Preview
FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STELLA STOLPER, Index No. 652352/2018
Plaintiff, (Motion Seq. 011)
v.
Hon. Andrew S. Borrok
ZARINA BURBACKI,
Defendant.
AFFIRMATION IN SUPPORT OF MOTION FOR ORDER
AUTHORIZING SERVICE OF SUBPOENA BY ALTERNATE METHODS
MARTIN P. RUSSO, ESQ., an attorney admitted to practice before the Courts of the
State of New York, and not a party to this action, hereby affirms the following to be true under
the penalties of perjury, pursuant to Civil Practice Law and Rules (CPLR) 2106:
1. I am a member of the law firm Russo PLLC, attorneys of record 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 respectfully submit this
Affirmation in support of Plaintiff’s motion by order to show cause for an order pursuant to
CPLR § 308(5) authorizing alternative means of service of a subpoena on third-party Avi
Shimroni.
SERVICE OF SUBPOENA BY ALTERNATE METHODS
2. Plaintiff Stella Stolper seeks leave of the Court for an order pursuant to CPLR
§ 308(5) authorizing alternative means of service of a subpoena on third-party Avi
Shimroni, by registered mail or by directing Defendant to personally serve the subpoena on
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FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022
Mr. Shimroni, who is her father-in-law, or by other means directed by the Court. A true and
correct copy of the subpoena duces tecum and ad testificandum, issued by the Superior
Court of New Jersey, Passaic County, is attached hereto as Exhibit A.
3. Defendant lives in New Jersey and during her deposition on January 17, 2022,
Defendant confirmed that the address at which the process server attempted service, 5310
Burwood Rd, Clifton, N.J., 07013 is Mr. Shimroni’s home address.
4. Mr. Shimroni has relevant knowledge regarding the key issues in this case and
is the primary witness who can testify regarding his gift of $150,000 to Plaintiff, a sum that
is central to the parties’ dispute.
5. Plaintiff has attempted to serve Mr. Shimroni personally on six separate
occasions through a process server but Mr. Shimroni has persistently evaded service of the
subpoena. The affidavit of Michael Keating of Keating & Walker Attorney Services, Inc.
(“Keating Aff.”), detailing each service attempt, is attached hereto as Exhibit B.
6. As set forth in the Keating Aff., Mr. Shimroni lives in a gated community in
New Jersey. Accordingly, Keating & Walker was unable to effect “nail and mail” service of
the subpoena pursuant to CPLR § 308(4) because the entrance/door to Mr. Shimroni’s house
is inaccessible without a resident’s permission, and the process server could not access any
residence past the security gate.
7. Plaintiff therefore respectfully requests that this Court authorize alternative
service of the subpoena on Mr. Shimroni by registered U.S. mail to his home address in
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FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022
Clifton, New Jersey, or personal delivery to Mr. Avi Shimroni by Defendant, or by other
means as directed by the Court. 1
EXTENSION OF DEPOSITION DEADLINE
8. Given the inability to effect personal service despite multiple attempts,
Plaintiff respectfully requests that Plaintiff be permitted to take Mr. Shimroni’s deposition
after the scheduled deadline for non-expert depositions of January 28, 2022, and prior to the
close of all discovery on March 18, 2022.
CONCLUSION
9. No previous application for the relief sought has been made to this or any other
Court.
10. For the reasons set forth above, Plaintiff respectfully requests that the Court issue
an order authorizing Plaintiff to use an alternative method of service of the subpoena duces
tecum and ad testificandum on Avi Shimroni, permitting Plaintiff to depose Mr. Shimroni
after the deadline for depositions of fact witnesses, and granting such other and further relief
as the Court deems just and proper.
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CPLR 308(5) permits a court to direct another manner of service if the methods set forth in the statute
prove impracticable. Kozel v. Kozel, 78 N.Y.S.3d 68, 69 (1st Dep’t 2018) (permitting service via email,
despite requirement of personal service of order to show cause, where “the methods set forth in the statute
prove impracticable”).
