Preview
FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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STELLA STOLPER,
AFFIRMATION IN SUPPORT
Plaintiff,
Motion Sequence No. 15
-vs-
Index No. 652352/2018
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 Defendant in the above-entitled action and am fully familiar with all
of the facts and circumstances heretofore had herein. I make this affirmation in support of
Defendant’s motion to hold Plaintiff in civil and criminal contemp, and for appropriate discovery
relief and sanctions. Please additionally allow this to serve as my affirmation of good faith
pursuant to 22 NYCRR 202.7.
2. No previous application has been made to any court or judge for the relief requested
herein.
3. On August 8, 2022, the Court ordered Plaintiff, inter alia, to produce the following
documents:
a) The executed Declaration of Divorce from her California divorce with Brian Sher;
b) The executed final Discovery Demand Responses from her California Divorce with
Brian Sher;
c) Bates-stamp identification of specific documents referred to by Plaintiff during her
deposition; and
d) Phone Logs and all Text Messages that took place during Plaintiff’s depositions.
e) (Plaintiff was also ordered to produce all documents relating to her alleged
defamation claim; however Plaintiff produced nothing.)
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See NYSCEF Doc. 204.
4. Despite multiple emails trying to resolve the issue without court intervention, Plaintiff,
failed to comply and failed to produce these ordered items.
The Divorce Declaration of Disclosure
5. With respect to the executed Declaration of Disclosure from Plaintiff’s California
divorce, the Court ordered Plaintiff to turn over such document, because it would be relevant
both for judicial estoppel purposes as well as general relevance and credibility as to Plaintiff’s
claim that Defendant was holding onto a $150,000 gift for her. (Aug. 8 Tr. 25:7-14) The Court
gave Plaintiff an alternative, that her attorney could review the document and provide an
affirmation that the $150,000 purported gift does not appear in the document, together with an
affidavit from Ms. Stolper as to why it does not appear in the document.
6. In response to this item, Plaintiff and her counsel provided an affidavit/affirmation stating
that the $150,000 does not appear “as an individually identifiable amount” in the document
“because these documents only contain aggregate amounts and do not itemize individual
earnings or gifts.” See EXHIBIT 1 annexed hereto.
7. This is an incredibly bad faith response, that it in and of itself should be sanctionable. As
the Court will recall, in a pre-conference letter to the Court (NYSCEF Doc. 212), Plaintiff
emailed the Court a copy of an unexecuted Declaration of Disclosure that was in my client’s
possession. (This was emailed to the Court as Exhibit 2)1 As the Court will recall, there was no
mention of the $150,000, not “because these documents only contain aggregate amounts and do
not itemize individual earnings or gifts,” but rather because no such amount was ever disclosed.
1
Due to the sensitive nature of Exhibit 2 and Exhibit 3 and the fact that the Court has already seen the documents,
they are not being filed publicly on NYSCEF. If the Court would like me to file a copy under seal, I will be happy
to do so.
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Contrary to the contention that individual items were not itemized, the Court saw that individual
amounts in individual bank accounts were in fact enumerated and itemized in Attachment Six, as
well as in the Schedule itself, such as with respect to Item 14 (Accounts Receivable). In the
document, Plaintiff listed her entire universe of assets at that time, which she listed as $260,000,
which obviously excluded any purported $150,000 gift sitting in Defendant’s escrow account,
since the $260,000 is in fact broken down in the Schedule and Attachment ($205k in itemized
checking and savings accounts and $55k in account receivables). There were numerous items in
which the purported gift would have fallen, such as being a separate listing on Attachment 6, or
in Item 8, 14, or 16 on the Schedule itself. Rather, it is clear that the $150,000 did not appear in
the Disclosure, not “because these documents only contain aggregate amounts and do not itemize
individual earnings or gifts,” but because Plaintiff did not disclose any $150,000 purported gift
(because there was no such gift). Thus, Plaintiff and her teams continued to lie with impunity to
court after court, including this one.
8. Recognizing Plaintiff’s bad faith response, the Court ordered Plaintiff to turn over the
final executed version. See NYSCEF Doc. 209, Sep. 8 Tr. 19:20-20:7 (“And so it's either -- so
like I said, it's either incomplete or it's deliberately misleading so that when Mr. Neuman wants
to cross-examine Ms. Stolper, she's able to say, Well, I didn't say that it was on my statement.
Either way, it doesn't work. You know, Oh, I didn't say that it was not my statement. He's
entitled to explore this is what I'm trying to say to you. So he gets an answer as to what position
she took as it relates to this $150,000 in the California divorce, and this doesn't give him that,
and that was the point of an affirmation. And if I wasn't satisfied, I said I'd look at it in camera.
So unless you can satisfy him with a substitute affidavit by Friday, you're going to turn over the
final statement, period.”)
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9. The Court entered this into a written order as well. See NYSCEF Doc. 207.
10. Despite this unequivocal directive from the Court, Plaintiff has failed to turn over the
document. Instead, Plaintiff only turned over her divorce Judgment and the verification page
(and nothing else) from her discovery responses in the divorce action.
11. I emailed Plaintiff’s counsel on September 13 about Plaintiff’s failure to turn over this
document. Despite not having turned over the executed Declaration of Disclosure, Plaintiff’s
response was that she fully complied. As such, I informed Plaintiff’s counsel that I would be
moving for contempt, as the Court essentially said my relief would be for Plaintiff’s bad faith
noncompliance with the first order. See NYSCEF Doc. 209, Sep. 8 Tr. 16:23-25 (“THE
COURT: I mean, do you want me to let him bring a motion seeking to hold you in contempt? I
mean, I don't know what to say other than –“)
12. As Plaintiff has refused to turn over this document, now for a second time, it is
respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate
discovery sanctions should be assessed against Plaintiff.
13. Additionally, sanctions should be assessed against Plaintiff for her frivolous conduct and
perjury.
The Divorce Discovery Responses
14. Similarly with respect to the discovery responses from Plaintiff’s California divorce,
Plaintiff and her team once again, using the same false language, stated that the $150,000
purported gift did not appear in the document “because these documents only contain aggregate
amounts and do not itemize individual earnings or gifts.” This was once again a patent
falsehood.
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15. Annexed to the September 7, 2022 pre-conference email to the Court as Exhibit 3 were
Plaintiff’s draft responses to the discovery demands. As the Court will recall, for example,
Demand #3 (page 10 of the exhibit) asked for documents relating to a number of items, including
gifts. Plaintiff responded that she had given over all responsive documents, and itemized three
places where there might be additional documents. Yet, nothing relating to the purported
$150,000 gift that was allegedly sitting in my client’s account was disclosed. Hence, once again,
it was NOT not disclosed “because these documents only contain aggregate amounts and do not
itemize individual earnings or gifts,” but rather because there was no disclosure about it. The
same would be true with respect to Demand #5 (page 12 of the exhibit). Plaintiff and her team
once again simply refused to be honest in this case.
