Preview
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STELLA STOLPER, Index No. 652352/2018
Plaintiff, Hon. Andrew S. Borrok
v. Motion Sequence No. 11
ZARINA BURBACKI,
Defendant.
AFFIRMATION OF RIMMA AYZEN IN OPPOSITION TO MOTION TO
STRIKE FIRST AMENDED COMPLAINT
RIMMA AYZEN, 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 associated with the 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
opposition to Defendant’s motion by order to show cause to strike the First Amended
Complaint with prejudice based on Plaintiff’s alleged tampering with evidence.
DEFENDANT’S MOTION IS COMPLETELY BASELESS
2. Defendant has filed an utterly misguided motion by order to show cause,
consisting of roughly 70 pages, including affidavits and exhibits, alleging that Plaintiff
“tampered” with evidence consisting of Stolper’s unsent notes in the text-entry field of three
text message screenshots stating, in each instance: “Who cares Please stop.” Defendant
1 of 5
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021
does not and cannot explain how these unsent messages, which were subsequently redacted
at the behest of Defendant’s own counsel, amounts to “tampering” or any sort of
falsification or destruction of evidence, or is even remotely relevant to this case.
3. In fact, Defendant’s entire motion is an exercise in the inconsequential
analysis of certain color and page break differences in Plaintiff’s text message screenshots, 1
three of which contain unsent messages that do not appear and were not intended to appear
as if they were actually sent, that could not possibly mislead any reasonable reviewer of
such documents, and that were redacted and re-produced to Defendant’s counsel (with no
follow-up objection) almost two years ago.
4. Defendant’s motion does not once suggest that these notes are relevant to the
claims, or that the presence of the draft, unsent messages in the text-entry field of the
screenshots in any way compromised Defendant’s ability to establish her counterclaims or
defenses. Accordingly, Defendant’s contention that the presence of now-redacted unsent
text messages is sanctionable, so as to require forensic analysis or the extreme measure of
striking the Complaint, is sheer and utter folly. 2
1
Defendant’s desperate attempt to concoct a theory out of the supposed discrepancy between
color copies of text messages and the black and white copies fails on the basic grounds that
certain parts of the production were printed and then scanned manually prior to Bates stamping,
while others were only processed electronically (with the latter method maintaining the color of
the text messages). Defendant’s own sample set of text messages (Neuman Aff., Ex. 3) contain
many produced text messages that are black and white, and which do not contain cut-off texts or
partial images (see, e.g., SB-000002, SB-000004, SB-00009, SB-000014, SB-000015, SB-
000017, SB-000018, SB-000341, SB-000353, SB-000361) (NYSECF Dkt. No. 138, at p. 2, 4, 9,
14, 15,17, 18, 28, 40, 48). Therefore, Defendant’s distinction of the text messages at issue on the
basis of being black and white, or cut-off text/images is a meaningless one. (Neuman Aff.,
NYSECF Dkt. No. 135 at ¶¶ 5-6). The visible keyboard in some text message screenshots is
similarly insignificant.
2
Even in the context of spoliation of evidence, “[a] less severe sanction or no sanction is
appropriate where the missing evidence does not deprive the moving party of the ability to
2
2 of 5
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021
DEFENDANT SHOULD BE PRECLUDED FROM SEEKING THE
REQUESTED RELIEF
5. Defendant first took issue with these text messages over two years ago, when
Defendant’s counsel emailed a former member of Plaintiff’s law firm, Marlen Kruzhkov,
regarding the “apparently filled in fake text messages.” Mr. Neuman requested that Plaintiff
“[p]lease remedy this immediately, with the full text messages.” (See Exhibit A).
6. Counsel for Plaintiff then sought the original messages, without Stolper’s
internal notes in the unsent text message box. On December 17, 2019, we informed
Defendant that Plaintiff was unable to locate the original messages and that, in an effort to
address Defendant’s concerns, we would produce redacted versions of the text messages at
issue.
