PLAINTIFF’S
MOTION FOR LEAVE TO REARGUE
ABRAMS FENSTERMAN, LLP
Melanie I. Wiener, Esq.
Anthony J. Genovesi, Esq.
1 MetroTech Ctr, Suite 1701
Brooklyn, NY 11201
718-215-5300
Attorneys for Defendants
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL HISTORY AND PROCEDURAL BACKGROUND ...................................................... 2
LEGAL ARGUMENT .............................................................................................................................. 4
POINT I ....................................................................................................................................................... 4
PLAINTIFF HAS FAILED TO MEET HIS BURDEN, THEREFORE HIS MOTION MUST BE
DENIED IN ITS ENTIRETY ................................................................................................................... 4
A. Plaintiff has failed to assert new facts which would warrant the Court to grant his motion
for leave to renew. ....................................................................................................................... 4
B. The Court did not overlook or misapprehend matters of fact and law when deciding
Plaintiff’s motion to compel. ....................................................................................................... 7
i. The March Order does not bar the Plaintiff from seeking party discovery, rather it
acknowledges that Plaintiff has the ability to obtain the documents he desires from his own
attorney. ................................................................................................................................... 8
ii. The Court did not overlook any facts and has already considered all arguments
Plaintiff asserts in his moving papers. ..................................................................................... 8
C. The Court has already determined the relevancy of the documents Plaintiff seeks. ........ 10
CONCLUSION ........................................................................................................................................ 11
CERTIFICATION REGARDING WORD LIMIT ............................................................................. 12
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TABLE OF AUTHORITIES
Cases
Ahmed v. Pannone, 116 A.D.3d 802 (2d Dep’t 2014) .................................................................... 8
Gall v. Colon-Sylvain, 151 A.D.3d 701 (2d Dep’t 2017) ............................................................... 5
McGill v. Goldman, 261 A.D.2d 593 (2d Dep’t 1999) ................................................................... 7
Schneider v. Solowey, 141 A.D.2d 813 (2d Dep’t 1988) ................................................................ 7
Statutes
CPLR §2221(d) ............................................................................................................................... 7
CPLR §2221(e) ........................................................................................................................... 4, 5
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Defendants Morris Hersko and Sara G. Hersko (“Defendants”) respectfully submit this
memorandum of law in opposition to Plaintiff’s motion for leave to renew or reargue his motion
to compel (see Affirmation of Melanie I. Wiener dated May 9, 2024 (“Wiener Aff.”) at Exhibit A
NYSCEF Doc. Nos. 115-122 (Plaintiff’s moving papers); 136-143 (Defendants’ opposition) which
was denied by the Court on March 14, 2024. See Weisel Aff. at Exhibit B NYSCEF Doc. No. 163
(March 14, 2024 Order with Notice of Entry “March Order”).
PRELIMINARY STATEMENT
Plaintiff has filed another frivolous motion in an attempt to find one iota of proof to support
his otherwise baseless claims. This time, the Plaintiff is going so far as to say the Court was
completely erroneous and must give Plaintiff a second bite of the apple. Plaintiff’s motion papers
start by accusing Defendants of some “strategy” to engage in bad faith to thwart Plaintiff’s success
on his claims. Plaintiff has made this argument to the Court countless times, the Court has
considered these arguments countless times, and the Court has rejected same countless times.
It is well settled in New York that a motion to renew must be based on new facts not offered
on the prior motion that would change the prior determination. Here, Plaintiff is leading the Court
to believe that there are new facts that would warrant leave to renew, including the fact that
Defendants dispute Plaintiff’s role in these alleged loans. As discussed further herein, this fact is
not new, and Plaintiff has been aware of Defendants’ argument since the inception of this matter.
Furthermore, a motion to reargue must be based upon matters of fact or law allegedly overlooked
or misapprehended by the court in determining the prior motion. Plaintiff has not offered any facts
or law that the Court allegedly overlooked. Plaintiff is essentially arguing that the March Order
permits Defendants to evade their CPLR responsibility and not produce records. However, this
argument is meritless. The March Order simply clarifies that if Plaintiff wants irrelevant
documents, such as bank statements (which the Court has already ruled are irrelevant), then he
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should stop harassing the Defendants and obtain the documents from his own attorney.
Plaintiff’s motion for leave to renew and reargue is fundamentally inappropriate and must
be denied.
FACTUAL HISTORY AND PROCEDURAL BACKGROUND
While this Court is familiar with the history and procedural background of this case after
numerous oral arguments, Plaintiff still provides the Court with an inaccurate representation of the
underlying facts that led to Plaintiff commencing this action. Defendants vehemently deny the
allegations therein and refer the Court to its Answer (see Wiener Aff. at Exhibit C, NYSCEF Doc
No. 78). Defendants also refer to the Court to its Memorandum of Law submitted in support of its
summary judgment motion for a recitation of pertinent facts that support the within application
(see Wiener Aff. at Exhibit D, NYSCEF Doc No. 179).