16. (The same would apply to the $125,000/$250,000 commission.2 No such document was
turned over by Ms. Stolper in the divorce relating to any $250,000 commission.)
17. As with the executed divorce disclosure, recognizing Plaintiff’s bad faith response, the
Court once again ordered that I was entitled to the document. See NYSCEF Doc. 209, Sep. 8 Tr.
23:1-7.3
18. Despite this clear directive, Plaintiff has only turned over the verification page, but not
her final responses to the discovery demands or any documents that she turned over relating to
alleged gifts or the $250,000/$125,000 commission.
2
As the Court will recall, Plaintiff now claims that a $250,000 commission that was split with my client was in fact
solely Plaintiff’s.
3
THE COURT: He's entitled to know what it is that your client said to the court in California about gifts.
MS. AYZEN: Well, this wouldn't be for the court, this would be just to Mr. Sher's just discovery responses --
THE COURT: That goes to the court because that will form the basis -- come on. No, he gets this.
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19. As Plaintiff has refused to turn over this document, now for a second time, it is
respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate
discovery sanctions should be assessed against Plaintiff.
20. Additionally, sanctions should be assessed against Plaintiff for her frivolous conduct and
perjury.
Identification of Documents Referred to in the Deposition
21. Despite being ordered to do so (NYSCEF Doc. 204, Aug. 8 Tr. 47:21-23), Plaintiff has
not identified the purported documents to which she was referring in her deposition.
22. As Plaintiff has refused to abide by the Court’s ruling and identify these documents, it is
respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate
discovery sanctions should be assessed against Plaintiff.
Plaintiff’s Texting During her Deposition
23. As the Court will recall from my prior submission and the transcript from August 8,
during Plaintiff’s Zoom deposition, it appeared to me at times that she was texting on her phone.
When the Court reached this item at the last conference, Ms. Ayzen insisted that “MS. AYZEN:
Your Honor, she did not do that. She was not text messaging. This was a remote deposition.
Perhaps that might have been what it looked like.” (NYSCEF Doc. 204, Aug. 8 Tr. 28:20-22)
24. In response, the Court ruled that “THE COURT: And this text message thing, I am
ordering the production of text messages sent during the time period that the deposition took
place. If there are none, you will produce phone records that show that. You can redact
everything outside of the time in which the deposition took place. If text messages were sent,
she's going to end up surrendering her phone, and I will do a forensic exam of her cell
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phone.” Aug. 8 Tr. 29:8-15 (emphasis added). After the Court explained the severity and
inappropriateness of this conduct (Aug. 8 Tr. 29:16-30:6), Ms. Ayzen again insisted that “MS.
AYZEN: There were certainly no text messages with us, that's for sure.”
25. This in fact mirrored the statements made by Plaintiff and her counsel during the
deposition.
26. As can be seen from Plaintiff’s January 7, 2022 Deposition Transcript (annexed hereto as
EXHIBIT 2; the January 14, 2022 Deposition Transcript is annexed hereto as EXHIBIT 3), we
went on the record at 10:08 am EST (7:08am PST). At page 52, it was the first time that I
noticed what appeared to be texting from Ms. Stolper, although because her phone was off-
screen, I could not be certain.4
27. The next time I noticed anything was at page 133. This time, Ms. Stolper admitted to
receiving text messages, but at my mention of demanding all of the texts from the deposition,
Mr. Russo bristled and insisted that he had not been texting with her “period.”5
4
January 7, 2022 Dep. Tr. 52:6-19
Q Okay. Ms. Stolper, when I was trying to get your attention, were you on your cell phone?
A No.
Q Are you texting anybody right now?
A No.
Q Have you received any texts during this deposition?
A No. I was reading in my notebook.
Q What were you reading?
A Things to do today after this deposition.
5
January 7, 2022 Dep. Tr. 133:21-135:7
Q Ms. Stolper, is somebody texting you right now?
A Yes, Jonathan. It's 9:24 on a Friday morning on a workday, so yes, I'm getting text, but not from my attorney.
MR. NEUMAN: We're going to demand production of all the texts from this deposition.
MR. RUSSO: All the text in this deposition? Jonathan, I will make the representation, I'm not texting Ms.
Stolper period. Go head.
THE WITNESS: My text come up on my computer. So if somebody's texting me, it's a Friday, it's a workday.
Q Are there any attorneys that are texting you right now?
A No.
Q Nobody from Mr. Russo's law firm?
A Nobody from Mr. Russo's law firm is texting me.
MR. RUSSO: Are you serious?
MR. NEUMAN: I am. I am. Because we're in the middle of a deposition and your client keeps looking at her phone.
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28. In response to the Court’s Order, however, Ms. Stolper turned over redacted phone
records and copies of text messages showing that she was texting with her attorney during the
deposition, thus showing that not only had she and Mr. Russo lied during the deposition, but that
Ms. Ayzen had lied to the Court as well on August 8 in an attempt to get the Court not to order
the turning over of these records. These records are annexed hereto as EXHIBIT 4. (The 914
area code phone number from White Plains is the cellphone for Plaintiff’s attorney, Martin
Russo.)
29. As quoted above in footnote 5, Ms. Stolper admitted during the deposition that texts were
appearing on her computer screen during the deposition. This can be done through the use of
applications such as WhatsApp, Telegram, iMessage and/or other messaging apps and email,
which would not show up on a phone bill or be reflected in a phone log.
30. Accordingly, it is respectfully submitted that the Court follow through on what it said,
and order the phone to be surrendered for a forensic examination (NYSCEF Doc. 204, Aug. 8 Tr.
29:8-15), to check to see if there were any communications sent between Plaintiff and her
counsel through means other than text, such as Whatsapp, iMessage, Telegram and/or other
messaging apps and email. In light of Plaintiff’s and her attorney’s demonstrated dishonesty in
this regard both during the deposition and to the Court, it is impossible to take Plaintiff or her
counsel’s word on it that there were no more communications. Had I not caught Plaintiff and her
counsel texting during the deposition, they likely would have continued doing so. Once I caught
them, it is very possible that they switched over to a different communication method, and it is
THE WITNESS: I wasn't looking at my phone, I was looking at my computer screen.
MR. RUSSO: I know you think your deposition is very effective, but I wouldn't bother with that.
THE WITNESS: Thank you, Marty. Preposterous.
(emphasis added)
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respectfully submitted that a forensic evaluation for same should be ordered (for both
depositions), and that Plaintiff be ordered to pay for such forensic examination.
