Preview
FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STELLA STOLPER, Index No. 652352/2018
Plaintiff, Hon. Andrew S. Borrok
v.
AFFIRMATION OF MARTIN P. RUSSO
IN SUPPORT OF ORDER TO SHOW
ZARINA BURBACKI,
CAUSE TO COMPEL COMPLIANCE
WITH SUBPOENAS_______________
Defendant.
MARTIN P. RUSSO, ESQ., an attorney admitted to practice before the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury,
pursuant to CPLR 2106:
1. I am a member of the law firm of Russo PLLC, attorneys for Plaintiff Stella
Stolper (“Plaintiff” or “Stolper”) in the above-captioned action, and as such I am fully
familiar with all the facts and circumstances in this case. I submit this Affirmation in
support of Plaintiff’s renewed motion by order to show cause for an order pursuant to CPLR
3124 directing third party Yonathan Shimrony (“Shimrony”) to respond to the subpoenas
duces tecum and ad testificandum by producing responsive documents and appearing for
deposition.
PROCEDURAL BACKGROUND
2. Plaintiff initially moved to compel Shimrony to respond to the subpoenas by order
to show cause dated September 10, 2021, which was signed by Justice Borrok on September 15,
2021. By Decision & Order on Motion dated October 5, 2021, the Court held that “it does not
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appear that the order to show cause was properly served on those third parties or whether counsel
accepted service waiving any and all objections” and therefore the order to show cause was
denied without prejudice as to the third party subpoenas. Plaintiff was permitted to “move by
order to show cause to compel compliance with the third-party subpoenas within 7 days.”
3. As set forth below, the subpoenas directed to Shimrony, who is Defendant
Zarina Burbacki’s husband, were properly served based on Defendant’s counsel’s
acceptance of service on behalf of Shimrony. In particular, in an email dated October 28,
2019, Mr. Neuman agreed to accept service of subpoenas on behalf of Shimrony, and on
November 4, 2019 Plaintiff’s counsel served the document and deposition subpoenas by
email to Mr. Neuman.
4. Plaintiff has not received any documents responsive to the subpoena duces
tecum, and has been unable to reach Shimrony in order to schedule a deposition.
Shimrony’s testimony and responsive documents are both material and necessary to the
prosecution of this action and directly relevant to Plaintiff’s claims. Specifically, the
Shimrony subpoenas seek documents and testimony that are highly probative of and provide
crucial evidence with respect to (i) the allegations relating to defamation; (ii) the allegations
of unjust enrichment/quantum meruit by Defendant; (iii) Defendant’s relationship with
Plaintiff; (iv) the allegations relating to hostile work environment in this action as against
Plaintiff; and (v) the allegations of tortious interference with business relations in this action
as against Plaintiff.
5. Plaintiff respectfully requests that the Court compel Shimrony’s compliance
with these long-outstanding subpoenas.
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YONATHAN SHIMRONY SHOULD BE COMPELED TO
PRODUCE DOCUMENTS AND APPEAR FOR DEPOSITION
Yonathan Shimrony Was Properly Served
6. On October 28, 2019, Plaintiff’s counsel emailed Defendant’s counsel in
order to “confirm our conversation from earlier today” regarding certain agreements,
including that “[y]ou will accept service of a subpoena on behalf of Yonathan Shimrony.”
(See Exhibit A). Less than ten minutes later, Mr. Neuman responded: “Confirmed.”
Several days later, on November 1, 2019, Plaintiff’s counsel emailed Mr. Neuman with a
“[k]ind reminder to let us know whether you will be accepting service on behalf of Avi
Shimrony in addition to Yonathan Shimrony.” Mr. Neuman responded a few minutes later,
“[i]n light of the claims, I think it would be better for me not to. Please have him served.”
