Preview
FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022
SUPREME COURT OF THE STATE OF NEW YORK Return Date: 07/15/2022
COUNTY OF NASSAU Hon. Erica L. Prager
-------------------------------------------------------------------------x Index No. 001052/2019
JAMES MORAN,
Plaintiff,
-against-
GRAND SLAM VENTURES, LLC, JON STEINBERG,
GLENN A. REINER, JG REAL ESTATE VENTURES,
LLC, and "JOHN DOES" # 1-10 inclusive, the last ten
names being fictitious and unknown to plaintiff,
Defendants.
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PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR LEAVE TO REARGUE AND RENEW
James Moran
Plaintiff pro se
28 Carrie Avenue
Bethpage, New York 11714
Tel: (516) 302-6581
Email: iiin.catlawl@gmail.com
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
THE NATURE OF THIS ACTION ................................................................................................ 1
PROCEDURAL HISTORY AND STATEMENT OF FACTS ....................................................... 1
PLAINTIFF'S INSTANT MOTION ............................................................................................... !
PRELIMINARY STATEMENT ..................................................................................................... 1
PRELIMINARY ARGUMENT ....................................................................................................... 2
POINT I: PLAINTIFF'S MOTION FOR LEAVE TO REARGUE AND RENEW ....................... 3
A. LEA VE TO REARGUE .......................................................................................... 3
1) PROCEDURAL GROUNDS ....................................................................... 4
2) PLAINTIFF'S DOCUMENT DEMANDS .................................................. 7
3) PLAINTIFF'S INTERROGATORIES ...................................................... 16
B. LEAVE TO RENEW ............................................................................................. 20
CONCLUSION .............................................................................................................................. 22
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TABLE OF AUTHORITIES
Page(s)
Cases:
Aaron v McIntyre,
15 AD3d 475,476, 790 N.Y.S.2d 187 (2d Dept., 2005) .......................................................... .10
Active Fire Sprinkler Corp. v. Am. Home Assurance Co.,
203 A.D.2d 218,218,609 N.Y.S.2d 663,664 (2d Dept., 1994) ................................................ 12
Allen v. Crowell-Collier Publ'g Co.,
21 N.Y.2d 403,406,288 N.Y.S.2d 449,452,235 N.E.2d 430,432 (N.Y., 1968) ...................... .2
A&M Glob. Mgmt. Corp. v. Northtown Urology Assocs., P.C.,
115 A.D.3d 1283, 1288, 983 N.Y.S.2d 368,375 (4 th Dept., 2014) ............................................ 19
Am. Panel Tee v. Hyrise, Inc.,
31 A.D.3d 586, 587, 819 N.Y.S.2d 768, 769 (2d Dept., 2006) .................................................... 9
Aridas v. Caserta,
41 N.Y.2d 1059, 1061, 364 N.E.2d 835,836,396 N.Y.S.2d 170, 172 (N.Y., 1977) ................... 2
Borgia v. Rothberg,
148 A.D.3d 1109, 1110, 50 N.Y.S.3d 452,454 (2d Dept., 2017) ................................................ 2
Cheek v. Brooks,
188 A.D.3d 785, 786, 135 N.Y.S.3d 478,480 (2d Dept., 2020) ......................................... .14, 19
Coccia v. Liotti,
70 A.D.3d 747, 752, 896 N.Y.S.2d 90, 96 (2d Dept., 2010) ..................................................... .20
Cooper v. Drobenko Bros. Realty, Inc.,
200 A.D.2d 415,415, 606 N.Y.S.2d 213,214 (1 st Dept., 1994) .................................................. 5
D .A. Bennett LLC v. Cartz,
113 A.D.3d 945, 948, 979 N.Y.S.2d 179, 183 (3d Dept., 2014) .......................................... 11-12
David Leinoff, Inc. v. 208 W. 29th St. Assocs.,
243 A.D.2d 418,663 N.Y.S.2d 554 (1 st Dept., 1997) ................................................................. 12
DiMichd v. S. Buffa.lo Ry. Co.,
80 N.Y.2d 184,193,590 N.Y.S.2d 1, 4,604 N.E.2d 63, 66 (N.Y., 1992) ................................... 2
Dore v. Allstate Indem. Co.,
264 A.D.2d 804,804,695 N.Y.S.2d 422,423 (2d Dept. 1999) ........................................... 12-13
11
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Evangelista v. VLS Enters. Corp.,
274 A.D.2d 317, 317, 711 N.Y.S.2d 724, 724 (1 st Dept., 2000) ................................................ 12
F. A. J. Co. v. Emenee Corp.,
55 A.D.2d 925, 926, 390 N.Y.S.2d 634 (2d Dept., 1977) ............................................................ 6
Fanelli v. Fanelli,
296 A.D.2d 373, 745 N.Y.S.2d 435 (2d Dept., 2002) ................................................................. .4
Four Aces Jewelry Corp. v. Smith,
256 A.D.2d 42, 43,680 N.Y.S.2d 539,540 (1 st Dept., 1998) .................................................... 13
George v. Victoria Albi, Inc.,
148 A.D.3d 1119, 1119, 50 N.Y.S.3d 466, 467-68 (2d Dept., 2017) ......................................... 10
Giarguaro S.p.A. v. Amko Int'l Trading, Inc.,
300 A.D.2d 349,350, 751 N.Y.S.2d 772, 773 (2d Dept., 2002) ................................................ 10
