Preview
FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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STELLA STOLPER,
Plaintiff, AFFIRMATION IN OPPOSITION
-vs- Motion Sequence No. 12
Index No. 151425/2018
ZARINA BURBACKI, Justice Assigned:
Defendant. Hon. Andrew S. Borrok, J.S.C.
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JONATHAN E. NEUMAN, an attorney duly admitted to practice in the courts of this
State, does hereby affirm the truth of the following under the penalties of perjury, pursuant to
CPLR 2106:
1. I am the attorney for the Defendant, ZARINA BURBACKI, in the above-entitled action
and am fully familiar with all of the facts and circumstances heretofore had herein. I make this
affirmation in opposition to Plaintiff’s motion for alternate service of a subpoena upon non-party
Avi Shimroni.
2. In its motion, Plaintiff seeks permission for alternate service, arguing that it has been
unable to serve Mr. Shimroni because he lives in a gated community.
3. The parties have already discussed this motion informally with the Court at the last
conference, and the Court has already indicated its likely ruling. Accordingly, so as not to waste
the Court’s time, I will make these papers as short as possible.
4. At the last conference, the Court asked me to work out with Plaintiff’s counsel a
stipulated limited, very tailored deposition of Mr. Shimroni, a non-party over whom I have no
control, of 1-2 hours. In conformity with the Court’s wishes, I reached out to Plaintiff’s counsel
to try to work out the parameters of such a deposition, but Plaintiff’s counsel ignored my email.
Accordingly, as Plaintiff’s counsel will not agree to follow the Court’s strong recommendation
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on what should be done to resolve this motion, and have simply refused to respond to me, I am
left with no alternative but to oppose the motion.
5. It is therefore respectfully submitted that the Plaintiff’s motion should be denied, both
procedurally and substantively.
6. As a matter of procedure, the motion should be denied. This Court ruled on October 5,
2021, that all third-party depositions had to be completed on or before January 28, 2022. See
NYSCEF Doc. 123. That gave Plaintiff nearly 4 months to get Mr. Shimroni served and
deposed. And then on October 22, 2021, the Court said that the dates would likely not be
changed without “really, really good cause.” See NYSCEF Doc. 132 at *36.
7. As shown by Plaintiff’s Exhibit B. Plaintiff attempted to serve Mr. Shimroni four times
between October 18 and November 1, but was allegedly unable to do so since Mr. Shimroni was
in a gated community (although the process server in fact was able to get inside based on his own
affidavit). That left the Plaintiff with three months to make a motion to this Court. Instead,
Plaintiff sat on its hands and neglected this matter until the end of January, waiting until the last
day of January 28, 2022, to make this motion. However, as January 28, 2022, was the last day to
complete depositions in accordance with the Court’s prior order, Plaintiff’s motion clearly had
no chance of being granted by the Court’s deadline.
8. Plaintiff clearly blew the deadline as a result of its own neglect, and this Court should not
feel sorry for Plaintiff’s own failures. Plaintiff clearly had ample time to accomplish serving and
deposing Mr. Shimroni within the time frame set by the Court, and simply failed to do so as a
result of its own inattention.
9. Accordingly, Plaintiff has not shown the really good cause that this Court said would be
necessary to change and extend any dates, and therefore Plaintiff’s motion should be denied.
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10. Moreover and more fundamentally, Plaintiff’s motion should be denied as a matter of
substance.
11. Even within its very papers on this motion, Plaintiff has continued to perpetuate a
sanctionable fraud upon this Court by claiming that she was given a gift of $150,000 by Mr. Avi
Shimroni (see Plaintiff’s Affirmation in Support at paragraph 4). This matches Plaintiff’s false
and sanctionable claim in her Amended Complaint, that “Avi Shimrony (Stolper’s uncle) had
who [sic] expressly given the money as a gift to Ms. Stolper for the benefit of her children.” See
NYSCEF Doc. 71 at paragraph 38. Plaintiff even went so far in her verified Complaint to falsely
and sanctionably allege that “Ms. Stolper made a demand on Avi Shimrony for return of the
funds as well.” See NYSCEF Doc. 71 at paragraph 50.
12. These are all bald face lies. As admitted to by Plaintiff, she never spoke with Avi
Shimroni, and her story now is that the alleged gift was allegedly given to her not by Avi
Shimroni, but rather by Defendant and her husband. See the relevant excerpt from Plaintiff’s
deposition, annexed hereto as EXHIBIT 1.
13. Accordingly, there is no purpose to Plaintiff deposing Avi Shimroni (other than for
Plaintiff to harass Defendant’s extended family members), because Plaintiff has already admitted
that her prior sworn statements are false and that Mr. Shimroni did not give her a gift, nor did she
ever demand that he return the money to her.
14. Hence, not only should Plaintiff’s motion be denied as a matter of procedure, but it
should be denied as a matter of substance as well.
