Preview
FILED: NEW YORK COUNTY CLERK 02/28/2022 05:41 PM INDEX
INDEX NO.
NO. 652352/2018
652352/2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 164
163 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/28/2022
02/24/2022
At IAS Part 53 of the Supreme Court of the
State of New York, held in and for the County
of New York, on the 2 day of fibrth
2022.
Present: Hon. Andrew Borrok, J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STELLA STOLPER,
Index No. 652352/2018
Plaintiff,
v. (Motion Seq. 011)
ZARINA
ORDER TO
BURBACKI,
SHOW CAUSE
Defendant.
UPON the annexed Affirmation of Martin P. Russo, Esq., dated January 28, 2022, and the
exhibits annexed thereto, including the Affidavit of Michael Keating, and upon allprior pleadings
and proceedings had herein, itis hereby:
ORDERED, that Defendant Zarina Burbacki and her counsel show cause at the Supreme
Court of the State of New York, County of New York, before the Honorable Andrew Borrok,
J.S.C., at Part 53, at the Courthouse located at 60 Centre Street, New York, New York 10007 on
or before the ay of $1 , 2022, at 3_: o'clock in the LVIOD A , or as soon
thereafter as ccüñsel can be heard, why an order should not be made and entered herein granting
Plaintiff's motion for an order authorizing service of a subpoena on non-party Avi Shimroni
pursuant to CPLR § 308(5)by registered U.S. mail sent to his home address in Clifton, New Jersey,
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or by personal delivery to Mr. Shimroni by Defeñdañt, or by such other means as directed by the
Court.
SUFFICIENT CAUSE BEING ALLEGED, it isORDERED that service of a copy of
this Order to Show Cause, and all supporting papers upon which same isbased, by electronic filing
and email to Defendant's counsel, on or before fhdff h A_, 2022 shall be deemed good and
sufficient service; and
It isfurther ORDERED that answering papers, if any, in response to this Order to Show
Cause shall be served on or before rd , 2022.
ENTER,
Hon. drew Borrok J.S.C.
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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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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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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”).
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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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Filing Attorney Information:
Daniel Branower, Esq
NJ Attorney ID Number: 184512016
350 Fifth Avenue, New York, NY, 10118
2123632000
Superior Court of New Jersey
STELLA STOLPER, Civil Division Passaic County
Plaintiff, N.Y. Sup. Ct. Docket No. 652352/2018
V.
CIVIL ACTION
ZARJNA BURBACK.I,
Defendant. SUBPOENA
AD TESTIFICANDUM AND DUCES
TECUM
------------------~
STATE OF NEW JERSEY TO: Avi Shimrony
5310 Burwood Rd.
Clifton, N.J., 07013
YOU ARE HEREBY COMMANDED to appear in person at the offices of Veritext
Legal Solutions located at 290 W Mt Pleasant Ave #3200, Livingston, N.J. 07039, on November
17, 2021 at 10:00 A.M., to testify as a witness on an examination before trial by deposition upon
oral questions in the above captioned action of Stella Stolper v. Zarina Burbacki now pending in
the Supreme Court, County ofNew York, regarding the matters set forth in the annexed Schedule,
including but not limited to: (i) the payment in the amount of$150,000 given by you to Plaintiff;
(ii) your communications with Defendant relating to such $150,000 payment; (iii)
communications with Defendant concerning monies held in Burbacki's attorney escrow account
or Burbacki Law's attorney escrow account on behalf of Stella Stolper or her children; and (iv)
communications relating to the transfer any funds held for the benefit of Stella Stolper, from
Zarina Burbacki's attorney escrow account and/or Burbacki Law's attorney escrow account to
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You.
YOU ARE ALSO COMMANDED to bring with you and to produce at that time the
books, papers, documents and other tangible things set forth on the annexed Schedule A.
Provided that if you are notified that a motion to quash the subpoena has been filed, the
subpoenaed evidence shall not be produced or released until ordered to do so by the court or the
releaseis consented to by all parties to the action.
Failure to appear or comply with the command of this Subpoena will subject you to the
penaltiesprovided by law.
/1ichd/r f/.
Michelle M.
/v,,:J-., k &4:Jl~
Smith, c?erk of the Superior Court
Attorneys for PlaintiffStella Stolper
Russo PLLC
Martin Russo, Esq.
Daniel Branower, Esq.
Rimma Ayzen, Esq.