Furthermore, although the Court is well-aware of the issues concerning discovery, as they
have been argued ad nauseum by the Plaintiff, Plaintiff’s representations concerning discovery
must be addressed. Unlike Plaintiff, Defendants promptly responded to Plaintiff’s discovery
demands. On June 20, 2023, Defendants provided their objections and responses and promptly
informed Plaintiff that they do not have any further responsive documents to produce. Unsatisfied
with Defendants’ production, Plaintiff brought two (2) nonsense motions, to wit: to extend
discovery deadline and the underlying motion to compel further production. The Court twice
(emphasis added) denied Plaintiff’s motions finding the documents Plaintiff sought to be
irrelevant. See Wiener Aff. at Exhibit E NYSCEF Doc. No. 113 (October 31, 2023 Order); see
also Exhibit B NYSCEF Doc. No. 164 (March 14, 2024 Order).
The Court’s March Order, which Plaintiff frivolously seeks leave to renew and/or reargue
herein, fully grasped and recounted the factual background of this matter, the parties’ positions,
and the never-ending discovery issues. Plaintiff now attempts to highlight that they want a different
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category of documents, but all Plaintiff really wants are Defendants’ bank records – which the
Court has already ruled on twice to date. Defendants have previously made it clear that they
acknowledge receipt of the four loans; however, they refute the allegations that the Plaintiff was
the individual who provided the monies. The monies were withdrawn from the attorney escrow
account of Abraham Weisel, Esq. (“Weisel”), of which Isaac Hersko (“Isaac”) is 50% owner. See
Wiener Aff. at Exhibit F NYSCEF Doc. No. 174 (April 21, 2022 Default Orders); see also Wiener
Aff. at Exhibit G NYSCEF Doc. No. 175 (2d Dep’t February 21, 2024 Order affirming the Default
Orders) (collectively Default Orders and 2d Dep’t Order). This argument is not new to the Plaintiff
and Plaintiff should not be permitted to succeed on a third filed motion (emphasis added) seeking
to reargue what has already been decided by the Court.
Additionally, the Court correctly held that the communications and financial records
Plaintiff seeks between Defendants and Abraham Weisel (“Weisel”), who is Plaintiff’s attorney,
can easily be obtained from Weisel – as Weisel is Plaintiff’s agent. See March Order. Plaintiff
clearly does not have the requisite documents in his possession that support his claims to meet his
prima facie burden because he was never the party who funded or provided any alleged loan.
Moreover, Plaintiff’s recitation of the subsequent discovery and proceedings in the matter
also do not support Plaintiff’s current application. Weisel was deposed on March 26, 2024 in the
within matter and revealed that he was unable to find any documents in his possession relating to
Plaintiff’s claims and the alleged loans. See Wiener Aff. at Exhibit H NYSCEF Doc. No. 203
(Deposition Transcript) (12:20-13:21, 192:20-24, 193:6-11, 198:20-199:8). Plaintiff is utilizing
this testimony in an attempt to persuade the Court to grant leave to renew; however, scattered
throughout Plaintiff’s papers, Plaintiff now states that he was previously aware that Weisel does
not have any documents to support his allegations. See ex. Plaintiff’s Memorandum of Law in
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support of his motion to reargue (“Plaintiff’s MOL) at pg. 2 (“Plaintiff tried to obtain the subject
documents from Weisel (and other non-parties) before moving to compel production from
Defendants – non-party does not have the subject documents”). Not only does Plaintiff not give
details of when he became of aware of this or any other details surrounding his inquiry, but this
new assertion completely contradicts previous statements by Plaintiff’s counsel (see the
Memorandum of Law of Craig Flanders, Esq. dated October 12, 2022 (See Wiener Aff at Exhibit
I NYSCEF Doc. No. 63) (“All of the loan amounts were made by Barry directing his counsel, Avi
Weisel, to tender the payments from Barry’s escrow account to the Defendants, and all loans were
memorialized in the attorney’s escrow ledger”) and should not be countenanced by the Court
considering Plaintiff has relied on this position since the filing of the Amended Complaint. This is
just another example of Plaintiff’s baseless claims that he will not be able to prove.
Lastly, it must be pointed out that Defendants have indeed responded to Plaintiff’s notice
to admit, interrogatories, discovery demands, etc. while appropriately reserving rights and
objections where necessary. Plaintiff’s claims to the contrary are belied by the Defendants’
responses themselves.
LEGAL ARGUMENT
POINT I
PLAINTIFF HAS FAILED TO MEET HIS BURDEN, THEREFORE HIS MOTION
MUST BE DENIED IN ITS ENTIRETY
A. Plaintiff has failed to assert new facts which would warrant the Court to grant his
motion for leave to renew.
The Court must deny Plaintiff’s request for leave to renew as Plaintiff has not submitted
any new or additional facts that would warrant such an application. Pursuant to CPLR §2221(e), a
party may move to renew based upon “new facts not offered on the prior motion that would change
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the prior determination or shall demonstrate that there has been a change in the law that would
change the prior determination. See CPLR §2221(e); see also Gall v. Colon-Sylvain, 151 A.D.3d
701, 703 (2d Dep’t 2017). The movant is statutorily required to provide reasonable justification
for the failure to present such facts on the prior motion. See id.; see also Matter of Shapiro v. State
of New York, 259 A.D.2d 753 (2d Dep’t 1999) (“leave to renew should be denied unless the moving
party offers a reasonable excuse as to why the additional facts were not submitted in the original
application”).