15. Now, the Court has already indicated its inclination to grant the deposition for the reason
the Court stated at the last conference (although at the time the Court did not have these
opposition papers before it). Defendant maintains that Plaintiff should not be entitled to this
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deposition, which is simply meant to harass Defendant’s extended family members. However, in
light of the Court’s strong request of me at the last conference, I attempted to work out a
stipulation with Plaintiff’s counsel. As mentioned, unfortunately, Plaintiff’s counsel has chosen
to ignore the Court’s strong suggestion/request and has completely ignored my email.
Accordingly, if the Court is still inclined to grant the deposition, Defendant would respectfully
request that the Court significantly limit the scope and time of the deposition, as the Court had
suggested at the conference the parties should agree to. The deposition, if any, should be limited
to one or two very specific topics and should be limited to a very specific amount of time in
order for the deposition to be completed. It is outrageous that Plaintiff has continued this farce to
the Court when she already admitted in her deposition that it is completely untrue.
16. Accordingly, as I discussed with the Court at the last conference, and as the Court stated I
could put into the stipulation to be worked out with Plaintiff’s counsel (which stipulation never
happened because Plaintiff’s counsel simply refused to respond to me), in light of the clear
deposition transcript demonstrating the falsity of Plaintiff’s claim, I would respectfully ask that
the Court grant me leave to make a motion for sanctions due to Plaintiff’s frivolous and
dishonest sworn statements, along with whatever other relief the Court thinks would be
appropriate.
WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court
deny Plaintiff’s motion in its entirety, together with such other, further, and different relief as to
the Court may seem just and proper.
Dated: Fresh Meadows, New York
April 8, 2022
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
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ATTORNEY CERTIFICATION
I, JONATHAN E. NEUMAN, ESQ., an attorney at law licensed to practice in the State of
New York, hereby certify that to the best of my knowledge, information and belief, formed after
an inquiry reasonable under the circumstances, the presentation of the within papers or the
contentions therein are not frivolous within the meaning of 22 NYCRR § 130-1.1(c).
Dated: Fresh Meadows, NY
April 8, 2022
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
ATTORNEY CERTIFICATION
I, JONATHAN E. NEUMAN, ESQ., an attorney at law licensed to practice in the State of
New York, hereby certify that this document contains 1,159 words exclusive of the caption, table
of contents, table of authorities, and/or signature block, as counted by the word count of the
word-processing system used to prepare this document.
Dated: Fresh Meadows, NY
April 8, 2022
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X STELLA STOLPER, Plaintiff, AFFIRMATION IN OPPOSITION -vs- Motion Sequence No. 12 Index No. 151425/2018 ZARINA BURBACKI, Justice Assigned: Defendant. Hon. Andrew S. Borrok, J.S.C. --------------------------------------------------------------------X JONATHAN E. NEUMAN, an attorney duly admitted to practice in the courts of this State, does hereby affirm the truth of the following under the penalties of perjury, pursuant to CPLR 2106: 1. I am the attorney for the Defendant, ZARINA BURBACKI, in the above-entitled action and am fully familiar with all of the facts and circumstances heretofore had herein. I make this affirmation in opposition to Plaintiff’s motion for alternate service of a subpoena upon non-party Avi Shimroni. 2. In its motion, Plaintiff seeks permission for alternate service, arguing that it has been unable to serve Mr. Shimroni because he lives in a gated community. 3. The parties have already discussed this motion informally with the Court at the last conference, and the Court has already indicated its likely ruling. Accordingly, so as not to waste the Court’s time, I will make these papers as short as possible. 4. At the last conference, the Court asked me to work out with Plaintiff’s counsel a stipulated limited, very tailored deposition of Mr. Shimroni, a non-party over whom I have no control, of 1-2 hours. In conformity with the Court’s wishes, I reached out to Plaintiff’s counsel to try to work out the parameters of such a deposition, but Plaintiff’s counsel ignored my email. Accordingly, as Plaintiff’s counsel will not agree to follow the Court’s strong recommendation Page 1 of 5 1 of 5 FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022 on what should be done to resolve this motion, and have simply refused to respond to me, I am left with no alternative but to oppose the motion. 5. It is therefore respectfully submitted that the Plaintiff’s motion should be denied, both procedurally and substantively. 6. As a matter of procedure, the motion should be denied. This Court ruled on October 5, 2021, that all third-party depositions had to be completed on or before January 28, 2022. See NYSCEF Doc. 123. That gave Plaintiff nearly 4 months to get Mr. Shimroni served and deposed. And then on October 22, 2021, the Court said that the dates would likely not be changed without “really, really good cause.” See NYSCEF Doc. 132 at *36. 