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FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022
Dated: New York, New York
January 28, 2022
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@russollc.com
Attorneys for Plaintiff Stella Stolper
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Preview
FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STELLA STOLPER, Index No. 652352/2018 Plaintiff, (Motion Seq. 011) v. Hon. Andrew S. Borrok ZARINA BURBACKI, Defendant. AFFIRMATION IN SUPPORT OF MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENA BY ALTERNATE METHODS MARTIN P. RUSSO, ESQ., an attorney admitted to practice before the Courts of the State of New York, and not a party to this action, hereby affirms the following to be true under the penalties of perjury, pursuant to Civil Practice Law and Rules (CPLR) 2106: 1. I am a member of the law firm Russo PLLC, attorneys of record 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 respectfully submit this Affirmation in support of Plaintiff’s motion by order to show cause for an order pursuant to CPLR § 308(5) authorizing alternative means of service of a subpoena on third-party Avi Shimroni. SERVICE OF SUBPOENA BY ALTERNATE METHODS 2. Plaintiff Stella Stolper seeks leave of the Court for an order pursuant to CPLR § 308(5) authorizing alternative means of service of a subpoena on third-party Avi Shimroni, by registered mail or by directing Defendant to personally serve the subpoena on 1 of 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022 Mr. Shimroni, who is her father-in-law, or by other means directed by the Court. A true and correct copy of the subpoena duces tecum and ad testificandum, issued by the Superior Court of New Jersey, Passaic County, is attached hereto as Exhibit A. 3. Defendant lives in New Jersey and during her deposition on January 17, 2022, Defendant confirmed that the address at which the process server attempted service, 5310 Burwood Rd, Clifton, N.J., 07013 is Mr. Shimroni’s home address. 4. Mr. Shimroni has relevant knowledge regarding the key issues in this case and is the primary witness who can testify regarding his gift of $150,000 to Plaintiff, a sum that is central to the parties’ dispute. 5. Plaintiff has attempted to serve Mr. Shimroni personally on six separate occasions through a process server but Mr. Shimroni has persistently evaded service of the subpoena. The affidavit of Michael Keating of Keating & Walker Attorney Services, Inc. (“Keating Aff.”), detailing each service attempt, is attached hereto as Exhibit B. 6. As set forth in the Keating Aff., Mr. Shimroni lives in a gated community in New Jersey. Accordingly, Keating & Walker was unable to effect “nail and mail” service of the subpoena pursuant to CPLR § 308(4) because the entrance/door to Mr. Shimroni’s house is inaccessible without a resident’s permission, and the process server could not access any residence past the security gate. 7. Plaintiff therefore respectfully requests that this Court authorize alternative service of the subpoena on Mr. Shimroni by registered U.S. mail to his home address in 2 2 of 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022 Clifton, New Jersey, or personal delivery to Mr. Avi Shimroni by Defendant, or by other means as directed by the Court. 1 EXTENSION OF DEPOSITION DEADLINE 8. Given the inability to effect personal service despite multiple attempts, Plaintiff respectfully requests that Plaintiff be permitted to take Mr. Shimroni’s deposition after the scheduled deadline for non-expert depositions of January 28, 2022, and prior to the close of all discovery on March 18, 2022. CONCLUSION 9. No previous application for the relief sought has been made to this or any other Court. 10. For the reasons set forth above, Plaintiff respectfully requests that the Court issue an order authorizing Plaintiff to use an alternative method of service of the subpoena duces tecum and ad testificandum on Avi Shimroni, permitting Plaintiff to depose Mr. Shimroni after the deadline for depositions of fact witnesses, and granting such other and further relief as the Court deems just and proper. 1 CPLR 308(5) permits a court to direct another manner of service if the methods set forth in the statute prove impracticable. Kozel v. Kozel, 78 N.Y.S.3d 68, 69 (1st Dep’t 2018) (permitting service via email, despite requirement of personal service of order to show cause, where “the methods set forth in the statute prove impracticable”). 3 3 of 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 04:10 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/28/2022 Dated: New York, New York January 28, 2022 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@russollc.com Attorneys for Plaintiff Stella Stolper 4 4 of 4