Plaintiff failed to meet his burden on his motion for leave to renew as Plaintiff has not
offered any new facts that would warrant reversal or revision of the March Order. Instead, Plaintiff
recycles previous arguments that have previously been considered by the Court that there are
outstanding “issues” that require further discovery. The several arguments Plaintiff raises in
support of his motion are meritless.
Plaintiff argues that there are “new” issues in dispute that were not disputed when the Court
decided the March Order and therefore, these issues should be considered new facts that warrant
renewal; to wit: Defendants dispute that they received the funds from the Weisel escrow account;
and Defendants dispute that the source of funds used to pay down the TD Mortgage was the loaned
funds from Plaintiff.
Since October 2023, when this case was first argued before Judge Ruchelsman, Defendants
clarified their position legally and factually - the Defendants received the money alleged herein
from Weisel’s escrow attorney account but that the monies received through the account were
funded from Isaac, and not Plaintiff, as Isaac is a 50% owner of the funds in Weisel’s escrow
account. Plaintiff cannot claim that these are “new facts” that were not considered when the Court
entered the March Order. Defendants argued this specific issue numerous times in the past.
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Furthermore, Plaintiff’s reliance on Defendants’ responses to the Notice to Admit is also
meritless. Defendants raised appropriate objections and did not admit to specific requests for
admission based on said objections. Additionally, Plaintiff is well-aware that even though Weisel’s
attorney escrow account is titled “Barry Hersko”, it is funded by both Barry and Isaac, and
therefore Defendant cannot admit to the requests for admission related to the escrow account, as
Plaintiff would interpret this as an admission of Plaintiff’s allegations. Nevertheless, Defendants’
responses to Plaintiff’s Notice to Admit are not considered new facts that warrant leave to renew.
Similarly, Plaintiff’s argument that renewal is necessary due to Defendants’ motion for
summary judgment is misguided. Defendants do not introduce any new arguments on their motion
for summary judgment that would warrant additional document discovery or renewal.
Additionally, Plaintiff attempts to argue that Defendants have submitted a new document
in support of their summary judgment motion that was never produced in this matter. This
argument is ludicrous. The document Defendants submitted in support of their motion to dismiss
– NYSCEF Doc. No. 172 – is the partnership agreement between Plaintiff and Isaac, the same
document that Plaintiff’s attorneys Blank Rome have in their possession on behalf of Plaintiff in
all other related matters. The agreement does not reference the alleged loans herein, or the
properties associated with same. However, Defendants submitted the document to illustrate to the
Court the partnership agreement between Isaac and Plaintiff in support of their argument that Isaac
is the owner of 50% of the funds in the Weisel account. Plaintiff, and his attorneys, clearly have
this document in their possession, custody, or control and this is not considered “new” for the
purposes of this motion.
Lastly, Plaintiff argues that the testimony elicited from Weisel’s March 26, 2024 deposition
warrants the renewal of their motion to compel. Specifically, Plaintiff argues that Weisel testified
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that he does not have any documents in his possession, custody, or control regarding the loans and
this means that Defendants must produce the documents. Defendants do not know how many times
they need to say this to Plaintiff, but Defendants do not have the requested documents in their
possession, custody or control, as they do not exist. It was Plaintiff’s allegation that Weisel had
the requisite documents to assist Plaintiff in meeting his prima facie burden which is why Weisel
was subpoenaed. However, again, this is not a new fact requiring renewal. Plaintiff was aware of
this when he filed his original motion to compel and when the Court entered its March Order. In
fact, Plaintiff’s own moving papers (emphasis added) herein state how Plaintiff previously made
the Court aware that Weisel does not have any of these documents in his possession, custody, or
control. See Plaintiffs’ MOL pgs. 2, 6.
Plaintiff’s motion is nothing more than a poorly veiled effort to re-litigate the issues
previously before the Court and must be denied.
B. The Court did not overlook or misapprehend matters of fact and law when deciding
Plaintiff’s motion to compel.
Similarly, the Court must deny Plaintiff’s request for leave to reargue as he has utterly
failed to meet the statutory requirements. Pursuant to CPLR §2221(d), a party may move to reargue
“based upon matters of fact or law allegedly overlooked or misapprehend by the court in
determining the prior motion but shall not include any matters of fact not offered on the prior
motion.” See CPLR §2221(d). See McGill v. Goldman, 261 A.D.2d 593, 594 (2d Dep’t 1999). The
motion may be granted only when there is a showing that “the court overlooked or misapprehended
the facts or law or for some reason mistakenly arrived at its earlier decision”. See Schneider v.
Solowey, 141 A.D.2d 813 (2d Dep’t 1988). While the determination to grant leave to reargue lies
within the sound discretion of the court, a motion to reargue is “not designed to provide an
unsuccessful party with successive opportunities to reargue issues previously decided, or to present
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arguments different from those originally presented.” See Ahmed v. Pannone, 116 A.D.3d 802,
805 (2d Dep’t 2014).
i. The March Order does not bar the Plaintiff from seeking party discovery, rather it
acknowledges that Plaintiff has the ability to obtain the documents he desires from his
own attorney.
Plaintiff is mischaracterizing the nature and purpose of the March Order. Contrary to
Plaintiff’s contention, the March Order does not impose a standard that bars Plaintiff from
obtaining documents from Defendants. Rather, the March Order clearly grasps the fact that the
Plaintiff cannot prosecute his claims by relying on documents that Defendants may or may not
have. The March Order is not limiting party discovery but clarifying that Plaintiff has the power
and capability of seeking the records he so desperately needs from his own attorney Weisel.
Plaintiff’s Complaint alleges that his own attorney “memorialized” the alleged loans. What
documents was Plaintiff relying on when previously making this assertion? The Court
appropriately considered the Plaintiff’s request for the documents and denied all Plaintiff’s
requests.
ii. The Court did not overlook any facts and has already considered all arguments Plaintiff
asserts in his moving papers.
Contrary to Plaintiff’s contention, the Court did not overlook the fact that Plaintiff had tried
to obtain the subject documents from other sources. However, Plaintiff has not outlined or detailed
his efforts to obtain the discovery from any other source. the history of discovery is as follows:
1. On June 1, 2023, Plaintiff served document demands.
2. On June 20, 2023, Defendants served their responses and documents.
3. On August 23, 2023, Defendants informed Plaintiff that they do not have any
further documents in their possession, custody, or control responsive to
Plaintiff’s requests.
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4. On August 25, 2023, Plaintiff filed a motion to extend deposition deadlines so
that Plaintiff could receive further documents, specifically bank statements.
5. On August 31, 2023, Plaintiff filed a motion to quash a subpoena Defendants
served upon TD Bank.
6. On October 31, 2023, this Court denied Plaintiff’s motion to extend deposition
deadlines and explicitly held that bank statements are irrelevant and will not
prove Plaintiff’s claims that the monies were a loan.
7. On December 20, 2023, Plaintiff filed the underlying motion to compel.
8. On March 14, 2024, after extensive oral argument, the Court denied Plaintiff’s
motion to compel.
9. On March 26, 2024, Abraham Weisel was deposed and informed the parties
that he does not have any documents in his possession, custody, or control
concerning the alleged loans as previously alleged by Plaintiff.
In each motion, oral argument, court appearance, etc., the Plaintiff told his same tale that
he needs the requested documents and hasn’t been able to obtain them. The Court is well-aware of
the above history and considered this history and both parties’ arguments on all motions, especially
the motion to compel. Each time the Court rejected Plaintiff’s arguments and denied his requests.
Additionally, Plaintiff argues that the March Order overlooks the fact that not all of the
documents requested would be in Weisel’s possession, even though this has been Plaintiff’s
position since filing the Amended Complaint. This argument is false. The March Order
acknowledges that the documents Weisel would have in his possession are documents that reflect
the loans being given to the Defendants via checks and wires. Additionally, and contrary to
Plaintiff’s contention, the Court did consider the other documents in Plaintiff’s demand and motion
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to compel and explicitly stated that they would not support Plaintiff’s claims. See March Order pg.
5 (“Further, all the documents sought by the plaintiff suffer the same infirmities. They do not help
support any of the plaintiff’s allegations the money transferred were loans”). Defendants were the
proactive parties and attempted to obtain the records from Weisel and also subpoenaed and
deposed Weisel to locate these documents. However, as Plaintiff acknowledges, Weisel does not
have the requested records and therefore, Defendants cannot produce the records obtained from
Weisel.
C. The Court has already determined the relevancy of the documents Plaintiff seeks.
Plaintiff is continuing to raise the same recycled arguments that have already been raised,
argued and decided by this Court. Unsurprisingly, Plaintiff argues that the documents requested in
his underlying motion to compel are material and relevant. The Court has already ruled on the
relevancy of these documents and rejected Plaintiff’s claims in the March Order (pgs. 4-6) (“all
the documents sought by the plaintiff suffer the same infirmities. They do not help support any of
the plaintiff’s allegations that the money transferred were loans”) (and the October Order).
Furthermore, Plaintiff’s argument relies on alleged new “disputes” between the parties. To
clarify again, Defendants do not (emphasis added) “dispute” that they received the monies through
Weisel’s escrow attorney account. Rather, Defendants argue that the monies that were wired from
this account were funded by Isaac as he is the 50% owner of the funds in the escrow attorney
account. These monies did not come from Barry. This has always been Defendants’ position and
Plaintiff’s feigned surprise is not a basis for reargument or renewal.
Lastly, Defendants do not have any more responsive documents in their possession,
custody or control to produce. Plaintiff’s argument that the partnership agreement Defendants
submitted in support of their motion to dismiss “confirmed they [Defendants] are withholding
documents) (see Plaintiffs’ MOL at pg. 19) is baseless and should be ignored by this Court.
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CONCLUSION
For all the foregoing reasons, Defendants respectfully request that Plaintiff’s motion be
denied in its entirety.
Dated: May 9, 2024
Brooklyn, New York
ABRAMS FENSTERMAN, LLP
By:
Melanie I. Wiener, Esq.
1 Metrotech Center, Suite 1701
Brooklyn, New York 11201
(718) 215-5300
Attorneys for Defendants
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CERTIFICATION REGARDING WORD LIMIT
I, Melanie Wiener, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certify that this Memorandum complies with the word count limit set forth
in Rule 202.8-b of the Uniform Civil Rules because it contains 3,190 words, excluding the parts
of the Memorandum exempted by Rule 202.8-b. In preparing this certification, I have relied on
the word count of the word processing system used to prepare this Memorandum.