7. Accordingly, on December 17, 2019, Plaintiff produced the three text
message documents that are at issue in the current motion, having redacted the unsent
messages that, as counsel for the parties understood and acknowledged, were never sent and
appeared merely in the unsent text field. 3 (SB 000124_Redacted, SB 000047_Redacted, and
SB 000095_Redacted). (See Exhibit B).
establish his or her case or defense.” Ferrara Bros. Bldg. Materials Corp. v. FMC Const. LLC.,
44 N.Y.S.3d 670, 675 (Sup. Ct. Queens Cty. 2016); Pennachio v. Costco Wholesale Corp., 990
N.Y.S.2d 54, 56 (2d Dep’t 2014) (“Recognizing that striking a pleading is a drastic sanction to
impose in the absence of willful or contumacious conduct, courts will consider the prejudice that
resulted from the spoliation to determine whether such drastic relief is necessary as a matter of
fundamental fairness”); In re Macmillan, Inc., 186 B.R. 35, 46–47 (Bankr. S.D.N.Y. 1995),
as amended (Aug. 10, 1995), as amended (Aug. 15, 1995) (“I am without the benefit of
testimony to adequately determine whether Aboff tampered with evidence or merely
amended his notes. This precludes granting the debtors the relief which they demand.”).
3
Defendant’s assertion that her attorney “realized that text had in fact been added to the text
messages to make them appear as part of the original conversation” (Burbacki Aff., NYSECF
Dkt. No. 134, at ¶¶ 2-3) demonstrates a fundamental and highly unlikely misunderstanding of
how text messages would appear if they were actually part of the original conversation (or made
to look as if they were). As Defendant’s exhibits clearly demonstrate, the text at issue appeared
3
3 of 5
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021
8. Defendant’s counsel never responded to this email, presumably satisfied with
the production. Conspicuously absent from Defendant’s motion is any mention of the fact
that Plaintiff re-produced these text messages to Defendant almost two years ago, without
any follow-up complaint from Defendant at that time. 4
9. Notable, too, is the fact that in each of the text message chains at issue
Defendant was among the members of the text group and accordingly could access these
conversations just as easily as can Plaintiff. Indeed, Defendant does not argue that the
documents themselves, regardless of Plaintiff’s unsent notes, are material or relevant in any
way and presumably considers them outside the scope of this action as she herself was
among the recipients of these text message conversations and did not produce any of them. 5
in the text-entry field, not in the chain of sent messages that comprise the conversation. It is true
that “[a]t no point did Plaintiff say, ‘by the way, these contain a draft that was never sent’”
because such fact was self-evident on the face of the document. (NYSCEF Dkt. No. 135, at ¶ 7).
4
In fact, far from acknowledging that Plaintiff immediately addressed Defendant’s concerns and
to Defendant’s implicit satisfaction at the time, Defendant’s counsel went so far as to falsely
claim, in his September 30, 2021 Affirmation in Opposition and in Support of Cross-Motion,
that: “I brought this to Plaintiff’s attention to rectify the matter . . . but it was completely ignored
by Plaintiff.” (NYSECF Dkt. No. 118, at *11-12).
5
Defendant acknowledges that she is “fully familiar with all the facts and circumstances relevant
to a proper determination of this matter” and asserts personal knowledge of the text messages at
issue, noting that she “pointed out to [her] attorney [her] belief that these texts messages had
been tampered with” because “Plaintiff was an active participant in these types of conversations
and had never [before] issued that instruction,” “to stop talking about what the group was talking
about.” (Burbacki Aff., NYSECF Dkt. No. 134, at ¶¶ 2-3).
4
4 of 5
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021
CONCLUSION
10. For the reasons set forth herein, Defendant’s motion seeking an order striking the
First Amended Complaint or otherwise ordering Plaintiff to turn over her phone to Defendant’s
forensic expert should be denied in its entirety.