The Empire State Building
350 Fifth Avenue, Suite 7230
New York, New York 10118
Tel: (212) 363-2000
Attorneys for Defendant Zarina Burbacki
Law Offices of Jonathan E. Neuman, Esq.
Jonathan E. Neuman, Esq.
176-25 Union Turnpike, Suite 230
Fresh Meadows, NY 11366
(347) 450-6710
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PROOF OF
SERVICE
!,,____________, being over the age of 18, served the attached subpoena
by delivering a copy to _ _ _ __
_____________ru_________________ and
by handing him/her the fee of $2.00 for one day's attendance and, if applicable, a mileage
fee of$_ _ _ _, as allowed by law.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Date Signature_ _ _ _ _ _ _ _ _ _ _ _ _ _ __
---------
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SCHEDULE A
DEFINITIONS
1. "Stella Stolper" means plaintiff Stella Stolper and her agents, assistants, partners,
employees, affiliates, representatives, and/or any person acting on her behalf.
2. "Zarina Burbacki" means defendant Zarina Burbacki and her agents, assistants, partners,
employees, affiliates, representatives, and/or any person acting on her behalf.
3. "Carey" means !bird-party Mariah Carey and her agents, assistants, partners, employees,
affiliates, representatives, and/or any person acting on her behalf.
4. "Yonathan Shimrony" means third-party Yonathan Shimrony and his agents, assistants,
partners, employees, affiliates, representatives, and/or any person acting on his behalf.
5. "Wikked" means third-party Wikked Entertainment, Inc. and its agents, partners,
associates, officers, directors, employees, subsidiaries, affiliates and/or representatives.
6. "Magic Carpet" means third-party Magic Carpet Productions and its agents, partners,
associates, officers, directors, employees, subsidiaries, affiliates and/or representatives.
7. "Burbacki Law" means third-party Burbacki Law Group and its agents, partners,
associates, officers, directors, employees, subsidiaries, affiliates and/or representatives.
8. "Communication" means any exchange or transmission of words or ideas to another
Person or entity, including without limitation conversations, discussions, letters, memoranda, e-mails, text
messages, instant messages, meetings, notes, speeches, or other transfer of information, whether written,
oral, or by any other means, whether in-person, direct or indirect, formal or informal, and includes any
Document which abstracts, digests, transcribes or records any such Communication.
9. "Document" as used herein means all tangible sources of information, including, but not
limited to:
a. the original and any non-identical copy (whether different from the original because of
handwritten notes or underlining made thereon, attachments affixed thereto, or
otherwise) or drafts thereof, of any handwritten, typewritten, printed, recorded or
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graphic matter, however produced or reproduced including, but not limited to, letters,
reports, agreements, Communications (including intra-company Communications),
correspondence, emails, telegrams, memoranda, summaries or records of personal
conversations, formal or informal notes, journals, diaries, calendars, forecasts,
photographs, tape recordings, models, statisticalstatements, graphs, laboratory and
engineering reports and notebooks, charts, plans, drawings, minutes or records of
conferences, expressions or statements of policy, lists of Persons attending meetings
or conferences, rep01ts and/or summaries of interviews, reports and/or summaries of
investigations, opinions or reports of consultants, appraisals, records, reports or
summaries of negotiations, brochures, pamphlets, advertisements, circulars, trade
letters, press releases, invoices, receipts, testimony, abstracts, studies, surveys, tables,
forms, work papers, logs or indices; and
b. any mechanical, magnetic, electronic or other recordings of any voice, sound, light,
image, or data including, but not limited to, computer diskettes, hard-drives, magnetic
tapes, photographs, microfilms and any other data compilation in the possession,
custody or control of Defendant wherever located.
10. The term "concerning" means relating to, referring to, describing, evidencing or
constituting.
11. The terms "all," "any" and "each" shall be construed as "all and each."
12. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses that might otherwise be construed
to be outside of its scope.
13. The term "you" and "your" means Avi Shimrony.
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INSTRUCTIONS
1. The use of the singular form of any word includes the plural and vice versa. The use of the
present tense shall be construed to include the past tense and vice versa.
2. If you claim any ambiguity in interpreting any document request or any defmition or
instruction applicable to a request herein, you may not use such a claim as a basis for refusing to respond
to the request but shall respond to the request applying the broadest possible interpretation.
