Preview
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X
STELLA STOLPER,
AFFIRMATION IN OPPOSITION
Plaintiff,
Motion Sequence No. 16
-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 opposition to
Plaintiff’s motion for an additional deposition of Defendant.
2. Plaintiff’s motion, full of hyperbole and inflammatory language but short on substance,
incoherently and insufficiently sets forth any basis for Plaintiff’s “arguments.”
3. The Court provided Plaintiff with a full and unfettered opportunity to serve additional
interrogatories to Defendant. Rather than take full use of this opportunity, Plaintiff lazily asked a
series of poor and general interrogatories, rather than the specific interrogatories that would have
addressed the issues of which Plaintiff now bemoans. It is not Defendant’s fault that Plaintiff
asked poor interrogatories and failed to obtain the information they now claim they need through
yet another a deposition. The simple fact is that the Plaintiff had a full opportunity to inquire but
failed to do so, and it is nobody’s fault but Plaintiff’s for its own failure.
4. This case involves two discreet sums of money that Plaintiff falsely claims were actually
hers, even though the documentary evidence has now proven that Plaintiff, under oath and under
Page 1 of 5
1 of 5
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022
penalty of perjury, said was not hers. Accordingly, none of the issues identified by Plaintiff have
any relevance or bearing on this case.
5. Plaintiff only identifies two substantive issues.1
6. First, Plaintiff seeks to inquire into Defendant’s financial dealings with Mariah Carey.
Plaintiff has no right to inquire into these matters. Defendant’s financial relationship with
Mariah Carey is not at issue in this case.
7. Moreover, with respect to Plaintiff’s allegations about potential commingling related to
these funds, the preamble (note 12) to the NY Rules of Professional Conduct, explicitly state that
“Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it
create any presumption in such a case that a legal duty has been breached.” This matches the
black letter law in the First Department, that “an allegation of legal malpractice based on a
violation of the disciplinary rules does not, without other allegations supporting the cause of
action , support a malpractice claim.” Drasche v. Edelman & Edelman, 201 A.D.3d 434, 435,
156 N.Y.S.3d 733, 734 (1st Dep’t 2022); accord Cohen v. Kachroo, 115 A.D.3d 512, 513, 981
N.Y.S.2d 711, 713 (1st Dep’t 2014) (“To the extent that plaintiff seeks to allege malpractice
based on a violation of the New York Rules of Professional Conduct, such an alleged violation
does not, without more, support a malpractice claim. Moreover, ‘[t]he violation of a disciplinary
rule does not, without more, generate a cause of action’.”) (internal citations omitted).
8. Accordingly, even if there was some showing of comingling of funds, which is not
conceded at all, such comingling would have nothing to do with Plaintiff’s claims in this case,
and so it would be irrelevant to Plaintiff’s actual claims, which relate to two discrete sums of
money, $125,000 of which Defendant already states went to her account, and $150,000 of which
1
In a footnote Plaintiff identifies what it asserts to be at best minor mix-ups about the dates of certain transactions.
Page 2 of 5
2 of 5
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022
Defendant already states went to Avi Shimroni’s account, the alleged gift donor (but in reality,
the sole owner of the money). Accordingly, there is no need for a second deposition, as none of
the Mariah Carey transactions are relevant to Plaintiff’s claims.
9. Second, Plaintiff seeks to inquire about $10,000 that Defendant borrowed from her
father-in-law with his permission from money that she was holding on his behalf. Once again,
this has no bearing on this case, as nobody disputes that the $150,000 was never transferred to
Plaintiff. The dispute is whether the money was Plaintiff’s as an alleged gift from Defendant’s
father-in-law (even though Plaintiff admits that she never spoke to him and knows nothing about
him), or whether it was Defendant’s father-in-law’s money. Accordingly, once again, inquiry
into this topic has no bearing and no relevance to Plaintiff’s claims whatsoever.
10. Moreover, as stated, Plaintiff had ample opportunity to ask interrogatories about this
transfer. Plaintiff was too lazy to do so, and should not now be rewarded for its own failures.