Dated: New York, New York
November 12, 2021
Respectfully submitted,
/s/__ Rimma Ayzen_____
Rimma Ayzen
RUSSO PLLC
350 Fifth Avenue, Suite 7230
New York, New York 10118
Tel.: (212) 363-2000
rayzen@russopllc.com
Attorneys for Plaintiff Stella Stolper
5
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STELLA STOLPER, Index No. 652352/2018 Plaintiff, Hon. Andrew S. Borrok v. Motion Sequence No. 11 ZARINA BURBACKI, Defendant. AFFIRMATION OF RIMMA AYZEN IN OPPOSITION TO MOTION TO STRIKE FIRST AMENDED COMPLAINT RIMMA AYZEN, 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 associated with the 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 opposition to Defendant’s motion by order to show cause to strike the First Amended Complaint with prejudice based on Plaintiff’s alleged tampering with evidence. DEFENDANT’S MOTION IS COMPLETELY BASELESS 2. Defendant has filed an utterly misguided motion by order to show cause, consisting of roughly 70 pages, including affidavits and exhibits, alleging that Plaintiff “tampered” with evidence consisting of Stolper’s unsent notes in the text-entry field of three text message screenshots stating, in each instance: “Who cares Please stop.” Defendant 1 of 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021 does not and cannot explain how these unsent messages, which were subsequently redacted at the behest of Defendant’s own counsel, amounts to “tampering” or any sort of falsification or destruction of evidence, or is even remotely relevant to this case. 3. In fact, Defendant’s entire motion is an exercise in the inconsequential analysis of certain color and page break differences in Plaintiff’s text message screenshots, 1 three of which contain unsent messages that do not appear and were not intended to appear as if they were actually sent, that could not possibly mislead any reasonable reviewer of such documents, and that were redacted and re-produced to Defendant’s counsel (with no follow-up objection) almost two years ago. 4. Defendant’s motion does not once suggest that these notes are relevant to the claims, or that the presence of the draft, unsent messages in the text-entry field of the screenshots in any way compromised Defendant’s ability to establish her counterclaims or defenses. Accordingly, Defendant’s contention that the presence of now-redacted unsent text messages is sanctionable, so as to require forensic analysis or the extreme measure of striking the Complaint, is sheer and utter folly. 2 1 Defendant’s desperate attempt to concoct a theory out of the supposed discrepancy between color copies of text messages and the black and white copies fails on the basic grounds that certain parts of the production were printed and then scanned manually prior to Bates stamping, while others were only processed electronically (with the latter method maintaining the color of the text messages). Defendant’s own sample set of text messages (Neuman Aff., Ex. 3) contain many produced text messages that are black and white, and which do not contain cut-off texts or partial images (see, e.g., SB-000002, SB-000004, SB-00009, SB-000014, SB-000015, SB- 000017, SB-000018, SB-000341, SB-000353, SB-000361) (NYSECF Dkt. No. 138, at p. 2, 4, 9, 14, 15,17, 18, 28, 40, 48). Therefore, Defendant’s distinction of the text messages at issue on the basis of being black and white, or cut-off text/images is a meaningless one. (Neuman Aff., NYSECF Dkt. No. 135 at ¶¶ 5-6). The visible keyboard in some text message screenshots is similarly insignificant. 2 Even in the context of spoliation of evidence, “[a] less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to 2 2 of 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021 DEFENDANT SHOULD BE PRECLUDED FROM SEEKING THE REQUESTED RELIEF 5. Defendant first took issue with these text messages over two years ago, when Defendant’s counsel emailed a former member of Plaintiff’s law firm, Marlen Kruzhkov, regarding the “apparently filled in fake text messages.” Mr. Neuman requested that Plaintiff “[p]lease remedy this immediately, with the full text messages.” (See Exhibit A). 6. Counsel for Plaintiff then sought the original messages, without Stolper’s internal notes in the unsent text message box. On December 17, 2019, we informed Defendant that Plaintiff was unable to locate the original messages and that, in an effort to address Defendant’s concerns, we would produce redacted versions of the text messages at issue. 