3. If you do not have knowledge sufficient to answer a particular request herein or to any part
of a request, state this fact in your response and identify each person who possesses the necessary
information or knowledge.
4. If a request herein calls for an answer not within your knowledge or for the production of
a document not within your possession, custody or control, state this fact in your response, identify and
describe the document with particularity, and identify each person having knowledge of the answer, or
having possession, custody or control of the document.
5. If any documents called for in a request herein are withheld from production, furnish a list
of such documents which contains a complete description of each document,
including: (i) the date and number of pages of the document; (ii) its title (if any); (iii) its subject
matter; (iv) the identity of each attachment or appendix to the document; (v) identification of each person
to whom it is addressed; (vi) identification of each person who received a copy thereof; (vii) identification
of each person to whom the document was distributed, shown or explained; (viii) identification of each
person by whom it was written; (ix) its present custodian; and (x) the grounds upon which it isbeing
withheld. If a privilege is claimed as a ground for not producing, or otherwise responding to, a request in
whole or in part, either conditionally or absolutely, set forth with particularity the basis for each such claim.
If an attorney-client privilege, work product rule, or any other privilege or protective rule is asserted with
respect to a communication or writing, identify each individual who authored or was a party to such
communication or writing, identify each individual who authored or was a party to such communication or
writing and each person, if any, present at the time such communication or writing was made or was privy
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thereto.
6. In the event that any document called for by any request herein has been destroyed or
discarded, identify each such document, identify all persons to whom the document was distributed, shown
or explained; set forth the date of the document's destruction or discard, the manner of destruction or
discard, and the reason for destruction or discard; and identify the persons authorizing the carrying out of
any such destruction or discard.
7. The requests herein are intended to cover all writings in your possession, custody or
control, whether located in your offices or in the possession of any third party, agent, representative,
accountant or attorney for you.
8. Each request herein, and each subsection of each request herein, is to be fully and
separately answered.
9. In producing documents and things requested herein, you shall provide them as they are
kept in the usual course of business or shall organize and label them to correspond with the categories in
the request. You are also requested to identify, in writing, paragraphs as to which no documents are
produced.
10. The document requests set forth herein are to be deemed continuing so as to require further
and supplemental production if you discover, receive, or generate additional documents subsequent to the
time of your initial production of documents.
11. Unless otherwise specified herein, this document request covers January 1, 2015 through
the present date and includes all documents and information that relate, in whole or in part, to such period
or to events or circumstances during such period even though dated, generated, or received prior or
subsequent to that period.
12. Where documents in the possession of a legal entity are requested, such request
includes the entity's employees, advisors, attorneys, representatives, agents, officers, directors, independent
contractors, successors and assigns, and allother persons acting for or on behalf of any one or more of
them.
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DOCUMENTS REQUESTED
All documents and information in your possession, custody or control concerning:
I. Communications between You and any third-party, including but not limited to Carey,
Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning monies held in Burbacki's
attorney escrow account or Burbacki Law's attorney escrow account on behalf of Stella Stolper or her
children.
2. Documents relating to any monies held in Burbacki' s attorney escrow account or Burbacki
Law's attorney escrow account on behalf of Stella Stolper or her children.
3. Communications between You and any third-party, including but not limited to Carey,
Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning a payment in the amount of
$ I 50,000 for the benefit of Stella Stolper or her children, made by You to Zarina Burbacki 's attorney escrow
account and/or Burbacki Law's attorney escrow account.
4. Documents relating to a payment in the amount of $150,000 for the benefit of Stella Stolper
or her children, made by You to Zarina Burbacki's attorney escrow account and/or Burbacki Law's attorney
escrow account.
5. Communications between You and any third-party, including but not limited to Carey,
Magic Carpet, Avi Shimrony, Zarina Burbacki and Wikked, relating to the transfer any funds held for the
benefit of Stella Stolper, from Zarina Burbacki's attorney escrow account or Burbacki Law's attorney
escrow account to You.
6. Documents relating to the transfer any funds held for the benefit of Stella Stolper, from
Zarina Burbacki's attorney escrow account or Burbacki Law's attorney escrow account to You.
7. Communications between You and any third-party, including but not limited to Carey,
Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning all monetary amounts
Burbacki Law and/or Zarina Burbacki received from You and/or any entities of which You are an officer,
director, owner or beneficial owner.
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8. Documents relating to all monetary amounts Burbacki Law and/or Zarina Burbacki
received from You and/or any entities of which You are an officer, director, owner or beneficial owner.
