On May 11, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Stella Stolper,
and
Zarina Burbacki,
for Commercial Division
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 04/18/2022
04/20/2022 04:56
02:55 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 169
171 RECEIVED NYSCEF: 04/18/2022
04/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53
-----------------------------------------------------------------------------------X
STELLA STOLPER INDEX NO. 652352/2018
Plaintiff,
MOTION DATE 01/28/2022
-v-
MOTION SEQ. NO. 012
ZARINA BURBACKI,
Defendant. DECISION + ORDER ON
MOTION
-----------------------------------------------------------------------------------X
HON. ANDREW BORROK:
The following e-filed documents, listed by NYSCEF document number (Motion 012) 159, 160, 161, 162,
164, 165, 167, 168
were read on this motion to/for ALTERNATE SERVICE .
Upon the foregoing documents, the Order to Show Cause must be granted. The plaintiff in this
action has always maintained that a $150,000 gift was misappropriated by Zarina Burbacki out
of her escrow account. The gift allegedly came from Avi Shimrony to thank the plaintiff for the
opportunity. Mr. Shimrony’s testimony is relevant to this issue. As such, his deposition is
proper (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]). The defendant’s argument that the
Stella Stolper gave testimony that contradicts this assertion both overstates the testimony and
does not dispose of the issue. At her deposition, Ms. Stolper did testify that although the gift was
not handed to her personally by Mr. Shimrony, and that she could not physically identify him,
she has met him and she understood the gift to have come from him (NYSCEF Doc. No. 168,
168:22-24). In any event, to the extent that her testimony presented some lack of clarity as to the
source of this alleged $150,000, this is proper impeachment material should this case go to trial.
It is not a basis upon which to arrest discovery and the development of the record. Thus, the
subpoenas shall be presented to the court to be so-ordered and the deposition of Mr. Shimrony
652352/2018 STOLPER, STELLA vs. BURBACKI, ZARINA Page 1 of 2
Motion No. 012
1 of 2
FILED: NEW YORK COUNTY CLERK 04/18/2022
04/20/2022 04:56
02:55 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 169
171 RECEIVED NYSCEF: 04/18/2022
04/20/2022
must be scheduled forthwith. The parties are directed to submit a stipulation as to the date for
Mr. Shimrony’s deposition which shall occur on or before April 30, 2022.
Accordingly, it is
ORDERED that the order to show cause seeking the court’s authorization for alternate service is
granted; and it is further
ORDERED that the parties shall submit a stipulation as to the date for Mr. Shimrony’s
deposition.
4/18/2022
DATE ANDREW BORROK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
652352/2018 STOLPER, STELLA vs. BURBACKI, ZARINA Page 2 of 2
Motion No. 012
2 of 2
Document Filed Date
April 20, 2022
Case Filing Date
May 11, 2018
Category
Commercial Division
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FILED: NEW YORK COUNTY CLERK 04/18/2022 04/20/2022 04:56 02:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 169 171 RECEIVED NYSCEF: 04/18/2022 04/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 -----------------------------------------------------------------------------------X STELLA STOLPER INDEX NO. 652352/2018 Plaintiff, MOTION DATE 01/28/2022 -v- MOTION SEQ. NO. 012 ZARINA BURBACKI, Defendant. DECISION + ORDER ON MOTION -----------------------------------------------------------------------------------X HON. ANDREW BORROK: The following e-filed documents, listed by NYSCEF document number (Motion 012) 159, 160, 161, 162, 164, 165, 167, 168 were read on this motion to/for ALTERNATE SERVICE . Upon the foregoing documents, the Order to Show Cause must be granted. The plaintiff in this action has always maintained that a $150,000 gift was misappropriated by Zarina Burbacki out of her escrow account. The gift allegedly came from Avi Shimrony to thank the plaintiff for the opportunity. Mr. Shimrony’s testimony is relevant to this issue. As such, his deposition is proper (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]). The defendant’s argument that the Stella Stolper gave testimony that contradicts this assertion both overstates the testimony and does not dispose of the issue. At her deposition, Ms. Stolper did testify that although the gift was not handed to her personally by Mr. Shimrony, and that she could not physically identify him, she has met him and she understood the gift to have come from him (NYSCEF Doc. No. 168, 168:22-24). In any event, to the extent that her testimony presented some lack of clarity as to the source of this alleged $150,000, this is proper impeachment material should this case go to trial. It is not a basis upon which to arrest discovery and the development of the record. Thus, the subpoenas shall be presented to the court to be so-ordered and the deposition of Mr. Shimrony 652352/2018 STOLPER, STELLA vs. BURBACKI, ZARINA Page 1 of 2 Motion No. 012 1 of 2 FILED: NEW YORK COUNTY CLERK 04/18/2022 04/20/2022 04:56 02:55 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 169 171 RECEIVED NYSCEF: 04/18/2022 04/20/2022 must be scheduled forthwith. The parties are directed to submit a stipulation as to the date for Mr. Shimrony’s deposition which shall occur on or before April 30, 2022. Accordingly, it is ORDERED that the order to show cause seeking the court’s authorization for alternate service is granted; and it is further ORDERED that the parties shall submit a stipulation as to the date for Mr. Shimrony’s deposition. 4/18/2022 DATE ANDREW BORROK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 652352/2018 STOLPER, STELLA vs. BURBACKI, ZARINA Page 2 of 2 Motion No. 012 2 of 2