11. At the end of the day, we are nearly five years into this case. It is time for Plaintiff’s
ever-evolving claims to come to an end and for the parties to make their respective summary
judgment motions. If Plaintiff gets a second deposition of Defendant over these documents
because they were not turned over earlier, then Defendant should get a second deposition of
Plaintiff over the documents that she failed to turn over until recently ordered to do so by the
Court. The same way that Plaintiff claims that she was prejudiced by her inability to question
Defendant about these irrelevant transactions, Defendant was certainly prejudiced by her
inability to question Plaintiff about the much more relevant documents that Plaintiff withheld, in
which Plaintiff admitted under oath and penalty of perjury that the money at issue in this case
was not hers (through her omissions of any reference to such money).
Page 3 of 5
3 of 5
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022
12. However, as stated, neither party should get a second deposition, because it is time for
discovery to finally be concluded and for this case to move forward. Plaintiff’s “issues” are
completely irrelevant to her claims, and are simply Plaintiff’s attempt to continue to try to
frighten Defendant into settling because of Plaintiff’s repeated insinuations (and at times overt
statements) that they are going to try to get Defendant in trouble with the Bar and threaten her
license. Plaintiff’s and her attorney’s tactics in doing so are despicable, and this Court should no
longer countenance this bad faith extortion of Defendant. It is time for summary judgment
motions, so that Plaintiff’s malicious and false claims can finally be disposed of, and Plaintiff’s
falsehoods exposed for the lies that they are. Plaintiff’s counsel, who have engaged in their own
questionable conduct in this case as previously addressed with the Court, should be ashamed of
their behavior, and Plaintiff’s motion should be categorically denied in its entirety.2
WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court
issue an order denying 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
November 10, 2022
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
22
Should the Court grant Plaintiff any second deposition, however, it is respectfully submitted that the Court place
very tight and strict limitations on any such deposition, and that the deposition be extremely limited to specific
questions. Plaintiff should not now be entitled to a second bite at the apple after Plaintiff already spent nearly 20
hours on depositions of Defendant and her family members, and discovery was already supposed to have been
completed months ago.
Page 4 of 5
4 of 5
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022
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
November 10, 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 1,168 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
November 10, 2022
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
Page 5 of 5
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X STELLA STOLPER, AFFIRMATION IN OPPOSITION Plaintiff, Motion Sequence No. 16 -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 opposition to Plaintiff’s motion for an additional deposition of Defendant. 2. Plaintiff’s motion, full of hyperbole and inflammatory language but short on substance, incoherently and insufficiently sets forth any basis for Plaintiff’s “arguments.” 3. The Court provided Plaintiff with a full and unfettered opportunity to serve additional interrogatories to Defendant. Rather than take full use of this opportunity, Plaintiff lazily asked a series of poor and general interrogatories, rather than the specific interrogatories that would have addressed the issues of which Plaintiff now bemoans. It is not Defendant’s fault that Plaintiff asked poor interrogatories and failed to obtain the information they now claim they need through yet another a deposition. The simple fact is that the Plaintiff had a full opportunity to inquire but failed to do so, and it is nobody’s fault but Plaintiff’s for its own failure. 4. This case involves two discreet sums of money that Plaintiff falsely claims were actually hers, even though the documentary evidence has now proven that Plaintiff, under oath and under Page 1 of 5 1 of 5 FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022 penalty of perjury, said was not hers. Accordingly, none of the issues identified by Plaintiff have any relevance or bearing on this case. 5. Plaintiff only identifies two substantive issues.1 6. First, Plaintiff seeks to inquire into Defendant’s financial dealings with Mariah Carey. Plaintiff has no right to inquire into these matters. Defendant’s financial relationship with Mariah Carey is not at issue in this case. 7. Moreover, with respect to Plaintiff’s allegations about potential commingling related to these funds, the preamble (note 12) to the NY Rules of Professional Conduct, explicitly state that “Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” This matches the black letter law in the First Department, that “an allegation of legal malpractice based on a violation of the disciplinary rules does not, without other allegations supporting the cause of action , support a malpractice claim.” Drasche v. Edelman & Edelman, 201 A.D.3d 434, 435, 156 N.Y.S.3d 733, 734 (1st Dep’t 2022); accord Cohen v. Kachroo, 115 A.D.3d 512, 513, 981 N.Y.S.2d 711, 713 (1st Dep’t 2014) (“To the extent that plaintiff seeks to allege malpractice based on a violation of the New York Rules of Professional Conduct, such an alleged violation does not, without more, support a malpractice claim. Moreover, ‘[t]he violation of a disciplinary rule does not, without more, generate a cause of action’.”) (internal citations omitted). 