9. Communications between You and any third-party, including but not limited to Stella
Stolper and Zarina Burbacki, relating to any gifts,donations, payments, and/or commissions made to or
received by Stella Stolper or her children.
10. Documents relating to any gifts, donations, payments, and/or commissions made to or
received by Stella Stolper or her children.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------X
STELLA STOLPER,
Index No.: 652352/2018
Plaintiff(s),
-against-
AFFIDAVIT OF
ZARlNA BURBACK.I, ATTEMPTED SERVICE
Defendant(s).
---------------------------------------------------------X
STATE OF NEW YORK )
s.s:
COUNTY OF NEW YORK )
MICHAEL KEATING, being duly sworn, deposes and says that he is an employee of
KEATING & WALKER ATTORNEY SERVICE, INC. at 116 Nassau Street, Suite 816, New York,
New York 10038, is over the age of eighteen years and is not a party to the action.
That on the 18th day of October, 2021, at approximately 6:20 p.m., deponent attempted to serve
a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee in
the amount of$20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 07013. This is
a gated community. The guard at the entrance to the community called the number for Shimrony.
Someone answered and said that I should return at a later time and date.
That on the 20th day of October, 2021, at approximately 10:35 a.m., deponent attempted to
serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee
in the amount of$20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 0701 3. The
guard at the gatehouse called the number for Shimrony but did not receive an answer.
That on the 30th day of October, 2021 , at approximately 10:45 a.m., deponent attempted to
serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee
in the amount of $20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 07013. The
guard at the gatehouse tried to called the number for Shimrony but it was out of service. The guard
researched her records and found a second number for the Shimrony residence. She called that number
and it too was out of service. I asked what would happen in such a situation and was told to come back
during business hours and speak to someone in the management office for the community.
(1)
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That on the I st day of November, 2021 , at approximately 3 :30 p.m., deponent attempted to
serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee
in the amount of $20.00 upon Avi Shimrony at 5310 Burwood Road, Clift
Preview
FILED: NEW YORK COUNTY CLERK 02/28/2022 05:41 PM INDEX INDEX NO. NO. 652352/2018 652352/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 164 163 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/28/2022 02/24/2022 At IAS Part 53 of the Supreme Court of the State of New York, held in and for the County of New York, on the 2 day of fibrth 2022. Present: Hon. Andrew Borrok, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STELLA STOLPER, Index No. 652352/2018 Plaintiff, v. (Motion Seq. 011) ZARINA ORDER TO BURBACKI, SHOW CAUSE Defendant. UPON the annexed Affirmation of Martin P. Russo, Esq., dated January 28, 2022, and the exhibits annexed thereto, including the Affidavit of Michael Keating, and upon allprior pleadings and proceedings had herein, itis hereby: ORDERED, that Defendant Zarina Burbacki and her counsel show cause at the Supreme Court of the State of New York, County of New York, before the Honorable Andrew Borrok, J.S.C., at Part 53, at the Courthouse located at 60 Centre Street, New York, New York 10007 on or before the ay of $1 , 2022, at 3_: o'clock in the LVIOD A , or as soon thereafter as ccüñsel can be heard, why an order should not be made and entered herein granting Plaintiff's motion for an order authorizing service of a subpoena on non-party Avi Shimroni pursuant to CPLR § 308(5)by registered U.S. mail sent to his home address in Clifton, New Jersey, 1 of 17 FILED: NEW YORK COUNTY CLERK 02/28/2022 05:41 PM INDEX INDEX NO. NO. 652352/2018 652352/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 164 163 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/28/2022 02/24/2022 or by personal delivery to Mr. Shimroni by Defeñdañt, or by such other means as directed by the Court. SUFFICIENT CAUSE BEING ALLEGED, it isORDERED that service of a copy of this Order to Show Cause, and all supporting papers upon which same isbased, by electronic filing and email to Defendant's counsel, on or before fhdff h A_, 2022 shall be deemed good and sufficient service; and It isfurther ORDERED that answering papers, if any, in response to this Order to Show Cause shall be served on or before rd , 2022. ENTER, Hon. drew Borrok J.S.C. 2 2 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 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 31 of of 17 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 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 42 of of 17 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 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 53 of of 17 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 160 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 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 64 of of 17 4 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 Filing Attorney Information: Daniel Branower, Esq NJ Attorney ID Number: 184512016 350 Fifth Avenue, New York, NY, 10118 2123632000 Superior Court of New Jersey STELLA STOLPER, Civil Division Passaic County Plaintiff, N.Y. Sup. Ct. Docket No. 652352/2018 V. CIVIL ACTION ZARJNA BURBACK.I, Defendant. SUBPOENA AD TESTIFICANDUM AND DUCES TECUM ------------------~ STATE OF NEW JERSEY TO: Avi Shimrony 5310 Burwood Rd. Clifton, N.J., 07013 YOU ARE HEREBY COMMANDED to appear in person at the offices of Veritext Legal Solutions located at 290 W Mt Pleasant Ave #3200, Livingston, N.J. 07039, on November 17, 2021 at 10:00 A.M., to testify as a witness on an examination before trial by deposition upon oral questions in the above captioned action of Stella Stolper v. Zarina Burbacki now pending in the Supreme Court, County ofNew York, regarding the matters set forth in the annexed Schedule, including but not limited to: (i) the payment in the amount of$150,000 given by you to Plaintiff; (ii) your communications with Defendant relating to such $150,000 payment; (iii) communications with Defendant concerning monies held in Burbacki's attorney escrow account or Burbacki Law's attorney escrow account on behalf of Stella Stolper or her children; and (iv) communications relating to the transfer any funds held for the benefit of Stella Stolper, from Zarina Burbacki's attorney escrow account and/or Burbacki Law's attorney escrow account to 7 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 You. YOU ARE ALSO COMMANDED to bring with you and to produce at that time the books, papers, documents and other tangible things set forth on the annexed Schedule A. Provided that if you are notified that a motion to quash the subpoena has been filed, the subpoenaed evidence shall not be produced or released until ordered to do so by the court or the releaseis consented to by all parties to the action. Failure to appear or comply with the command of this Subpoena will subject you to the penaltiesprovided by law. /1ichd/r f/. Michelle M. /v,,:J-., k &4:Jl~ Smith, c?erk of the Superior Court Attorneys for PlaintiffStella Stolper Russo PLLC Martin Russo, Esq. Daniel Branower, Esq. Rimma Ayzen, Esq. The Empire State Building 350 Fifth Avenue, Suite 7230 New York, New York 10118 Tel: (212) 363-2000 Attorneys for Defendant Zarina Burbacki Law Offices of Jonathan E. Neuman, Esq. Jonathan E. Neuman, Esq. 176-25 Union Turnpike, Suite 230 Fresh Meadows, NY 11366 (347) 450-6710 2 8 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 PROOF OF SERVICE !,,____________, being over the age of 18, served the attached subpoena by delivering a copy to _ _ _ __ _____________ru_________________ and by handing him/her the fee of $2.00 for one day's attendance and, if applicable, a mileage fee of$_ _ _ _, as allowed by law. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Date Signature_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ --------- 3 9 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 SCHEDULE A DEFINITIONS 1. "Stella Stolper" means plaintiff Stella Stolper and her agents, assistants, partners, employees, affiliates, representatives, and/or any person acting on her behalf. 2. "Zarina Burbacki" means defendant Zarina Burbacki and her agents, assistants, partners, employees, affiliates, representatives, and/or any person acting on her behalf. 3. "Carey" means !bird-party Mariah Carey and her agents, assistants, partners, employees, affiliates, representatives, and/or any person acting on her behalf. 4. "Yonathan Shimrony" means third-party Yonathan Shimrony and his agents, assistants, partners, employees, affiliates, representatives, and/or any person acting on his behalf. 5. "Wikked" means third-party Wikked Entertainment, Inc. and its agents, partners, associates, officers, directors, employees, subsidiaries, affiliates and/or representatives. 6. "Magic Carpet" means third-party Magic Carpet Productions and its agents, partners, associates, officers, directors, employees, subsidiaries, affiliates and/or representatives. 7. "Burbacki Law" means third-party Burbacki Law Group and its agents, partners, associates, officers, directors, employees, subsidiaries, affiliates and/or representatives. 8. "Communication" means any exchange or transmission of words or ideas to another Person or entity, including without limitation conversations, discussions, letters, memoranda, e-mails, text messages, instant messages, meetings, notes, speeches, or other transfer of information, whether written, oral, or by any other means, whether in-person, direct or indirect, formal or informal, and includes any Document which abstracts, digests, transcribes or records any such Communication. 