31. Additionally, once again Plaintiff should also be sanctioned for her frivolous conduct and
perjury.
Plaintiff’s Phone Call with her Attorney During her Deposition
32. The next and final item is particularly egregious, and deserves the severest of sanctions.
33. During Plaintiff’s deposition, the first break that we took was at page 99 (EXHIBIT 2),
in order for Mr. Russo to calm his client down. As reflected in the transcript, it was a 5-minute
break, and we came back at 11:48 am (8:48 am PST). This is corroborated by Ms. Stolper’s
phone records (annexed hereto as EXHIBIT 5), which show her having a 3-minute phone
conversation with Mr. Russo at 11:43 am (8:43 PST). As can be seen from the transcript, prior
to that we had had no breaks.
34. And yet, Ms. Stolper’s phone records reveal that at 10:27 am (8:27 am PST), she
had had a 10-minute incoming call from Mr. Russo. See EXHIBIT 5.
35. This once again matches the deposition transcript, when I had noticed something funny
during the deposition. At page 88 of the transcript (EXHIBIT 2), I thought I heard a cellphone
go off, and I asked Ms. Stolper if she was receiving a call. She said that she had, but that she had
declined it.6
6
January 7, 2022 Dep. Tr. 88:13-23
Q Ms. Stolper, that sounds like a cell phone, is that --
A Yes. I declined a call on my cell.
Q You still have not received any texts, correct?
A Correct.
Q Are you --
MR. RUSSO: Off the record.
(Whereupon, an off-the-record discussion took place.)
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36. Apparently, however, this was a lie. Apparently, Ms. Stolper’s attorney called her in the
middle of a virtual deposition while on the record and stayed on the phone with her for 10
minutes, presumably feeding her answers. While that would be difficult to do in a traditional in-
person deposition, in a virtual deposition, with Mr. Russo on mute, I would not be able to tell
that he was feeding her answers. And I caught Ms. Stolper in her second deposition wearing an
earpiece,7 which could easily have been covered up in the first deposition with her hair or by
angling away from the camera.
37. Lest Plaintiff and her attorney insist that he was not calling her, or that this was during a
break (even though, as stated, the transcript proves that there were no breaks prior to that point),
Plaintiff’s phone call log (EXHIBIT 5) shows that she did not receive any other phone calls
during that time period, which means that the phone call that she received during the deposition
that she claims to have declined could only have come from Mr. Russo, and could only be this 10
minute call (which again, it has to be anyway since the first break we took was at 11:43 am EST
/ 8:43 am PST, as discussed above).
38. Presumably, the plan would have been for Ms. Stolper to have her phone on silent, which
would make the incoming call incapable of detection, but she apparently bungled their plan, and
quickly scrambled to try to turn off the ringer, but thankfully I had noticed it. And presumably it
would have happened at the second deposition as well had I not noticed the Apple Air Pod in
Ms. Stolper’s ear.
[In the brief off the record discussion, Mr. Russo again insisted that nothing untoward was taking place and
expressed umbrage at the insinuation.]
7
January 14, 2022 Dep. Tr. 308:17-22
Q. Before we start, it looks like you have an Air Pod in your ear?
A. Yeah.
Q. Can you take it out for the deposition?
A. Of course.
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39. This revelation is shocking, outrageous, and devastating. As the Court knows, a
deposition is the one chance for an attorney to lock in the opposing party’s testimony and attempt
to gain a concession for use in summary judgment and/or trial. To learn that Ms. Stolper was
apparently being fed answers during her deposition is staggering and unforgiveable. There is no
excuse that can be made up for why Plaintiff and her attorney would be calling each other in the
middle of deposition testimony, or why Plaintiff’s attorney would be calling her in the middle of
a deposition. None.
40. At this point, Defendant has been irrevocably prejudiced, and it is respectfully submitted
that nothing short of a dismissal of Plaintiff’s claims with prejudice, together with additional
sanctions, such as attorney’s fees for the entire case, would be appropriate for Plaintiff’s and her
counsel’s outrageous deposition conduct.
41. During the September 8 conference, the Court suggested that perhaps appropriate relief
would be a deposition of Plaintiff’s attorney. However, respectfully, the oath of an attorney who
is willing to contact his client during a deposition, outright lie about having contact with the client
during the deposition, and then lie to the Court about any contact, means little. Plaintiff’s counsel
will never admit the truth of what happened during the deposition, oath or not. Accordingly, it is
respectfully submitted that this relief would be no relief at all. Only the ultimate sanction is
appropriate for this shocking, egregious, sanctionable conduct.
PLAINTIFF SHOULD BE HELD IN CIVIL AND CRIMINAL CONTEMPT
42. As set forth by the Court of Appeals:
Under Judiciary Law § 753,
"[a] court of record has power to punish, by fine and imprisonment, or
either, a neglect or violation of duty, or other misconduct, by which a right
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or remedy of a party to a civil action or special proceeding, pending in the
court may be defeated, impaired, impeded, or prejudiced" (Judiciary Law §
753 [A]; see generally People v Sweat, 24 NY3d 348, 353-354, 998 NYS2d
688, 23 NE3d 955 [2014] [discussing Judiciary Law § 753]).
In Matter of McCormick v Axelrod (59 NY2d 574, 453 NE2d 508, 466 NYS2d 279
[1983]), this Court described the elements necessary to support a finding of civil
contempt. First, "it must be determined that a lawful order of the court, clearly
expressing an unequivocal mandate, was in effect" (id. at 583). Second, "[i]t must
appear, with reasonable certainty, that the order has been disobeyed" (id.). Third,
"the party to be held in contempt must have had knowledge of the court's order,
although it is not necessary that the order actually have been served upon the party"
(id.). Fourth, "prejudice to the right of a party to the litigation must be
demonstrated" (id.; see Karg v Kern, 125 AD3d 527, 528-529, 4 NYS3d 184 [1st
Dept 2015] [ contempt requires a showing of a violation of a clear and unequivocal
court mandate and that the movant was thereby prejudiced]; Matter of Vernon D.
[Tarah F.], 119 AD3d 784, 784, 989 NYS2d 334 [2d Dept 2014] [civil contempt
was properly found where the contemnor did not obey a clear and unequivocal
order]; Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537,
1538, 943 NYS2d 357 [4th Dept 2012] [order violated must be an unequivocal
mandate]; Conners v Pallozzi, 241 AD2d 719, 719, 660 NYS2d 189 [3d Dept 1997]
[ evidence proving with a reasonable certainty that a prior court order has been
violated will support a finding of civil contempt]; N.A. Dev. Co. v Jones, 99 AD2d
238, 242, 472 NYS2d 363 [1st Dept 1984] [movant must establish a reasonable
certainty]; Power Auth. of State of N.Y. v Moeller, 57 AD2d 380, 382, 395 NYS2d
497 [3d Dept 1977] [personal service is not necessary if the party has actual
knowledge of the order], lv denied 42 NY2d 806 [1977]).