_____________________
Melanie I. Wiener
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Preview
FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BARRY HERSKO, Index No.: 519449/2021 Plaintiff, -against- MORRIS HERSKO and SARA G. HERSKO, Defendants. MEMORANDUM OF LAW IN OPPOSITION OF PLAINTIFF’S MOTION FOR LEAVE TO REARGUE ABRAMS FENSTERMAN, LLP Melanie I. Wiener, Esq. Anthony J. Genovesi, Esq. 1 MetroTech Ctr, Suite 1701 Brooklyn, NY 11201 718-215-5300 Attorneys for Defendants 1 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 FACTUAL HISTORY AND PROCEDURAL BACKGROUND ...................................................... 2 LEGAL ARGUMENT .............................................................................................................................. 4 POINT I ....................................................................................................................................................... 4 PLAINTIFF HAS FAILED TO MEET HIS BURDEN, THEREFORE HIS MOTION MUST BE DENIED IN ITS ENTIRETY ................................................................................................................... 4 A. Plaintiff has failed to assert new facts which would warrant the Court to grant his motion for leave to renew. ....................................................................................................................... 4 B. The Court did not overlook or misapprehend matters of fact and law when deciding Plaintiff’s motion to compel. ....................................................................................................... 7 i. The March Order does not bar the Plaintiff from seeking party discovery, rather it acknowledges that Plaintiff has the ability to obtain the documents he desires from his own attorney. ................................................................................................................................... 8 ii. The Court did not overlook any facts and has already considered all arguments Plaintiff asserts in his moving papers. ..................................................................................... 8 C. The Court has already determined the relevancy of the documents Plaintiff seeks. ........ 10 CONCLUSION ........................................................................................................................................ 11 CERTIFICATION REGARDING WORD LIMIT ............................................................................. 12 ii 2 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 TABLE OF AUTHORITIES Cases Ahmed v. Pannone, 116 A.D.3d 802 (2d Dep’t 2014) .................................................................... 8 Gall v. Colon-Sylvain, 151 A.D.3d 701 (2d Dep’t 2017) ............................................................... 5 McGill v. Goldman, 261 A.D.2d 593 (2d Dep’t 1999) ................................................................... 7 Schneider v. Solowey, 141 A.D.2d 813 (2d Dep’t 1988) ................................................................ 7 Statutes CPLR §2221(d) ............................................................................................................................... 7 CPLR §2221(e) ........................................................................................................................... 4, 5 iii 3 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 Defendants Morris Hersko and Sara G. Hersko (“Defendants”) respectfully submit this memorandum of law in opposition to Plaintiff’s motion for leave to renew or reargue his motion to compel (see Affirmation of Melanie I. Wiener dated May 9, 2024 (“Wiener Aff.”) at Exhibit A NYSCEF Doc. Nos. 115-122 (Plaintiff’s moving papers); 136-143 (Defendants’ opposition) which was denied by the Court on March 14, 2024. See Weisel Aff. at Exhibit B NYSCEF Doc. No. 163 (March 14, 2024 Order with Notice of Entry “March Order”). PRELIMINARY STATEMENT Plaintiff has filed another frivolous motion in an attempt to find one iota of proof to support his otherwise baseless claims. This time, the Plaintiff is going so far as to say the Court was completely erroneous and must give Plaintiff a second bite of the apple. Plaintiff’s motion papers start by accusing Defendants of some “strategy” to engage in bad faith to thwart Plaintiff’s success on his claims. Plaintiff has made this argument to the Court countless times, the Court has considered these arguments countless times, and the Court has rejected same countless times. It is well settled in New York that a motion to renew must be based on new facts not offered on the prior motion that would change the prior determination. Here, Plaintiff is leading the Court to believe that there are new facts that would warrant leave to renew, including the fact that Defendants dispute Plaintiff’s role in these alleged loans. As discussed further herein, this fact is not new, and Plaintiff has been aware of Defendants’ argument since the inception of this matter. Furthermore, a motion to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. Plaintiff has not offered any facts or law that the Court allegedly overlooked. Plaintiff is essentially arguing that the March Order permits Defendants to evade their CPLR responsibility and not produce records. However, this argument is meritless. The March Order simply clarifies that if Plaintiff wants irrelevant documents, such as bank statements (which the Court has already ruled are irrelevant), then he 1 4 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 should stop harassing the Defendants and obtain the documents from his own attorney. Plaintiff’s motion for leave to renew and reargue is fundamentally inappropriate and must be denied. FACTUAL HISTORY AND PROCEDURAL BACKGROUND While this Court is familiar with the history and procedural background of this case after numerous oral arguments, Plaintiff still provides the Court with an inaccurate representation of the underlying facts that led to Plaintiff commencing this action. Defendants vehemently deny the allegations therein and refer the Court to its Answer (see Wiener Aff. at Exhibit