8. Accordingly, even if there was some showing of comingling of funds, which is not conceded at all, such comingling would have nothing to do with Plaintiff’s claims in this case, and so it would be irrelevant to Plaintiff’s actual claims, which relate to two discrete sums of money, $125,000 of which Defendant already states went to her account, and $150,000 of which 1 In a footnote Plaintiff identifies what it asserts to be at best minor mix-ups about the dates of certain transactions. Page 2 of 5 2 of 5 FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022 Defendant already states went to Avi Shimroni’s account, the alleged gift donor (but in reality, the sole owner of the money). Accordingly, there is no need for a second deposition, as none of the Mariah Carey transactions are relevant to Plaintiff’s claims. 9. Second, Plaintiff seeks to inquire about $10,000 that Defendant borrowed from her father-in-law with his permission from money that she was holding on his behalf. Once again, this has no bearing on this case, as nobody disputes that the $150,000 was never transferred to Plaintiff. The dispute is whether the money was Plaintiff’s as an alleged gift from Defendant’s father-in-law (even though Plaintiff admits that she never spoke to him and knows nothing about him), or whether it was Defendant’s father-in-law’s money. Accordingly, once again, inquiry into this topic has no bearing and no relevance to Plaintiff’s claims whatsoever. 10. Moreover, as stated, Plaintiff had ample opportunity to ask interrogatories about this transfer. Plaintiff was too lazy to do so, and should not now be rewarded for its own failures. 11. At the end of the day, we are nearly five years into this case. It is time for Plaintiff’s ever-evolving claims to come to an end and for the parties to make their respective summary judgment motions. If Plaintiff gets a second deposition of Defendant over these documents because they were not turned over earlier, then Defendant should get a second deposition of Plaintiff over the documents that she failed to turn over until recently ordered to do so by the Court. The same way that Plaintiff claims that she was prejudiced by her inability to question Defendant about these irrelevant transactions, Defendant was certainly prejudiced by her inability to question Plaintiff about the much more relevant documents that Plaintiff withheld, in which Plaintiff admitted under oath and penalty of perjury that the money at issue in this case was not hers (through her omissions of any reference to such money). Page 3 of 5 3 of 5 FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022 12. However, as stated, neither party should get a second deposition, because it is time for discovery to finally be concluded and for this case to move forward. Plaintiff’s “issues” are completely irrelevant to her claims, and are simply Plaintiff’s attempt to continue to try to frighten Defendant into settling because of Plaintiff’s repeated insinuations (and at times overt statements) that they are going to try to get Defendant in trouble with the Bar and threaten her license. Plaintiff’s and her attorney’s tactics in doing so are despicable, and this Court should no longer countenance this bad faith extortion of Defendant. It is time for summary judgment motions, so that Plaintiff’s malicious and false claims can finally be disposed of, and Plaintiff’s falsehoods exposed for the lies that they are. Plaintiff’s counsel, who have engaged in their own questionable conduct in this case as previously addressed with the Court, should be ashamed of their behavior, and Plaintiff’s motion should be categorically denied in its entirety.2 WHEREFORE, for all of the foregoing reasons, it is respectfully prayed that the Court issue an order denying 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 November 10, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. 22 Should the Court grant Plaintiff any second deposition, however, it is respectfully submitted that the Court place very tight and strict limitations on any such deposition, and that the deposition be extremely limited to specific questions. Plaintiff should not now be entitled to a second bite at the apple after Plaintiff already spent nearly 20 hours on depositions of Defendant and her family members, and discovery was already supposed to have been completed months ago. Page 4 of 5 4 of 5 FILED: NEW YORK COUNTY CLERK 11/10/2022 10:17 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 11/10/2022 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 November 10, 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 1,168 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 November 10, 2022 /Jonathan E. Neuman/ JONATHAN E. NEUMAN, ESQ. Page 5 of 5 5 of 5