El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 28-29, 19 N.Y.S.3d 475, 480-81, 41 N.E.3d 340, 345-46
(2015).
43. As further explained by the Court of Appeals:
3. Wilfulness is Not a Required Element of Civil Contempt
Defendant argues that Supreme Court's finding of contempt is not supported by the
record because the evidence failed to establish that he wilfully disobeyed the
January 2010 order. According to defendant our case law establishes that wilful
conduct is a necessary element of both civil and criminal contempt, and that what
distinguishes the two is merely the level of a contemnor's wilfulness. Defendant's
arguments are contradicted by statute as well as our prior holdings (McCormick, 59
NY2d at 583).
Turning to the relevant statutory provision, nowhere in Judiciary Law § 753 (A) (3)
is wilfulness explicitly set forth as an element of civil contempt (see also McCain
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v Dinkins, 84 NY2d 216, 226, 639 NE2d 1132, 616 NYS2d 335 [1994]). Indeed
the only mention of wilfulness for civil contempt is in section 753 (A) (1), which
is not at issue in this case as it applies only to "[a]n attorney, counsellor, clerk,
sheriff, coroner," or someone otherwise selected or appointed for judicial or
ministerial service. In contrast, Judiciary Law § 750, the criminal contempt
provision, permits a court to impose punishment for criminal contempt only for
"[w]ilful disobedience to its lawful mandate" (Judiciary Law § 750 [A] [3]; see also
Sweat, 24 NY3d at 353-354). This statutory language makes clear that where the
legislature intended to require wilfulness, it knew how to do so, and any omission
of such element is intentional (McKinney's Cons Laws of NY, Book 1, Statutes §
74; Pajak v Pajak, 56 NY2d 394, 397, 437 NE2d 1138, 452 NYS2d 381 [1982] [
"(t)he failure of the Legislature to include a matter within a particular statute is an
indication that itsexclusion was intended"]). We are, of course, not at liberty to
read into the statute what is not mandated by the legislature (McKinney's Cons
Laws of NY, Book 1, Statutes § 94; Lederer v Wise Shoe Co., 276 NY 459, 465, 12
NE2d 544 [1938] [ "(w)e do not by implication read into a clause of a rule or statute
a limitation for which we find no sound reason and which would render the clause
futile"]).
El-Dehdan, 26 N.Y.3d at 33-34.
44. Accordingly, it is clear that Plaintiff must be held in both civil and criminal contempt.
Here there was a clear and lawful mandate by the Court to Plaintiff to turn over the above-
referenced documents. This Order has been clearly disobeyed. It is clear that Plaintiff was
aware of the order, since she turned over certain documents. And, fourth, Defendant’s rights are
clearly prejudiced, since these documents will form the basis for Defendant’s motion for
summary judgment dismissing Plaintiff’s bad faith, false, frivolous, defamatory claims.
45. It is clear that Plaintiff must be held in contempt, as that will be the only method to make
her understand that when the Court orders you to do something, you must comply.
46. Accordingly, it is respectfully requested that this Court find Plaintiff to be in both civil
and criminal contempt, and that this Court impose the maximum sanctions upon Plaintiff,
including both fine and imprisonment.
47. Additionally, it is respectfully requested that this Court order Plaintiff to pay Defendant’s
costs and attorney’s fees in connection with this matter, with an affirmation of legal services to
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be provided within ten days of the granting of the motion. See, e.g., Schwartz v. Schwartz, 79
A.D.3d 1006, 1010, 913 N.Y.S.2d 313, 317 (2nd Dep't 2010) (“Moreover, the Supreme Court
should have granted that branch of the wife's motion which was for an award of attorney's fees.
"Judiciary Law § 773 permits recovery of attorney's fees from the offending party by a party
aggrieved by the contemptuous conduct". In this case, the attorney's fees incurred by the wife in
connection with her motion determined by the November 2008 order, and in connection with her
motion determined by the order appealed from, are directly related to the husband's
contemptuous conduct.”) (internal citations omitted).
PLAINTIFF SHOULD BE SANCTIONED
48. As discussed above, Plaintiff’s and her attorney’s conduct in this case has been shocking,
egregious, willful, perjurious, and sanctionable.
49. Accordingly, it is respectfully submitted that the Court should award appropriate
sanctions, including attorney’s fees, as allowed under this Court’s general authority under CPLR
§3126 (including subdivisions (1), (2), and/or (3) as the Court deems appropriate), as well as
pursuant to 22 NYCRR § 130-1.1.
50. Additionally, Plaintiff should be sanctioned under the Court’s “inherent power to address
actions which are meant to undermine the truth-seeking function of the judicial system and place
in question the integrity of the courts and our system of justice.” CDR Créances S.A.S. v.
Cohen, 23 N.Y.3d 307, 318, 991 N.Y.S.2d 519, 527, 15 N.E.3d 274, 282 (2014).
51. As explained by the Court of Appeals, “Characteristic of federal cases finding such fraud
is a systematic and pervasive scheme, designed to undermine the judicial process and thwart the
nonoffending party's efforts to assert a claim or defense by the offending party's repeated perjury
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or falsification of evidence. Fraud on the court warrants heavy sanctions, including the striking
of an offending party's pleadings and dismissal of the action…. The evidentiary standard applied
by the federal courts is sufficient to protect the integrity of our judicial system, and discourage
the type of egregious and purposeful conduct designed to undermine the truth-seeking function
of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard
…” Id. at 319-20 (finding “no error in the Appellate Division’s order affirming the striking of
defendants’ answers and entering a default judgment. The record reveals numerous instances of
perjury, subornation of perjury, witness tampering and falsification of documents by
defendants,” and collecting federal cases involving dismissal for perjury because “no sanction
short of dismissal [would] suffice to deter future misconduct”).
52. It is respectfully submitted that it has been shown throughout this case, including
Plaintiff’s refusal to turn over her settlement agreement with Mariah Carey only to seek to
immediately withdraw her defamation claim once the Court ordered her to do so, and her false
Jackson affidavit as discussed in the August 8 conference with the Court, that this case has been
rife with perjury, subornation of perjury, tampering with deposition proceedings, and other bad
faith conduct by Plaintiff designed to undermine the judicial process and thwart the nonoffending
party's efforts to assert a claim or defense. Accordingly, it is respectfully submitted that no
sanction short of dismissal would suffice to deter Plaintiff’s future misconduct, and that this
Court should strike Plaintiff’s pleading and enter a default judgment against Plaintiff.
WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court
issue an order granting Defendant’s motion in its entirety, holding Plaintiff in civil and criminal
contempt of court, awarding appropriate sanctions against Plaintiff including the striking of
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Plaintiff’s pleading and a judgment against Plaintiff, an award of attorney’s fees, and ordering a
forensic search of Plaintiff’s computers and cellphones; together with such other, further, and
different relief as to the Court may seem just and proper.
Dated: Fresh Meadows, New York
September 15, 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
September 15, 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 5,001 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
September 15, 2022
/Jonathan E. Neuman/
Preview
FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X STELLA STOLPER, AFFIRMATION IN SUPPORT Plaintiff, Motion Sequence No. 15 -vs- Index No. 652352/2018 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 Defendant in the above-entitled action and am fully familiar with all of the facts and circumstances heretofore had herein. I make this affirmation in support of Defendant’s motion to hold Plaintiff in civil and criminal contemp, and for appropriate discovery relief and sanctions. Please additionally allow this to serve as my affirmation of good faith pursuant to 22 NYCRR 202.7. 2. No previous application has been made to any court or judge for the relief requested herein. 3. On August 8, 2022, the Court ordered Plaintiff, inter alia, to produce the following documents: a) The executed Declaration of Divorce from her California divorce with Brian Sher; b) The executed final Discovery Demand Responses from her California Divorce with Brian Sher; c) Bates-stamp identification of specific documents referred to by Plaintiff during her deposition; and d) Phone Logs and all Text Messages that took place during Plaintiff’s depositions. e) (Plaintiff was also ordered to produce all documents relating to her alleged defamation claim; however Plaintiff produced nothing.) Page 1 of 17 1 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 See NYSCEF Doc. 204. 4. Despite multiple emails trying to resolve the issue without court intervention, Plaintiff, failed to comply and failed to produce these ordered items. The Divorce Declaration of Disclosure 5. With respect to the executed Declaration of Disclosure from Plaintiff’s California divorce, the Court ordered Plaintiff to turn over such document, because it would be relevant both for judicial estoppel purposes as well as general relevance and credibility as to Plaintiff’s claim that Defendant was holding onto a $150,000 gift for her. (Aug. 8 Tr. 25:7-14) The Court gave Plaintiff an alternative, that her attorney could review the document and provide an affirmation that the $150,000 purported gift does not appear in the document, together with an affidavit from Ms. Stolper as to why it does not appear in the document. 6. In response to this item, Plaintiff and her counsel provided an affidavit/affirmation stating that the $150,000 does not appear “as an individually identifiable amount” in the document “because these documents only contain aggregate amounts and do not itemize individual earnings or gifts.” See EXHIBIT 1 annexed hereto. 7. This is an incredibly bad faith response, that it in and of itself should be sanctionable. As the Court will recall, in a pre-conference letter to the Court (NYSCEF Doc. 212), Plaintiff emailed the Court a copy of an unexecuted Declaration of Disclosure that was in my client’s possession. (This was emailed to the Court as Exhibit 2)1 As the Court will recall, there was no mention of the $150,000, not “because these documents only contain aggregate amounts and do not itemize individual earnings or gifts,” but rather because no such amount was ever disclosed. 1 Due to the sensitive nature of Exhibit 2 and Exhibit 3 and the fact that the Court has already seen the documents, they are not being filed publicly on NYSCEF. If the Court would like me to file a copy under seal, I will be happy to do so. Page 2 of 17 2 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 Contrary to the contention that individual items were not itemized, the Court saw that individual amounts in individual bank accounts were in fact enumerated and itemized in Attachment Six, as well as in the Schedule itself, such as with respect to Item 14 (Accounts Receivable). In the document, Plaintiff listed her entire universe of assets at that time, which she listed as $260,000, which obviously excluded any purported $150,000 gift sitting in Defendant’s escrow account, since the $260,000 is in fact broken down in the Schedule and Attachment ($205k in itemized checking and savings accounts and $55k in account receivables). There were numerous items in which the purported gift would have fallen, such as being a separate listing on Attachment 6, or in Item 8, 14, or 16 on the Schedule itself. Rather, it is clear that the $150,000 did not appear in the Disclosure, not “because these documents only contain aggregate amounts and do not itemize individual earnings or gifts,” but because Plaintiff did not disclose any $150,000 purported gift (because there was no such gift). Thus, Plaintiff and her teams continued to lie with impunity to court after court, including this one. 8. Recognizing Plaintiff’s bad faith response, the Court ordered Plaintiff to turn over the final executed version. See NYSCEF Doc. 209, Sep. 8 Tr. 19:20-20:7 (“And so it's either -- so like I said, it's either incomplete or it's deliberately misleading so that when Mr. Neuman wants to cross-examine Ms. Stolper, she's able to say, Well, I didn't say that it was on my statement. Either way, it doesn't work. You know, Oh, I didn't say that it was not my statement. He's entitled to explore this is what I'm trying to say to you. So he gets an answer as to what position she took as it relates to this $150,000 in the California divorce, and this doesn't give him that, and that was the point of an affirmation. And if I wasn't satisfied, I said I'd look at it in camera. So unless you can satisfy him with a substitute affidavit by Friday, you're going to turn over the final statement, period.”) Page 3 of 17 3 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 9. The Court entered this into a written order as well. See NYSCEF Doc. 207. 10. Despite this unequivocal directive from the Court, Plaintiff has failed to turn over the document. Instead, Plaintiff only turned over her divorce Judgment and the verification page (and nothing else) from her discovery responses in the divorce action. 11. I emailed Plaintiff’s counsel on September 13 about Plaintiff’s failure to turn over this document. Despite not having turned over the executed Declaration of Disclosure, Plaintiff’s response was that she fully complied. As such, I informed Plaintiff’s counsel that I would be moving for contempt, as the Court essentially said my relief would be for Plaintiff’s bad faith noncompliance with the first order. See NYSCEF Doc. 209, Sep. 8 Tr. 16:23-25 (“THE COURT: I mean, do you want me to let him bring a motion seeking to hold you in contempt? I mean, I don't know what to say other than –“) 12. As Plaintiff has refused to turn over this document, now for a second time, it is respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate discovery sanctions should be assessed against Plaintiff. 