C, NYSCEF Doc No. 78). Defendants also refer to the Court to its Memorandum of Law submitted in support of its summary judgment motion for a recitation of pertinent facts that support the within application (see Wiener Aff. at Exhibit D, NYSCEF Doc No. 179). Furthermore, although the Court is well-aware of the issues concerning discovery, as they have been argued ad nauseum by the Plaintiff, Plaintiff’s representations concerning discovery must be addressed. Unlike Plaintiff, Defendants promptly responded to Plaintiff’s discovery demands. On June 20, 2023, Defendants provided their objections and responses and promptly informed Plaintiff that they do not have any further responsive documents to produce. Unsatisfied with Defendants’ production, Plaintiff brought two (2) nonsense motions, to wit: to extend discovery deadline and the underlying motion to compel further production. The Court twice (emphasis added) denied Plaintiff’s motions finding the documents Plaintiff sought to be irrelevant. See Wiener Aff. at Exhibit E NYSCEF Doc. No. 113 (October 31, 2023 Order); see also Exhibit B NYSCEF Doc. No. 164 (March 14, 2024 Order). The Court’s March Order, which Plaintiff frivolously seeks leave to renew and/or reargue herein, fully grasped and recounted the factual background of this matter, the parties’ positions, and the never-ending discovery issues. Plaintiff now attempts to highlight that they want a different 2 5 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 category of documents, but all Plaintiff really wants are Defendants’ bank records – which the Court has already ruled on twice to date. Defendants have previously made it clear that they acknowledge receipt of the four loans; however, they refute the allegations that the Plaintiff was the individual who provided the monies. The monies were withdrawn from the attorney escrow account of Abraham Weisel, Esq. (“Weisel”), of which Isaac Hersko (“Isaac”) is 50% owner. See Wiener Aff. at Exhibit F NYSCEF Doc. No. 174 (April 21, 2022 Default Orders); see also Wiener Aff. at Exhibit G NYSCEF Doc. No. 175 (2d Dep’t February 21, 2024 Order affirming the Default Orders) (collectively Default Orders and 2d Dep’t Order). This argument is not new to the Plaintiff and Plaintiff should not be permitted to succeed on a third filed motion (emphasis added) seeking to reargue what has already been decided by the Court. Additionally, the Court correctly held that the communications and financial records Plaintiff seeks between Defendants and Abraham Weisel (“Weisel”), who is Plaintiff’s attorney, can easily be obtained from Weisel – as Weisel is Plaintiff’s agent. See March Order. Plaintiff clearly does not have the requisite documents in his possession that support his claims to meet his prima facie burden because he was never the party who funded or provided any alleged loan. Moreover, Plaintiff’s recitation of the subsequent discovery and proceedings in the matter also do not support Plaintiff’s current application. Weisel was deposed on March 26, 2024 in the within matter and revealed that he was unable to find any documents in his possession relating to Plaintiff’s claims and the alleged loans. See Wiener Aff. at Exhibit H NYSCEF Doc. No. 203 (Deposition Transcript) (12:20-13:21, 192:20-24, 193:6-11, 198:20-199:8). Plaintiff is utilizing this testimony in an attempt to persuade the Court to grant leave to renew; however, scattered throughout Plaintiff’s papers, Plaintiff now states that he was previously aware that Weisel does not have any documents to support his allegations. See ex. Plaintiff’s Memorandum of Law in 3 6 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 support of his motion to reargue (“Plaintiff’s MOL) at pg. 2 (“Plaintiff tried to obtain the subject documents from Weisel (and other non-parties) before moving to compel production from Defendants – non-party does not have the subject documents”). Not only does Plaintiff not give details of when he became of aware of this or any other details surrounding his inquiry, but this new assertion completely contradicts previous statements by Plaintiff’s counsel (see the Memorandum of Law of Craig Flanders, Esq. dated October 12, 2022 (See Wiener Aff at Exhibit I NYSCEF Doc. No. 63) (“All of the loan amounts were made by Barry directing his counsel, Avi Weisel, to tender the payments from Barry’s escrow account to the Defendants, and all loans were memorialized in the attorney’s escrow ledger”) and should not be countenanced by the Court considering Plaintiff has relied on this position since the filing of the Amended Complaint. This is just another example of Plaintiff’s baseless claims that he will not be able to prove. Lastly, it must be pointed out that Defendants have indeed responded to Plaintiff’s notice to admit, interrogatories, discovery demands, etc. while appropriately reserving rights and objections where necessary. Plaintiff’s claims to the contrary are belied by the Defendants’ responses themselves. LEGAL ARGUMENT POINT I PLAINTIFF HAS FAILED TO MEET HIS BURDEN, THEREFORE HIS MOTION MUST BE DENIED IN ITS ENTIRETY A. Plaintiff has failed to assert new facts which would warrant the Court to grant his motion for leave to renew. The Court must deny Plaintiff’s request for leave to renew as Plaintiff has not submitted any new or additional facts that would warrant such an application. Pursuant to CPLR §2221(e), a party may move to renew based upon “new facts not offered on the prior motion that would change 4 7 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. See CPLR §2221(e); see also Gall v. Colon-Sylvain, 151 A.D.3d 701, 703 (2d Dep’t 2017). The movant is statutorily required to provide reasonable justification for the failure to present such facts on the prior motion. See id.; see also Matter of Shapiro v. State of New York, 259 A.D.2d 753 (2d Dep’t 1999) (“leave to renew should be denied unless the moving party offers a reasonable excuse as to why the additional facts were not submitted in the original application”). Plaintiff failed to meet his burden on his motion for leave to renew as Plaintiff has not offered any new facts that would