7. Accordingly, on November 4, 2019, Plaintiff served the subpoenas duces
tecum and ad testificandum directed to Yonathan Shimrony by email to Mr. Neuman. (See
Exhibit B, email and attached subpoenas). 1
8. Further, on January 20, 2020, Plaintiff’s counsel emailed Mr. Neuman to
confirm “that the deposition of Yonathan Shimrony (originally scheduled for January 22,
2020) was agreed (between Marlen [Kruzhkov, a former member of this firm] and yourself)
to be postponed until a future date to be agreed upon after the motion to dismiss has been
heard.” Mr. Neuman replied a few minutes later: “Yes, confirmed.” (See Exhibit C). 2
1
In light of Mr. Neuman’s agreement to accept service on behalf of Defendant’s husband
Yonathan Shimrony and not Defendant’s father-in-law Avi Shimrony, Plaintiff employed a
process server to serve the Avi Shimrony subpoenas in New Jersey. Plaintiff will be re-serving
the subpoenas on Avi Shimrony and moving to compel as need be in New Jersey.
2
Following discovery-related correspondence throughout 2020, by letter dated February 26,
2021 Plaintiff’s counsel again sought documents responsive to the subpoena duces tecum served
on Shimrony, requesting that Mr. Neuman confirm whether he still represented Shimrony and
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9. Despite Mr. Neuman’s quick and unqualified responses confirming the
parties’ clear understanding reached during the October 28, 2019 conference call that Mr.
Neuman would accept service of the Yonathan Shimrony subpoenas but not the Avi
Shimrony subpoenas, and the subsequent rescheduling of a previously-scheduled deposition
of Yonathan Shimrony, Defendant then ignored Plaintiff’s emails seeking to obtain
compliance with the Shimrony subpoenas. The failure to comply with the Shimrony
subpoenas was part of an ongoing pattern by Defendant of avoiding compliance with her
discovery obligations over the course of the following two years, as detailed in Plaintiff’s
previous Motion to Compel (NYSECF Dkt. Nos. 112-115) and Plaintiff’s underlying letters
to the Court (Dkt. Nos. 109, 111).
10. Defendant’s unprincipled attempt to now claim that he never intended to
accept email service of the subpoena, despite the unequivocal emails and having scheduled
and rescheduled a deposition pursuant to this subpoena, should not be countenanced.
Defendant’s counsel is further estopped from claiming that he was not served with the
Shimrony subpoenas since he had clearly accepted service and acknowledged receipt of the
subpoenas when he confirmed the rescheduling of the deposition noted therein.
Yonathan Shimrony’s Documents and Testimony are Material and Necessary
11. With regard to parties and non-parties alike, the Court of Appeals has declared
that “the ‘material and necessary’ standard adopted by the First and Fourth Departments is the
appropriate one and is in keeping with this state’s policy of liberal discovery. The words
‘material and necessary’ as used in [CPLR] section 3101 must ‘be interpreted liberally to require
that he advise Shimrony of his obligations to comply with the subpoenas. Mr. Neuman failed to
respond to this letter as well as to a follow-up email sent on March 26, 2021 requesting a
response.
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disclosure, upon request, of any facts bearing on the controversy which will assist preparation for
trial by sharpening the issues and reducing delay and prolixity.’ Section 3101(a)(4) imposes no
requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure
from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or
defense of an action, itmust be provided by the nonparty.” Kapon v. Koch, 23 N.Y.3d 32, 38
(2014).
12. Plaintiff’s preparation for depositions has been hindered by the failure of
Shimrony to comply with the properly-issued document subpoena. Plaintiff’s document
requests are limited to documents and communications directly related to the dispute, are
reasonable in number, and do not require narrative answers or fact finding, and Shimrony
has failed to demonstrate good cause for his failure to cooperate with the subpoenas seeking
his relevant documents and testimony. Such documents and testimony are critical to
Plaintiff’s ability to prosecute the action.
13. Plaintiff’s subpoena to Shimrony specifically seeks documents relating to
monies held in Burbacki’s attorney escrow account, or Burbacki Law’s attorney escrow
account, on behalf of Stolper regarding, inter alia, (i) the allegations relating to defamation;
(ii) the allegations of unjust enrichment/quantum meruit by Defendant; (iii) Defendant’s
relationship with Plaintiff; (iv) the allegations relating to hostile work environment in this
action as against Plaintiff; and (v) the allegations of tortious interference with business
relations in this action as against Plaintiff.