13. Additionally, sanctions should be assessed against Plaintiff for her frivolous conduct and perjury. The Divorce Discovery Responses 14. Similarly with respect to the discovery responses from Plaintiff’s California divorce, Plaintiff and her team once again, using the same false language, stated that the $150,000 purported gift did not appear in the document “because these documents only contain aggregate amounts and do not itemize individual earnings or gifts.” This was once again a patent falsehood. Page 4 of 17 4 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 15. Annexed to the September 7, 2022 pre-conference email to the Court as Exhibit 3 were Plaintiff’s draft responses to the discovery demands. As the Court will recall, for example, Demand #3 (page 10 of the exhibit) asked for documents relating to a number of items, including gifts. Plaintiff responded that she had given over all responsive documents, and itemized three places where there might be additional documents. Yet, nothing relating to the purported $150,000 gift that was allegedly sitting in my client’s account was disclosed. Hence, once again, it was NOT not disclosed “because these documents only contain aggregate amounts and do not itemize individual earnings or gifts,” but rather because there was no disclosure about it. The same would be true with respect to Demand #5 (page 12 of the exhibit). Plaintiff and her team once again simply refused to be honest in this case. 16. (The same would apply to the $125,000/$250,000 commission.2 No such document was turned over by Ms. Stolper in the divorce relating to any $250,000 commission.) 17. As with the executed divorce disclosure, recognizing Plaintiff’s bad faith response, the Court once again ordered that I was entitled to the document. See NYSCEF Doc. 209, Sep. 8 Tr. 23:1-7.3 18. Despite this clear directive, Plaintiff has only turned over the verification page, but not her final responses to the discovery demands or any documents that she turned over relating to alleged gifts or the $250,000/$125,000 commission. 2 As the Court will recall, Plaintiff now claims that a $250,000 commission that was split with my client was in fact solely Plaintiff’s. 3 THE COURT: He's entitled to know what it is that your client said to the court in California about gifts. MS. AYZEN: Well, this wouldn't be for the court, this would be just to Mr. Sher's just discovery responses -- THE COURT: That goes to the court because that will form the basis -- come on. No, he gets this. Page 5 of 17 5 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 19. As Plaintiff has refused to turn over this document, now for a second time, it is respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate discovery sanctions should be assessed against Plaintiff. 20. Additionally, sanctions should be assessed against Plaintiff for her frivolous conduct and perjury. Identification of Documents Referred to in the Deposition 21. Despite being ordered to do so (NYSCEF Doc. 204, Aug. 8 Tr. 47:21-23), Plaintiff has not identified the purported documents to which she was referring in her deposition. 22. As Plaintiff has refused to abide by the Court’s ruling and identify these documents, it is respectfully submitted that Plaintiff should be held in contempt of court, and that appropriate discovery sanctions should be assessed against Plaintiff. Plaintiff’s Texting During her Deposition 23. As the Court will recall from my prior submission and the transcript from August 8, during Plaintiff’s Zoom deposition, it appeared to me at times that she was texting on her phone. When the Court reached this item at the last conference, Ms. Ayzen insisted that “MS. AYZEN: Your Honor, she did not do that. She was not text messaging. This was a remote deposition. Perhaps that might have been what it looked like.” (NYSCEF Doc. 204, Aug. 8 Tr. 28:20-22) 24. In response, the Court ruled that “THE COURT: And this text message thing, I am ordering the production of text messages sent during the time period that the deposition took place. If there are none, you will produce phone records that show that. You can redact everything outside of the time in which the deposition took place. If text messages were sent, she's going to end up surrendering her phone, and I will do a forensic exam of her cell Page 6 of 17 6 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 phone.” Aug. 8 Tr. 29:8-15 (emphasis added). After the Court explained the severity and inappropriateness of this conduct (Aug. 8 Tr. 29:16-30:6), Ms. Ayzen again insisted that “MS. AYZEN: There were certainly no text messages with us, that's for sure.” 25. This in fact mirrored the statements made by Plaintiff and her counsel during the deposition. 26. As can be seen from Plaintiff’s January 7, 2022 Deposition Transcript (annexed hereto as EXHIBIT 2; the January 14, 2022 Deposition Transcript is annexed hereto as EXHIBIT 3), we went on the record at 10:08 am EST (7:08am PST). At page 52, it was the first time that I noticed what appeared to be texting from Ms. Stolper, although because her phone was off- screen, I could not be certain.4 27. The next time I noticed anything was at page 133. This time, Ms. Stolper admitted to receiving text messages, but at my mention of demanding all of the texts from the deposition, Mr. Russo bristled and insisted that he had not been texting with her “period.”5 4 January 7, 2022 Dep. Tr. 52:6-19 Q Okay. Ms. Stolper, when I was trying to get your attention, were you on your cell phone? A No. Q Are you texting anybody right now? A No. Q Have you received any texts during this deposition? A No. I was reading in my notebook. Q What were you reading? A Things to do today after this deposition. 5 January 7, 2022 Dep. Tr. 133:21-135:7 Q Ms. Stolper, is somebody texting you right now? A Yes, Jonathan. It's 9:24 on a Friday morning on a workday, so yes, I'm getting text, but not from my attorney. MR. NEUMAN: We're going to demand production of all the texts from this deposition. MR. RUSSO: All the text in this deposition? Jonathan, I will make the representation, I'm not texting Ms. Stolper period. Go head. THE WITNESS: My text come up on my computer. So if somebody's texting me, it's a Friday, it's a workday. Q Are there any attorneys that are texting you right now? A No. Q Nobody from Mr. Russo's law firm? A Nobody from Mr. Russo's law firm is texting me. MR. RUSSO: Are you serious? MR. NEUMAN: I am. I am. Because we're in the middle of a deposition and your client keeps looking at her phone. Page 7 of 17 7 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 28. In response to the Court’s Order, however, Ms. Stolper turned over redacted phone records and copies of text messages showing that she was texting with her attorney during the deposition, thus showing that not only had she and Mr. Russo lied during the deposition, but that Ms. Ayzen had lied to the Court as well on August 8 in an attempt to get the Court not to order the turning over of these records. These records are annexed hereto as EXHIBIT 4. (The 914 area code phone number from White Plains is the cellphone for Plaintiff’s attorney, Martin Russo.) 29. As quoted above in footnote 5, Ms. Stolper admitted during the deposition that texts were appearing on her computer screen during the deposition. This can be done through the use of applications such as WhatsApp, Telegram, iMessage and/or other messaging apps and email, which would not show up on a phone bill or be reflected in a phone log. 30. Accordingly, it is respectfully submitted that the Court follow through on what it said, and order the phone to be surrendered for a forensic examination (NYSCEF Doc. 204, Aug. 8 Tr. 29:8-15), to check to see if there were any communications sent between Plaintiff and her counsel through means other than text, such as Whatsapp, iMessage, Telegram and/or other messaging apps and email. In light of Plaintiff’s and her attorney’s demonstrated dishonesty in this regard both during the deposition and to the Court, it is impossible to take Plaintiff or her counsel’s word on it that there were no more communications. Had I not caught Plaintiff and her counsel texting during the deposition, they likely would have continued doing so. Once I caught them, it is very possible that they switched over to a different communication method, and it is THE WITNESS: I wasn't looking at my phone, I was looking at my computer screen. MR. RUSSO: I know you think your deposition is very effective, but I wouldn't bother with that. THE WITNESS: Thank you, Marty. Preposterous. (emphasis added) Page 8 of 17 8 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 respectfully submitted that a forensic evaluation for same should be ordered (for both depositions), and that Plaintiff be ordered to pay for such forensic examination. 