9. "Document" as used herein means all tangible sources of information, including, but not limited to: a. the original and any non-identical copy (whether different from the original because of handwritten notes or underlining made thereon, attachments affixed thereto, or otherwise) or drafts thereof, of any handwritten, typewritten, printed, recorded or 4 10 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 graphic matter, however produced or reproduced including, but not limited to, letters, reports, agreements, Communications (including intra-company Communications), correspondence, emails, telegrams, memoranda, summaries or records of personal conversations, formal or informal notes, journals, diaries, calendars, forecasts, photographs, tape recordings, models, statisticalstatements, graphs, laboratory and engineering reports and notebooks, charts, plans, drawings, minutes or records of conferences, expressions or statements of policy, lists of Persons attending meetings or conferences, rep01ts and/or summaries of interviews, reports and/or summaries of investigations, opinions or reports of consultants, appraisals, records, reports or summaries of negotiations, brochures, pamphlets, advertisements, circulars, trade letters, press releases, invoices, receipts, testimony, abstracts, studies, surveys, tables, forms, work papers, logs or indices; and b. any mechanical, magnetic, electronic or other recordings of any voice, sound, light, image, or data including, but not limited to, computer diskettes, hard-drives, magnetic tapes, photographs, microfilms and any other data compilation in the possession, custody or control of Defendant wherever located. 10. The term "concerning" means relating to, referring to, describing, evidencing or constituting. 11. The terms "all," "any" and "each" shall be construed as "all and each." 12. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 13. The term "you" and "your" means Avi Shimrony. 5 11 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 INSTRUCTIONS 1. The use of the singular form of any word includes the plural and vice versa. The use of the present tense shall be construed to include the past tense and vice versa. 2. If you claim any ambiguity in interpreting any document request or any defmition or instruction applicable to a request herein, you may not use such a claim as a basis for refusing to respond to the request but shall respond to the request applying the broadest possible interpretation. 3. If you do not have knowledge sufficient to answer a particular request herein or to any part of a request, state this fact in your response and identify each person who possesses the necessary information or knowledge. 4. If a request herein calls for an answer not within your knowledge or for the production of a document not within your possession, custody or control, state this fact in your response, identify and describe the document with particularity, and identify each person having knowledge of the answer, or having possession, custody or control of the document. 5. If any documents called for in a request herein are withheld from production, furnish a list of such documents which contains a complete description of each document, including: (i) the date and number of pages of the document; (ii) its title (if any); (iii) its subject matter; (iv) the identity of each attachment or appendix to the document; (v) identification of each person to whom it is addressed; (vi) identification of each person who received a copy thereof; (vii) identification of each person to whom the document was distributed, shown or explained; (viii) identification of each person by whom it was written; (ix) its present custodian; and (x) the grounds upon which it isbeing withheld. If a privilege is claimed as a ground for not producing, or otherwise responding to, a request in whole or in part, either conditionally or absolutely, set forth with particularity the basis for each such claim. If an attorney-client privilege, work product rule, or any other privilege or protective rule is asserted with respect to a communication or writing, identify each individual who authored or was a party to such communication or writing, identify each individual who authored or was a party to such communication or writing and each person, if any, present at the time such communication or writing was made or was privy 6 12 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 thereto. 6. In the event that any document called for by any request herein has been destroyed or discarded, identify each such document, identify all persons to whom the document was distributed, shown or explained; set forth the date of the document's destruction or discard, the manner of destruction or discard, and the reason for destruction or discard; and identify the persons authorizing the carrying out of any such destruction or discard. 7. The requests herein are intended to cover all writings in your possession, custody or control, whether located in your offices or in the possession of any third party, agent, representative, accountant or attorney for you. 8. Each request herein, and each subsection of each request herein, is to be fully and separately answered. 9. In producing documents and things requested herein, you shall provide them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. You are also requested to identify, in writing, paragraphs as to which no documents are produced. 10. The document requests set forth herein are to be deemed continuing so as to require further and supplemental production if you discover, receive, or generate additional documents subsequent to the time of your initial production of documents. 11. Unless otherwise specified herein, this document request covers January 1, 2015 through the present date and includes all documents and information that relate, in whole or in part, to such period or to events or circumstances during such period even though dated, generated, or received prior or subsequent to that period. 