14. Although Shimrony is no longer a party to this action, many allegations in the
Complaint closely relate to Shimrony (see, e.g., First Amended Verified Complaint ¶¶ 10,
13, 27, 29, 40-44, 50, 59-64), and Shimrony’s involvement in the events underlying
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Plaintiff’s claims render his documents and testimony crucial to discovery regarding monies
held in Zarina Burbacki or Burbacki Law’s attorney escrow account on behalf of Stella Stolper,
the disposition of certain funds held in Defendant’s escrow account, conduct which allegedly
harmed or interfered with Defendant’s business relationships, and allegations relating to
Defendant’s unjust enrichment, defamation, and hostile work environment counterclaims.
15. In sum, Plaintiff has not received any documents or testimony in response to these
subpoenas and respectfully requests that the Court compel compliance with these long-
outstanding subpoenas. The documents and testimony are material and necessary to the
prosecution of this action, directly relevant to Plaintiff’s claims, and are highly probative of
and provide crucial evidence with respect to Plaintiff’s causes of action for conversion,
breach of fiduciary duty, defamation, an accounting, and legal malpractice. Moreover, given
that Shimrony is Defendant’s husband, his failure to comply with the subpoenas reflects
Defendant’s overall and more systematic failure to adhere to her discovery obligations.
CONCLUSION
16. There has been a prior request for the relief sought herein but by Decision &
Order on Motion dated October 5, 2021, the Court directed Plaintiff to file a renewed motion by
order to show cause, holding that “it does not appear that the order to show cause was properly
served on those third parties or whether counsel accepted service waiving any and all objections”
and denying the order to show cause without prejudice as to the third party subpoenas. Plaintiff
was permitted to “move by order to show cause to compel compliance with the third-party
subpoenas within 7 days.”
17. For the reasons set forth herein, the motion to compel compliance with the
subpoenas directed to Yonathan Shimrony should be granted, and Shimrony should be
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compelled to produce the aforementioned documents responsive to Plaintiff’s subpoena duces
tecum and to appear for his deposition pursuant to the subpoena ad testificandum.
Dated: New York, New York
October 12, 2021
Respectfully submitted,
RUSSO PLLC
By: /s/ Martin P. Russo
Martin P. Russo, Esq.
350 Fifth Avenue, Suite 7230
New York, New York 10118
Tel.: (212) 363-2000
martin@russopllc.com
Attorneys for Plaintiff Stella Stolper
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Preview
FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STELLA STOLPER, Index No. 652352/2018 Plaintiff, Hon. Andrew S. Borrok v. AFFIRMATION OF MARTIN P. RUSSO IN SUPPORT OF ORDER TO SHOW ZARINA BURBACKI, CAUSE TO COMPEL COMPLIANCE WITH SUBPOENAS_______________ Defendant. MARTIN P. RUSSO, ESQ., an attorney admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury, pursuant to CPLR 2106: 1. I am a member of the law firm of Russo PLLC, attorneys for Plaintiff Stella Stolper (“Plaintiff” or “Stolper”) in the above-captioned action, and as such I am fully familiar with all the facts and circumstances in this case. I submit this Affirmation in support of Plaintiff’s renewed motion by order to show cause for an order pursuant to CPLR 3124 directing third party Yonathan Shimrony (“Shimrony”) to respond to the subpoenas duces tecum and ad testificandum by producing responsive documents and appearing for deposition. PROCEDURAL BACKGROUND 2. Plaintiff initially moved to compel Shimrony to respond to the subpoenas by order to show cause dated September 10, 2021, which was signed by Justice Borrok on September 15, 2021. By Decision & Order on Motion dated October 5, 2021, the Court held that “it does not 1 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 appear that the order to show cause was properly served on those third parties or whether counsel accepted service waiving any and all objections” and therefore the order to show cause was denied without prejudice as to the third party subpoenas. Plaintiff was permitted to “move by order to show cause to compel compliance with the third-party subpoenas within 7 days.” 3. As set forth below, the subpoenas directed to Shimrony, who is Defendant Zarina Burbacki’s husband, were properly served based on Defendant’s counsel’s acceptance of service on behalf of Shimrony. In particular, in an email dated October 28, 2019, Mr. Neuman agreed to accept service of subpoenas on behalf of Shimrony, and on November 4, 2019 Plaintiff’s counsel served the document and deposition subpoenas by email to Mr. Neuman. 