31. Additionally, once again Plaintiff should also be sanctioned for her frivolous conduct and perjury. Plaintiff’s Phone Call with her Attorney During her Deposition 32. The next and final item is particularly egregious, and deserves the severest of sanctions. 33. During Plaintiff’s deposition, the first break that we took was at page 99 (EXHIBIT 2), in order for Mr. Russo to calm his client down. As reflected in the transcript, it was a 5-minute break, and we came back at 11:48 am (8:48 am PST). This is corroborated by Ms. Stolper’s phone records (annexed hereto as EXHIBIT 5), which show her having a 3-minute phone conversation with Mr. Russo at 11:43 am (8:43 PST). As can be seen from the transcript, prior to that we had had no breaks. 34. And yet, Ms. Stolper’s phone records reveal that at 10:27 am (8:27 am PST), she had had a 10-minute incoming call from Mr. Russo. See EXHIBIT 5. 35. This once again matches the deposition transcript, when I had noticed something funny during the deposition. At page 88 of the transcript (EXHIBIT 2), I thought I heard a cellphone go off, and I asked Ms. Stolper if she was receiving a call. She said that she had, but that she had declined it.6 6 January 7, 2022 Dep. Tr. 88:13-23 Q Ms. Stolper, that sounds like a cell phone, is that -- A Yes. I declined a call on my cell. Q You still have not received any texts, correct? A Correct. Q Are you -- MR. RUSSO: Off the record. (Whereupon, an off-the-record discussion took place.) Page 9 of 17 9 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 36. Apparently, however, this was a lie. Apparently, Ms. Stolper’s attorney called her in the middle of a virtual deposition while on the record and stayed on the phone with her for 10 minutes, presumably feeding her answers. While that would be difficult to do in a traditional in- person deposition, in a virtual deposition, with Mr. Russo on mute, I would not be able to tell that he was feeding her answers. And I caught Ms. Stolper in her second deposition wearing an earpiece,7 which could easily have been covered up in the first deposition with her hair or by angling away from the camera. 37. Lest Plaintiff and her attorney insist that he was not calling her, or that this was during a break (even though, as stated, the transcript proves that there were no breaks prior to that point), Plaintiff’s phone call log (EXHIBIT 5) shows that she did not receive any other phone calls during that time period, which means that the phone call that she received during the deposition that she claims to have declined could only have come from Mr. Russo, and could only be this 10 minute call (which again, it has to be anyway since the first break we took was at 11:43 am EST / 8:43 am PST, as discussed above). 38. Presumably, the plan would have been for Ms. Stolper to have her phone on silent, which would make the incoming call incapable of detection, but she apparently bungled their plan, and quickly scrambled to try to turn off the ringer, but thankfully I had noticed it. And presumably it would have happened at the second deposition as well had I not noticed the Apple Air Pod in Ms. Stolper’s ear. [In the brief off the record discussion, Mr. Russo again insisted that nothing untoward was taking place and expressed umbrage at the insinuation.] 7 January 14, 2022 Dep. Tr. 308:17-22 Q. Before we start, it looks like you have an Air Pod in your ear? A. Yeah. Q. Can you take it out for the deposition? A. Of course. Page 10 of 17 10 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 39. This revelation is shocking, outrageous, and devastating. As the Court knows, a deposition is the one chance for an attorney to lock in the opposing party’s testimony and attempt to gain a concession for use in summary judgment and/or trial. To learn that Ms. Stolper was apparently being fed answers during her deposition is staggering and unforgiveable. There is no excuse that can be made up for why Plaintiff and her attorney would be calling each other in the middle of deposition testimony, or why Plaintiff’s attorney would be calling her in the middle of a deposition. None. 40. At this point, Defendant has been irrevocably prejudiced, and it is respectfully submitted that nothing short of a dismissal of Plaintiff’s claims with prejudice, together with additional sanctions, such as attorney’s fees for the entire case, would be appropriate for Plaintiff’s and her counsel’s outrageous deposition conduct. 41. During the September 8 conference, the Court suggested that perhaps appropriate relief would be a deposition of Plaintiff’s attorney. However, respectfully, the oath of an attorney who is willing to contact his client during a deposition, outright lie about having contact with the client during the deposition, and then lie to the Court about any contact, means little. Plaintiff’s counsel will never admit the truth of what happened during the deposition, oath or not. Accordingly, it is respectfully submitted that this relief would be no relief at all. Only the ultimate sanction is appropriate for this shocking, egregious, sanctionable conduct. PLAINTIFF SHOULD BE HELD IN CIVIL AND CRIMINAL CONTEMPT 42. As set forth by the Court of Appeals: Under Judiciary Law § 753, "[a] court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right Page 11 of 17 11 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced" (Judiciary Law § 753 [A]; see generally People v Sweat, 24 NY3d 348, 353-354, 998 NYS2d 688, 23 NE3d 955 [2014] [discussing Judiciary Law § 753]). In Matter of McCormick v Axelrod (59 NY2d 574, 453 NE2d 508, 466 NYS2d 279 [1983]), this Court described the elements necessary to support a finding of civil contempt. First, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect" (id. at 583). Second, "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (id.). Third, "the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party" (id.). Fourth, "prejudice to the right of a party to the litigation must be demonstrated" (id.; see Karg v Kern, 125 AD3d 527, 528-529, 4 NYS3d 184 [1st Dept 2015] [ contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D. [Tarah F.], 119 AD3d 784, 784, 989 NYS2d 334 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538, 943 NYS2d 357 [4th Dept 2012] [order violated must be an unequivocal mandate]; Conners v Pallozzi, 241 AD2d 719, 719, 660 NYS2d 189 [3d Dept 1997] [ evidence proving with a reasonable certainty that a prior court order has been violated will support a finding of civil contempt]; N.A. Dev. Co. v Jones, 99 AD2d 238, 242, 472 NYS2d 363 [1st Dept 1984] [movant must establish a reasonable certainty]; Power Auth. of State of N.Y. v Moeller, 57 AD2d 380, 382, 395 NYS2d 497 [3d Dept 1977] [personal service is not necessary if the party has actual knowledge of the order], lv denied 42 NY2d 806 [1977]). El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 28-29, 19 N.Y.S.3d 475, 480-81, 41 N.E.3d 340, 345-46 (2015). 