Holme v. Glob. Minerals & Metals Corp.,
90 A.D.3d 423, 423-24, 934 N.Y.S.2d 30, 31 (1 st Dept., 2011) ................................................. 12
Hunt v. Odd Job Trading,
44 A.D.3d 714, 715-16, 843 N.Y.S.2d 423,425 (2d Dept., 2007) ............................................... 5
Itzkowitz v. King Kullen Grocery Co., Inc.,
22 A.D.3d 636,638, 804 N.Y.S.2d 350,351 (2d Dept. 2005) ..................................................... 1
Joslin v. Lopez,
309 A.D.2d 837, 839, 765 N.Y.S.2d 895 (2d Dept., 2003) ........................................................ 15
Kamerman v. Kolt,
187 A.D.2d 564, 564, 591 N.Y.S.2d 332, 332 (2d Dept., 1992) .................................................. 5
Kessel v. Dodd,
46 A.D.2d 645, 646, 359 N.Y.S.2d 594, 597 (2d Dept., 1974) .................................................... 8
Leon Sylvester, Inc. v. Aetna Cas. & Sur. Co.,
189 A.D.2d 730,592 N.Y.S.2d 741 (1 st Dept., 1993) ................................................................. 12
Lubell v Work Wear Corp.,
82 Mi:sc 2d 1000, 1002, 371 N.Y.S.2d 341 [Civil Court, Quccn;s County 1975]
affd 86 Misc. 2d 1001, 384 N.Y.S.2d 993
(App Term, 2d Dept, 2d & 11 to Jud Dists 1976)....................................................................... 16
Matter of Agai v. Diontech Consulting, Inc.,
138 A.D.3d 736, 737, 29 N.Y.S.3d 441,442 (2d Dept., 2016) ...................................... 10, 11, 18
111
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Medaris v. Vosburgh,
93 A.D.2d 882,882,461 N.Y.S.2d 415,416 (2d Dept., 1983) ................................................. .16
Mega Pers. Lines, Inc. v. Halton,
9 A.D.3d 553, 555, 780 N.Y.S.2d 409,411 (3d Dept., 2004) ................................................ 8, 17
Millennium Constr., LLC v. Loupolover,
44 A.D.3d 1016, 1016-17, 845 N.Y.S.2d 110, 111 (2d Dept., 2007) ......................................... 11
Montalvo v. CVS Pharmacy, Inc.,
81 A.D.3d 611, 612, 915 N.Y.S.2d 865, 866 (2d Dept., 2011) ................................................... .2
Nat'l Mtge. Consultants v. Elizaitis,
23 A.D.3d 630, 630, 804 N.Y.S.2d 799, 800 (2d Dept., 2005) .................................................... 2
New Line Stone Co., Inc. v. BCRE Servs. LLC,
89 A.D.3d 581,581,932 N.Y.S.2d 690,691 (1 st Dept., 2011) .................................................. 19
Palmerone v. Staples,
195 A.D.3d 736, 737-38, 150 N.Y.S.3d 723, 725-26 (2d Dept., 2021) ............................... .14, 19
Pen Pak Corp. v. LaSalle Nat'l Bank,
240 A.D.2d 384,386,658 N.Y.S.2d 407,408 (2d Dept., 1997) ................................................ 13
Peretz v. Zhenjun Xu,
2022 NY Slip Op 03017, 12 (2d Dept., 2022) ............................................................................. 3
Perez v. Stonehill,
121 A.D.3d 960, 961, 993 N.Y.S.2d 920, 920 (2d Dept., 2014) ................................................. .4
Recine v. City ofN.Y.,
156 A.D.3d 836, 836, 65 N.Y.S.3d 788, 788 (2d Dept., 2017) .................................................... 5
Sorto v. S. Nassau Cmty. Hosp.,
273 A.D.2d 373,374, 710 N.Y.S.2d 910 (2d Dept., 2000) ........................................................ 20
SR Holding I, LLC v. Cannavo,
2021 NY Slip Op 32984(U), ,-r 13 (Sup. Ct.) ............................................................................. .19
United States v. Bonanno Organized Crime Family of La Cosa Nostra,
119 I'.R.D. 625,627 (E.D.N.Y. 1988) ........................................................................................ l 1
lV
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Statutes & Other Authorities:
CPLR §2221(d) ............................................................................................................................. 3
CPLR §2221(e) ........................................................................................................................... 20
CPLR §2221 (f) ..........................................................................................................................1, 3
CPLR §3101 .................................................................................................................................. 4
CPLR §3101(a) ............................................................................................................................. 2
CPLR §3103 .................................................................................................................................. 5
CPLR §3120 .................................................................................................................................. 5
CPLR §3122(a)(l) ................................................................................................................ 4, 5, 6
CPLR §3126 ................................................................................................................................. 5
CPLR §3131 ............................................................................................................................... 16