4. Plaintiff has not received any documents responsive to the subpoena duces tecum, and has been unable to reach Shimrony in order to schedule a deposition. Shimrony’s testimony and responsive documents are both material and necessary to the prosecution of this action and directly relevant to Plaintiff’s claims. Specifically, the Shimrony subpoenas seek documents and testimony that are highly probative of and provide crucial evidence with respect to (i) the allegations relating to defamation; (ii) the allegations of unjust enrichment/quantum meruit by Defendant; (iii) Defendant’s relationship with Plaintiff; (iv) the allegations relating to hostile work environment in this action as against Plaintiff; and (v) the allegations of tortious interference with business relations in this action as against Plaintiff. 5. Plaintiff respectfully requests that the Court compel Shimrony’s compliance with these long-outstanding subpoenas. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 YONATHAN SHIMRONY SHOULD BE COMPELED TO PRODUCE DOCUMENTS AND APPEAR FOR DEPOSITION Yonathan Shimrony Was Properly Served 6. On October 28, 2019, Plaintiff’s counsel emailed Defendant’s counsel in order to “confirm our conversation from earlier today” regarding certain agreements, including that “[y]ou will accept service of a subpoena on behalf of Yonathan Shimrony.” (See Exhibit A). Less than ten minutes later, Mr. Neuman responded: “Confirmed.” Several days later, on November 1, 2019, Plaintiff’s counsel emailed Mr. Neuman with a “[k]ind reminder to let us know whether you will be accepting service on behalf of Avi Shimrony in addition to Yonathan Shimrony.” Mr. Neuman responded a few minutes later, “[i]n light of the claims, I think it would be better for me not to. Please have him served.” 7. Accordingly, on November 4, 2019, Plaintiff served the subpoenas duces tecum and ad testificandum directed to Yonathan Shimrony by email to Mr. Neuman. (See Exhibit B, email and attached subpoenas). 1 8. Further, on January 20, 2020, Plaintiff’s counsel emailed Mr. Neuman to confirm “that the deposition of Yonathan Shimrony (originally scheduled for January 22, 2020) was agreed (between Marlen [Kruzhkov, a former member of this firm] and yourself) to be postponed until a future date to be agreed upon after the motion to dismiss has been heard.” Mr. Neuman replied a few minutes later: “Yes, confirmed.” (See Exhibit C). 2 1 In light of Mr. Neuman’s agreement to accept service on behalf of Defendant’s husband Yonathan Shimrony and not Defendant’s father-in-law Avi Shimrony, Plaintiff employed a process server to serve the Avi Shimrony subpoenas in New Jersey. Plaintiff will be re-serving the subpoenas on Avi Shimrony and moving to compel as need be in New Jersey. 2 Following discovery-related correspondence throughout 2020, by letter dated February 26, 2021 Plaintiff’s counsel again sought documents responsive to the subpoena duces tecum served on Shimrony, requesting that Mr. Neuman confirm whether he still represented Shimrony and 3 3 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 9. Despite Mr. Neuman’s quick and unqualified responses confirming the parties’ clear understanding reached during the October 28, 2019 conference call that Mr. Neuman would accept service of the Yonathan Shimrony subpoenas but not the Avi Shimrony subpoenas, and the subsequent rescheduling of a previously-scheduled deposition of Yonathan Shimrony, Defendant then ignored Plaintiff’s emails seeking to obtain compliance with the Shimrony subpoenas. The failure to comply with the Shimrony subpoenas was part of an ongoing pattern by Defendant of avoiding compliance with her discovery obligations over the course of the following two years, as detailed in Plaintiff’s previous Motion to Compel (NYSECF Dkt. Nos. 112-115) and Plaintiff’s underlying letters to the Court (Dkt. Nos. 109, 111). 10. Defendant’s unprincipled attempt to now claim that he never intended to accept email service of the subpoena, despite the unequivocal emails and having scheduled and rescheduled a deposition pursuant to this subpoena, should not be countenanced. Defendant’s counsel is further estopped from claiming that he was not served with the Shimrony subpoenas since he had clearly accepted service and acknowledged receipt of the subpoenas when he confirmed the rescheduling of the deposition noted therein. Yonathan Shimrony’s Documents and Testimony are Material and Necessary 11. With regard to parties and non-parties alike, the Court of Appeals has declared that “the ‘material and necessary’ standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state’s policy of liberal discovery. The words ‘material and necessary’ as used in [CPLR] section 3101 must ‘be interpreted liberally to require that he advise Shimrony of his obligations to comply with the subpoenas. Mr. Neuman failed to respond to this letter as well as to a follow-up email sent on March 26, 2021 requesting a response. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.’ Section 3101(a)(4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, itmust be provided by the nonparty.” Kapon v. Koch, 23 N.Y.3d 32, 38 (2014). 12. Plaintiff’s preparation for depositions has been hindered by the failure of Shimrony to comply with the properly-issued document subpoena. Plaintiff’s document requests are limited to documents and communications directly related to the dispute, are reasonable in number, and do not require narrative answers or fact finding, and Shimrony has failed to demonstrate good cause for his failure to cooperate with the subpoenas seeking his relevant documents and testimony. Such documents and testimony are critical to Plaintiff’s ability to prosecute the action. 13. Plaintiff’s subpoena to Shimrony specifically seeks documents relating to monies held in Burbacki’s attorney escrow account, or Burbacki Law’s attorney escrow account, on behalf of Stolper regarding, inter alia, (i) the allegations relating to defamation; (ii) the allegations of unjust enrichment/quantum meruit by Defendant; (iii) Defendant’s relationship with Plaintiff; (iv) the allegations relating to hostile work environment in this action as against Plaintiff; and (v) the allegations of tortious interference with business relations in this action as against Plaintiff. 14. Although Shimrony is no longer a party to this action, many allegations in the Complaint closely relate to Shimrony (see, e.g., First Amended Verified Complaint ¶¶ 10, 13, 27, 29, 40-44, 50, 59-64), and Shimrony’s involvement in the events underlying 5 5 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 Plaintiff’s claims render his documents and testimony crucial to discovery regarding monies held in Zarina Burbacki or Burbacki Law’s attorney escrow account on behalf of Stella Stolper, the disposition of certain funds held in Defendant’s escrow account, conduct which allegedly harmed or interfered with Defendant’s business relationships, and allegations relating to Defendant’s unjust enrichment, defamation, and hostile work environment counterclaims. 15. In sum, Plaintiff has not received any documents or testimony in response to these subpoenas and respectfully requests that the Court compel compliance with these long- outstanding subpoenas. The documents and testimony are material and necessary to the prosecution of this action, directly relevant to Plaintiff’s claims, and are highly probative of and provide crucial evidence with respect to Plaintiff’s causes of action for conversion, breach of fiduciary duty, defamation, an accounting, and legal malpractice. Moreover, given that Shimrony is Defendant’s husband, his failure to comply with the subpoenas reflects Defendant’s overall and more systematic failure to adhere to her discovery obligations. CONCLUSION 16. There has been a prior request for the relief sought herein but by Decision & Order on Motion dated October 5, 2021, the Court directed Plaintiff to file a renewed motion by order to show cause, holding that “it does not appear that the order to show cause was properly served on those third parties or whether counsel accepted service waiving any and all objections” and denying the order to show cause without prejudice as to the third party subpoenas. Plaintiff was permitted to “move by order to show cause to compel compliance with the third-party subpoenas within 7 days.” 17. For the reasons set forth herein, the motion to compel compliance with the subpoenas directed to Yonathan Shimrony should be granted, and Shimrony should be 6 6 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2021 05:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 10/12/2021 compelled to produce the aforementioned documents responsive to Plaintiff’s subpoena duces tecum and to appear for his deposition pursuant to the subpoena ad testificandum. Dated: New York, New York October 12, 2021 Respectfully submitted, RUSSO PLLC By: /s/ Martin P. Russo Martin P. Russo, Esq. 350 Fifth Avenue, Suite 7230 New York, New York 10118 Tel.: (212) 363-2000 martin@russopllc.com Attorneys for Plaintiff Stella Stolper 7 7 of 7