7. Accordingly, on December 17, 2019, Plaintiff produced the three text message documents that are at issue in the current motion, having redacted the unsent messages that, as counsel for the parties understood and acknowledged, were never sent and appeared merely in the unsent text field. 3 (SB 000124_Redacted, SB 000047_Redacted, and SB 000095_Redacted). (See Exhibit B). establish his or her case or defense.” Ferrara Bros. Bldg. Materials Corp. v. FMC Const. LLC., 44 N.Y.S.3d 670, 675 (Sup. Ct. Queens Cty. 2016); Pennachio v. Costco Wholesale Corp., 990 N.Y.S.2d 54, 56 (2d Dep’t 2014) (“Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness”); In re Macmillan, Inc., 186 B.R. 35, 46–47 (Bankr. S.D.N.Y. 1995), as amended (Aug. 10, 1995), as amended (Aug. 15, 1995) (“I am without the benefit of testimony to adequately determine whether Aboff tampered with evidence or merely amended his notes. This precludes granting the debtors the relief which they demand.”). 3 Defendant’s assertion that her attorney “realized that text had in fact been added to the text messages to make them appear as part of the original conversation” (Burbacki Aff., NYSECF Dkt. No. 134, at ¶¶ 2-3) demonstrates a fundamental and highly unlikely misunderstanding of how text messages would appear if they were actually part of the original conversation (or made to look as if they were). As Defendant’s exhibits clearly demonstrate, the text at issue appeared 3 3 of 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021 8. Defendant’s counsel never responded to this email, presumably satisfied with the production. Conspicuously absent from Defendant’s motion is any mention of the fact that Plaintiff re-produced these text messages to Defendant almost two years ago, without any follow-up complaint from Defendant at that time. 4 9. Notable, too, is the fact that in each of the text message chains at issue Defendant was among the members of the text group and accordingly could access these conversations just as easily as can Plaintiff. Indeed, Defendant does not argue that the documents themselves, regardless of Plaintiff’s unsent notes, are material or relevant in any way and presumably considers them outside the scope of this action as she herself was among the recipients of these text message conversations and did not produce any of them. 5 in the text-entry field, not in the chain of sent messages that comprise the conversation. It is true that “[a]t no point did Plaintiff say, ‘by the way, these contain a draft that was never sent’” because such fact was self-evident on the face of the document. (NYSCEF Dkt. No. 135, at ¶ 7). 4 In fact, far from acknowledging that Plaintiff immediately addressed Defendant’s concerns and to Defendant’s implicit satisfaction at the time, Defendant’s counsel went so far as to falsely claim, in his September 30, 2021 Affirmation in Opposition and in Support of Cross-Motion, that: “I brought this to Plaintiff’s attention to rectify the matter . . . but it was completely ignored by Plaintiff.” (NYSECF Dkt. No. 118, at *11-12). 5 Defendant acknowledges that she is “fully familiar with all the facts and circumstances relevant to a proper determination of this matter” and asserts personal knowledge of the text messages at issue, noting that she “pointed out to [her] attorney [her] belief that these texts messages had been tampered with” because “Plaintiff was an active participant in these types of conversations and had never [before] issued that instruction,” “to stop talking about what the group was talking about.” (Burbacki Aff., NYSECF Dkt. No. 134, at ¶¶ 2-3). 4 4 of 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 04:35 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 11/12/2021 CONCLUSION 10. For the reasons set forth herein, Defendant’s motion seeking an order striking the First Amended Complaint or otherwise ordering Plaintiff to turn over her phone to Defendant’s forensic expert should be denied in its entirety. Dated: New York, New York November 12, 2021 Respectfully submitted, /s/__ Rimma Ayzen_____ Rimma Ayzen RUSSO PLLC 350 Fifth Avenue, Suite 7230 New York, New York 10118 Tel.: (212) 363-2000 rayzen@russopllc.com Attorneys for Plaintiff Stella Stolper 5 5 of 5