43. As further explained by the Court of Appeals: 3. Wilfulness is Not a Required Element of Civil Contempt Defendant argues that Supreme Court's finding of contempt is not supported by the record because the evidence failed to establish that he wilfully disobeyed the January 2010 order. According to defendant our case law establishes that wilful conduct is a necessary element of both civil and criminal contempt, and that what distinguishes the two is merely the level of a contemnor's wilfulness. Defendant's arguments are contradicted by statute as well as our prior holdings (McCormick, 59 NY2d at 583). Turning to the relevant statutory provision, nowhere in Judiciary Law § 753 (A) (3) is wilfulness explicitly set forth as an element of civil contempt (see also McCain Page 12 of 17 12 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 v Dinkins, 84 NY2d 216, 226, 639 NE2d 1132, 616 NYS2d 335 [1994]). Indeed the only mention of wilfulness for civil contempt is in section 753 (A) (1), which is not at issue in this case as it applies only to "[a]n attorney, counsellor, clerk, sheriff, coroner," or someone otherwise selected or appointed for judicial or ministerial service. In contrast, Judiciary Law § 750, the criminal contempt provision, permits a court to impose punishment for criminal contempt only for "[w]ilful disobedience to its lawful mandate" (Judiciary Law § 750 [A] [3]; see also Sweat, 24 NY3d at 353-354). This statutory language makes clear that where the legislature intended to require wilfulness, it knew how to do so, and any omission of such element is intentional (McKinney's Cons Laws of NY, Book 1, Statutes § 74; Pajak v Pajak, 56 NY2d 394, 397, 437 NE2d 1138, 452 NYS2d 381 [1982] [ "(t)he failure of the Legislature to include a matter within a particular statute is an indication that itsexclusion was intended"]). We are, of course, not at liberty to read into the statute what is not mandated by the legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 94; Lederer v Wise Shoe Co., 276 NY 459, 465, 12 NE2d 544 [1938] [ "(w)e do not by implication read into a clause of a rule or statute a limitation for which we find no sound reason and which would render the clause futile"]). El-Dehdan, 26 N.Y.3d at 33-34. 44. Accordingly, it is clear that Plaintiff must be held in both civil and criminal contempt. Here there was a clear and lawful mandate by the Court to Plaintiff to turn over the above- referenced documents. This Order has been clearly disobeyed. It is clear that Plaintiff was aware of the order, since she turned over certain documents. And, fourth, Defendant’s rights are clearly prejudiced, since these documents will form the basis for Defendant’s motion for summary judgment dismissing Plaintiff’s bad faith, false, frivolous, defamatory claims. 45. It is clear that Plaintiff must be held in contempt, as that will be the only method to make her understand that when the Court orders you to do something, you must comply. 46. Accordingly, it is respectfully requested that this Court find Plaintiff to be in both civil and criminal contempt, and that this Court impose the maximum sanctions upon Plaintiff, including both fine and imprisonment. 47. Additionally, it is respectfully requested that this Court order Plaintiff to pay Defendant’s costs and attorney’s fees in connection with this matter, with an affirmation of legal services to Page 13 of 17 13 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 be provided within ten days of the granting of the motion. See, e.g., Schwartz v. Schwartz, 79 A.D.3d 1006, 1010, 913 N.Y.S.2d 313, 317 (2nd Dep't 2010) (“Moreover, the Supreme Court should have granted that branch of the wife's motion which was for an award of attorney's fees. "Judiciary Law § 773 permits recovery of attorney's fees from the offending party by a party aggrieved by the contemptuous conduct". In this case, the attorney's fees incurred by the wife in connection with her motion determined by the November 2008 order, and in connection with her motion determined by the order appealed from, are directly related to the husband's contemptuous conduct.”) (internal citations omitted). PLAINTIFF SHOULD BE SANCTIONED 48. As discussed above, Plaintiff’s and her attorney’s conduct in this case has been shocking, egregious, willful, perjurious, and sanctionable. 49. Accordingly, it is respectfully submitted that the Court should award appropriate sanctions, including attorney’s fees, as allowed under this Court’s general authority under CPLR §3126 (including subdivisions (1), (2), and/or (3) as the Court deems appropriate), as well as pursuant to 22 NYCRR § 130-1.1. 50. Additionally, Plaintiff should be sanctioned under the Court’s “inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice.” CDR Créances S.A.S. v. Cohen, 23 N.Y.3d 307, 318, 991 N.Y.S.2d 519, 527, 15 N.E.3d 274, 282 (2014). 51. As explained by the Court of Appeals, “Characteristic of federal cases finding such fraud is a systematic and pervasive scheme, designed to undermine the judicial process and thwart the nonoffending party's efforts to assert a claim or defense by the offending party's repeated perjury Page 14 of 17 14 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 or falsification of evidence. Fraud on the court warrants heavy sanctions, including the striking of an offending party's pleadings and dismissal of the action…. The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard …” Id. at 319-20 (finding “no error in the Appellate Division’s order affirming the striking of defendants’ answers and entering a default judgment. The record reveals numerous instances of perjury, subornation of perjury, witness tampering and falsification of documents by defendants,” and collecting federal cases involving dismissal for perjury because “no sanction short of dismissal [would] suffice to deter future misconduct”). 52. It is respectfully submitted that it has been shown throughout this case, including Plaintiff’s refusal to turn over her settlement agreement with Mariah Carey only to seek to immediately withdraw her defamation claim once the Court ordered her to do so, and her false Jackson affidavit as discussed in the August 8 conference with the Court, that this case has been rife with perjury, subornation of perjury, tampering with deposition proceedings, and other bad faith conduct by Plaintiff designed to undermine the judicial process and thwart the nonoffending party's efforts to assert a claim or defense. Accordingly, it is respectfully submitted that no sanction short of dismissal would suffice to deter Plaintiff’s future misconduct, and that this Court should strike Plaintiff’s pleading and enter a default judgment against Plaintiff. WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court issue an order granting Defendant’s motion in its entirety, holding Plaintiff in civil and criminal contempt of court, awarding appropriate sanctions against Plaintiff including the striking of Page 15 of 17 15 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 Plaintiff’s pleading and a judgment against Plaintiff, an award of attorney’s fees, and ordering a forensic search of Plaintiff’s computers and cellphones; together with such other, further, and different relief as to the Court may seem just and proper. Dated: Fresh Meadows, New York September 15, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. Page 16 of 17 16 of 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 11:56 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 09/15/2022 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 September 15, 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 5,001 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 September 15, 2022 /Jonathan E. Neuman/