12. Where documents in the possession of a legal entity are requested, such request includes the entity's employees, advisors, attorneys, representatives, agents, officers, directors, independent contractors, successors and assigns, and allother persons acting for or on behalf of any one or more of them. 7 13 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 DOCUMENTS REQUESTED All documents and information in your possession, custody or control concerning: I. Communications between You and any third-party, including but not limited to Carey, Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning monies held in Burbacki's attorney escrow account or Burbacki Law's attorney escrow account on behalf of Stella Stolper or her children. 2. Documents relating to any monies held in Burbacki' s attorney escrow account or Burbacki Law's attorney escrow account on behalf of Stella Stolper or her children. 3. Communications between You and any third-party, including but not limited to Carey, Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning a payment in the amount of $ I 50,000 for the benefit of Stella Stolper or her children, made by You to Zarina Burbacki 's attorney escrow account and/or Burbacki Law's attorney escrow account. 4. Documents relating to a payment in the amount of $150,000 for the benefit of Stella Stolper or her children, made by You to Zarina Burbacki's attorney escrow account and/or Burbacki Law's attorney escrow account. 5. Communications between You and any third-party, including but not limited to Carey, Magic Carpet, Avi Shimrony, Zarina Burbacki and Wikked, relating to the transfer any funds held for the benefit of Stella Stolper, from Zarina Burbacki's attorney escrow account or Burbacki Law's attorney escrow account to You. 6. Documents relating to the transfer any funds held for the benefit of Stella Stolper, from Zarina Burbacki's attorney escrow account or Burbacki Law's attorney escrow account to You. 7. Communications between You and any third-party, including but not limited to Carey, Magic Carpet, Yonathan Shimrony, Zarina Burbacki and Wikked, concerning all monetary amounts Burbacki Law and/or Zarina Burbacki received from You and/or any entities of which You are an officer, director, owner or beneficial owner. 8 14 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 161 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 8. Documents relating to all monetary amounts Burbacki Law and/or Zarina Burbacki received from You and/or any entities of which You are an officer, director, owner or beneficial owner. 9. Communications between You and any third-party, including but not limited to Stella Stolper and Zarina Burbacki, relating to any gifts,donations, payments, and/or commissions made to or received by Stella Stolper or her children. 10. Documents relating to any gifts, donations, payments, and/or commissions made to or received by Stella Stolper or her children. 9 15 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. .. 652352/2018 NYSCEF DOC. NO. 162 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------X STELLA STOLPER, Index No.: 652352/2018 Plaintiff(s), -against- AFFIDAVIT OF ZARlNA BURBACK.I, ATTEMPTED SERVICE Defendant(s). ---------------------------------------------------------X STATE OF NEW YORK ) s.s: COUNTY OF NEW YORK ) MICHAEL KEATING, being duly sworn, deposes and says that he is an employee of KEATING & WALKER ATTORNEY SERVICE, INC. at 116 Nassau Street, Suite 816, New York, New York 10038, is over the age of eighteen years and is not a party to the action. That on the 18th day of October, 2021, at approximately 6:20 p.m., deponent attempted to serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee in the amount of$20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 07013. This is a gated community. The guard at the entrance to the community called the number for Shimrony. Someone answered and said that I should return at a later time and date. That on the 20th day of October, 2021, at approximately 10:35 a.m., deponent attempted to serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee in the amount of$20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 0701 3. The guard at the gatehouse called the number for Shimrony but did not receive an answer. That on the 30th day of October, 2021 , at approximately 10:45 a.m., deponent attempted to serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee in the amount of $20.00 upon Avi Shimrony at 5310 Burwood Road, Clifton, New Jersey 07013. The guard at the gatehouse tried to called the number for Shimrony but it was out of service. The guard researched her records and found a second number for the Shimrony residence. She called that number and it too was out of service. I asked what would happen in such a situation and was told to come back during business hours and speak to someone in the management office for the community. (1) 16 of 17 FILED: NEW YORK COUNTY CLERK 01/28/2022 02/28/2022 04:10 05:41 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 162 164 RECEIVED NYSCEF: 01/28/2022 02/28/2022 That on the I st day of November, 2021 , at approximately 3 :30 p.m., deponent attempted to serve a true copy of the Subpoena Ad Testificandum and Duces Tecum together with a witness fee in the amount of $20.00 upon Avi Shimrony at 5310 Burwood Road, Clift