7. As shown by Plaintiff’s Exhibit B. Plaintiff attempted to serve Mr. Shimroni four times between October 18 and November 1, but was allegedly unable to do so since Mr. Shimroni was in a gated community (although the process server in fact was able to get inside based on his own affidavit). That left the Plaintiff with three months to make a motion to this Court. Instead, Plaintiff sat on its hands and neglected this matter until the end of January, waiting until the last day of January 28, 2022, to make this motion. However, as January 28, 2022, was the last day to complete depositions in accordance with the Court’s prior order, Plaintiff’s motion clearly had no chance of being granted by the Court’s deadline. 8. Plaintiff clearly blew the deadline as a result of its own neglect, and this Court should not feel sorry for Plaintiff’s own failures. Plaintiff clearly had ample time to accomplish serving and deposing Mr. Shimroni within the time frame set by the Court, and simply failed to do so as a result of its own inattention. 9. Accordingly, Plaintiff has not shown the really good cause that this Court said would be necessary to change and extend any dates, and therefore Plaintiff’s motion should be denied. Page 2 of 5 2 of 5 FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022 10. Moreover and more fundamentally, Plaintiff’s motion should be denied as a matter of substance. 11. Even within its very papers on this motion, Plaintiff has continued to perpetuate a sanctionable fraud upon this Court by claiming that she was given a gift of $150,000 by Mr. Avi Shimroni (see Plaintiff’s Affirmation in Support at paragraph 4). This matches Plaintiff’s false and sanctionable claim in her Amended Complaint, that “Avi Shimrony (Stolper’s uncle) had who [sic] expressly given the money as a gift to Ms. Stolper for the benefit of her children.” See NYSCEF Doc. 71 at paragraph 38. Plaintiff even went so far in her verified Complaint to falsely and sanctionably allege that “Ms. Stolper made a demand on Avi Shimrony for return of the funds as well.” See NYSCEF Doc. 71 at paragraph 50. 12. These are all bald face lies. As admitted to by Plaintiff, she never spoke with Avi Shimroni, and her story now is that the alleged gift was allegedly given to her not by Avi Shimroni, but rather by Defendant and her husband. See the relevant excerpt from Plaintiff’s deposition, annexed hereto as EXHIBIT 1. 13. Accordingly, there is no purpose to Plaintiff deposing Avi Shimroni (other than for Plaintiff to harass Defendant’s extended family members), because Plaintiff has already admitted that her prior sworn statements are false and that Mr. Shimroni did not give her a gift, nor did she ever demand that he return the money to her. 14. Hence, not only should Plaintiff’s motion be denied as a matter of procedure, but it should be denied as a matter of substance as well. 15. Now, the Court has already indicated its inclination to grant the deposition for the reason the Court stated at the last conference (although at the time the Court did not have these opposition papers before it). Defendant maintains that Plaintiff should not be entitled to this Page 3 of 5 3 of 5 FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022 deposition, which is simply meant to harass Defendant’s extended family members. However, in light of the Court’s strong request of me at the last conference, I attempted to work out a stipulation with Plaintiff’s counsel. As mentioned, unfortunately, Plaintiff’s counsel has chosen to ignore the Court’s strong suggestion/request and has completely ignored my email. Accordingly, if the Court is still inclined to grant the deposition, Defendant would respectfully request that the Court significantly limit the scope and time of the deposition, as the Court had suggested at the conference the parties should agree to. The deposition, if any, should be limited to one or two very specific topics and should be limited to a very specific amount of time in order for the deposition to be completed. It is outrageous that Plaintiff has continued this farce to the Court when she already admitted in her deposition that it is completely untrue. 16. Accordingly, as I discussed with the Court at the last conference, and as the Court stated I could put into the stipulation to be worked out with Plaintiff’s counsel (which stipulation never happened because Plaintiff’s counsel simply refused to respond to me), in light of the clear deposition transcript demonstrating the falsity of Plaintiff’s claim, I would respectfully ask that the Court grant me leave to make a motion for sanctions due to Plaintiff’s frivolous and dishonest sworn statements, along with whatever other relief the Court thinks would be appropriate. WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court deny Plaintiff’s motion in its entirety, together with such other, further, and different relief as to the Court may seem just and proper. Dated: Fresh Meadows, New York April 8, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. Page 4 of 5 4 of 5 FILED: NEW YORK COUNTY CLERK 04/08/2022 05:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/08/2022 ATTORNEY CERTIFICATION I, JONATHAN E. NEUMAN, ESQ., an attorney at law licensed to practice in the State of New York, hereby certify that to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the within papers or the contentions therein are not frivolous within the meaning of 22 NYCRR § 130-1.1(c). Dated: Fresh Meadows, NY April 8, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. ATTORNEY CERTIFICATION I, JONATHAN E. NEUMAN, ESQ., an attorney at law licensed to practice in the State of New York, hereby certify that this document contains 1,159 words exclusive of the caption, table of contents, table of authorities, and/or signature block, as counted by the word count of the word-processing system used to prepare this document. Dated: Fresh Meadows, NY April 8, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. Page 5 of 5 5 of 5