warrant reversal or revision of the March Order. Instead, Plaintiff recycles previous arguments that have previously been considered by the Court that there are outstanding “issues” that require further discovery. The several arguments Plaintiff raises in support of his motion are meritless. Plaintiff argues that there are “new” issues in dispute that were not disputed when the Court decided the March Order and therefore, these issues should be considered new facts that warrant renewal; to wit: Defendants dispute that they received the funds from the Weisel escrow account; and Defendants dispute that the source of funds used to pay down the TD Mortgage was the loaned funds from Plaintiff. Since October 2023, when this case was first argued before Judge Ruchelsman, Defendants clarified their position legally and factually - the Defendants received the money alleged herein from Weisel’s escrow attorney account but that the monies received through the account were funded from Isaac, and not Plaintiff, as Isaac is a 50% owner of the funds in Weisel’s escrow account. Plaintiff cannot claim that these are “new facts” that were not considered when the Court entered the March Order. Defendants argued this specific issue numerous times in the past. 5 8 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 Furthermore, Plaintiff’s reliance on Defendants’ responses to the Notice to Admit is also meritless. Defendants raised appropriate objections and did not admit to specific requests for admission based on said objections. Additionally, Plaintiff is well-aware that even though Weisel’s attorney escrow account is titled “Barry Hersko”, it is funded by both Barry and Isaac, and therefore Defendant cannot admit to the requests for admission related to the escrow account, as Plaintiff would interpret this as an admission of Plaintiff’s allegations. Nevertheless, Defendants’ responses to Plaintiff’s Notice to Admit are not considered new facts that warrant leave to renew. Similarly, Plaintiff’s argument that renewal is necessary due to Defendants’ motion for summary judgment is misguided. Defendants do not introduce any new arguments on their motion for summary judgment that would warrant additional document discovery or renewal. Additionally, Plaintiff attempts to argue that Defendants have submitted a new document in support of their summary judgment motion that was never produced in this matter. This argument is ludicrous. The document Defendants submitted in support of their motion to dismiss – NYSCEF Doc. No. 172 – is the partnership agreement between Plaintiff and Isaac, the same document that Plaintiff’s attorneys Blank Rome have in their possession on behalf of Plaintiff in all other related matters. The agreement does not reference the alleged loans herein, or the properties associated with same. However, Defendants submitted the document to illustrate to the Court the partnership agreement between Isaac and Plaintiff in support of their argument that Isaac is the owner of 50% of the funds in the Weisel account. Plaintiff, and his attorneys, clearly have this document in their possession, custody, or control and this is not considered “new” for the purposes of this motion. Lastly, Plaintiff argues that the testimony elicited from Weisel’s March 26, 2024 deposition warrants the renewal of their motion to compel. Specifically, Plaintiff argues that Weisel testified 6 9 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 that he does not have any documents in his possession, custody, or control regarding the loans and this means that Defendants must produce the documents. Defendants do not know how many times they need to say this to Plaintiff, but Defendants do not have the requested documents in their possession, custody or control, as they do not exist. It was Plaintiff’s allegation that Weisel had the requisite documents to assist Plaintiff in meeting his prima facie burden which is why Weisel was subpoenaed. However, again, this is not a new fact requiring renewal. Plaintiff was aware of this when he filed his original motion to compel and when the Court entered its March Order. In fact, Plaintiff’s own moving papers (emphasis added) herein state how Plaintiff previously made the Court aware that Weisel does not have any of these documents in his possession, custody, or control. See Plaintiffs’ MOL pgs. 2, 6. Plaintiff’s motion is nothing more than a poorly veiled effort to re-litigate the issues previously before the Court and must be denied. B. The Court did not overlook or misapprehend matters of fact and law when deciding Plaintiff’s motion to compel. Similarly, the Court must deny Plaintiff’s request for leave to reargue as he has utterly failed to meet the statutory requirements. Pursuant to CPLR §2221(d), a party may move to reargue “based upon matters of fact or law allegedly overlooked or misapprehend by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion.” See CPLR §2221(d). See McGill v. Goldman, 261 A.D.2d 593, 594 (2d Dep’t 1999). The motion may be granted only when there is a showing that “the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision”. See Schneider v. Solowey, 141 A.D.2d 813 (2d Dep’t 1988). While the determination to grant leave to reargue lies within the sound discretion of the court, a motion to reargue is “not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present 7 10 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 arguments different from those originally presented.” See Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dep’t 2014). i. The March Order does not bar the Plaintiff from seeking party discovery, rather it acknowledges that Plaintiff has the ability to obtain the documents he desires from his own attorney. Plaintiff is mischaracterizing the nature and purpose of the March Order. Contrary to Plaintiff’s contention, the March Order does not impose a standard that bars Plaintiff from obtaining documents from Defendants. Rather, the March Order clearly grasps the fact that the Plaintiff cannot prosecute his claims by relying on documents that Defendants may or may not have. The March Order is not limiting party discovery but clarifying that Plaintiff has the power and capability of seeking the records he so desperately needs from his own attorney Weisel. Plaintiff’s Complaint alleges that his own attorney “memorialized” the alleged loans. What documents was Plaintiff relying on when previously making this assertion? The Court appropriately considered the Plaintiff’s request for the documents and denied all Plaintiff’s requests. ii. The Court did not overlook any facts and has already considered all arguments Plaintiff asserts in his moving papers. Contrary to Plaintiff’s contention, the Court did not overlook the fact that Plaintiff had tried to obtain the subject documents from other sources. However, Plaintiff has not outlined or detailed his efforts to obtain the discovery from any other source. the history of discovery is as follows: 1. On June 1, 2023, Plaintiff served document demands. 2. On June 20, 2023, Defendants served their responses and documents. 3. On August 23, 2023, Defendants informed Plaintiff that they do not have any further documents in their possession, custody, or control responsive to Plaintiff’s requests. 8 11 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 4. On August 25, 2023, Plaintiff filed a motion to extend deposition deadlines so that Plaintiff could receive further documents, specifically bank statements. 5. On August 31, 2023, Plaintiff filed a motion to quash a subpoena Defendants served upon TD Bank. 6. On October 31, 2023, this Court denied Plaintiff’s motion to extend deposition deadlines and explicitly held that bank statements are irrelevant and will not prove Plaintiff’s claims that the monies were a loan. 7. On December 20, 2023, Plaintiff filed the underlying motion to compel. 8. On March 14, 2024, after extensive oral argument, the Court denied Plaintiff’s motion to compel. 9. On March 26, 2024, Abraham Weisel was deposed and informed the parties that he does not have any documents in his possession, custody, or control concerning the alleged loans as previously alleged by Plaintiff. In each motion, oral argument, court appearance, etc., the Plaintiff told his same tale that he needs the requested documents and hasn’t been able to obtain them. The Court is well-aware of the above history and considered this history and both parties’ arguments on all motions, especially the motion to compel. Each time the Court rejected Plaintiff’s arguments and denied his requests. Additionally, Plaintiff argues that the March Order overlooks the fact that not all of the documents requested would be in Weisel’s possession, even though this has been Plaintiff’s position since filing the Amended Complaint. This argument is false. The March Order acknowledges that the documents Weisel would have in his possession are documents that reflect the loans being given to the Defendants via checks and wires. Additionally, and contrary to Plaintiff’s contention, the Court did consider the other documents in Plaintiff’s demand and motion 9 12 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 to compel and explicitly stated that they would not support Plaintiff’s claims. See March Order pg. 5 (“Further, all the documents sought by the plaintiff suffer the same infirmities. They do not help support any of the plaintiff’s allegations the money transferred were loans”). Defendants were the proactive parties and attempted to obtain the records from Weisel and also subpoenaed and deposed Weisel to locate these documents. However, as Plaintiff acknowledges, Weisel does not have the requested records and therefore, Defendants cannot produce the records obtained from Weisel. C. The Court has already determined the relevancy of the documents Plaintiff seeks. Plaintiff is continuing to raise the same recycled arguments that have already been raised, argued and decided by this Court. Unsurprisingly, Plaintiff argues that the documents requested in his underlying motion to compel are material and relevant. The Court has already ruled on the relevancy of these documents and rejected Plaintiff’s claims in the March Order (pgs. 4-6) (“all the documents sought by the plaintiff suffer the same infirmities. They do not help support any of the plaintiff’s allegations that the money transferred were loans”) (and the October Order). Furthermore, Plaintiff’s argument relies on alleged new “disputes” between the parties. To clarify again, Defendants do not (emphasis added) “dispute” that they received the monies through Weisel’s escrow attorney account. Rather, Defendants argue that the monies that were wired from this account were funded by Isaac as he is the 50% owner of the funds in the escrow attorney account. These monies did not come from Barry. This has always been Defendants’ position and Plaintiff’s feigned surprise is not a basis for reargument or renewal. Lastly, Defendants do not have any more responsive documents in their possession, custody or control to produce. Plaintiff’s argument that the partnership agreement Defendants submitted in support of their motion to dismiss “confirmed they [Defendants] are withholding documents) (see Plaintiffs’ MOL at pg. 19) is baseless and should be ignored by this Court. 10 13 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 CONCLUSION For all the foregoing reasons, Defendants respectfully request that Plaintiff’s motion be denied in its entirety. Dated: May 9, 2024 Brooklyn, New York ABRAMS FENSTERMAN, LLP By: Melanie I. Wiener, Esq. 1 Metrotech Center, Suite 1701 Brooklyn, New York 11201 (718) 215-5300 Attorneys for Defendants 11 14 of 15 FILED: KINGS COUNTY CLERK 05/09/2024 09:43 PM INDEX NO. 519449/2021 NYSCEF DOC. NO. 216 RECEIVED NYSCEF: 05/09/2024 CERTIFICATION REGARDING WORD LIMIT I, Melanie Wiener, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Memorandum complies with the word count limit set forth in Rule 202.8-b of the Uniform Civil Rules because it contains 3,190 words, excluding the parts of the Memorandum exempted by Rule 202.8-b. In preparing this certification, I have relied on the word count of the word processing system used to prepare this Memorandum. _____________________ Melanie I. Wiener 12 15 of 15