CPLR 3133(a) ....................................................................................................................... 4, 5, 6
DCL §270 ............................................................................................................................... 9, 14
DCL §271 ............................................................................................................................... 9, 14
DCL §272 ................................................................................................................................... 19
DCL §272(a) ............................................................................................................................... 16
DCL §273 ..................................................................................................................................... 9
DCL §275 ..................................................................................................................................... 9
DCL §276 ................................................................................................................................... 19
22 NYCRR 202. 7 .......................................................................................................................... 4
V
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THE NATURE OF THIS ACTION
This is an action brought under former Debtor and Creditor Law article 10 for the fraudulent
conveyance of real property commonly known as 219 Hempstead Turnpike, West Hempstead,
New York 11552 (the subject "Property") from Defendant Grand Slam Ventures, LLC to
Defendant JG Real Estate Ventures, LLC, which occurred on September 26, 2013, and to pierce
the corporate veils. (See, Exhibit "2" sub Exhibit "l ")
PROCEDURAL HISTORY AND STATEMENT OF FACTS
The relevant background facts and procedural history of this action and the prior action are
set forth in the affidavit of James Moran ("Plaintiff' and/or "Moran") sworn to February 11,
2020 (See, Exhibit "2") and Moran's affidavit submitted herewith, sworn to June 15, 2022. 1
PLAINTIFF'S INSTANT MOTION
Plaintiff's instant motion seeks an Order, pursuant to CPLR §2221(f), granting Plaintiff leave
to reargue and renew the Order of this Court [Sullivan, J.] dated August 30, 2021; and/or for such
other, further and different relief as this Honorable Court may deem just, proper and equitable.
PRELIMINARY STATEMENT
Plaintiff filed a Notice of Appeal on September 22, 2021 from this Court's Order dated
August 30, 2021 (See, Exhibit "1 ") and the appeal is currently due to be perfected by June 21,
2022 (M283142) and, as such, this Court's consideration of the instant motion is an appropriate
exercise of discretion. See, Itzkowitz v. King Kullen Grocery Co., Inc., 22 A.D.3d 636, 638, 804
N.Y.S.2d 350,351 (2d Dept. 2005) ["The Supreme Court had jurisdiction to reconsider its prior
order 'regardless of statutory time limits concerning motions to reargue'"]
1 References herein to "Exhibit" are those annexed by reference to the affidavit of James Moran sworn to June 15,
2022.
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Moreover, as pointed out by the Court of Appeals, "[e]very court retains a continuing
jurisdiction generally to reconsider any prior intermediate determination it has made" Quoting,
Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 364 N.E.2d 835, 836, 396 N.Y.S.2d 170, 172 (N.Y.,
1977) see also, Nat'l Mtge. Consultants v. Elizaitis, 23 A.D.3d 630, 630, 804 N.Y.S.2d 799, 800
(2d Dept., 2005) ["Indeed, a court may review a previously-decided matter where there is a need
to correct clear error"]
PRELIMINARY ARGUMENT
CPLR §3 lOl(a) provides for disclosure of "all matter material and necessary in the
prosecution or defense of an action, regardless of the burden of proof' and the words, "material
and necessary", are to be interpreted liberally to require disclosure, upon request, of any facts
bearing on the controversy which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity. See, Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403, 406, 288
N.Y.S.2d 449, 452, 235 N.E.2d 430, 432 (N.Y., 1968) ["If there is any possibility that the
information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for
cross-examination, it should be considered evidence material in the prosecution or defense"]
"New York has long favored open and far-reaching pretrial discovery" Quoting, DiMichel v.
S. Buffalo Ry. Co., 80 N.Y.2d 184, 193, 590 N.Y.S.2d 1, 4, 604 N.E.2d 63, 66 (N.Y., 1992) and
pretrial disclosure extends not only to proof that is admissible, but also to matters that may lead
to the disclosure of admissible proof See, Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612,
915 N.Y.S.2d 865, 866 (2d Dept., 2011) and the party seeking to preclude discovery has the
burden of proving that the material :sought i:s not di:scoverable. See generally, Borgia v. Rothberg,
148 A.D.3d 1109, 1110, 50 N.Y.S.3d 452, 454 (2d Dept., 2017) ["the defendant had the burden
of proving that the Alcon documents were not discoverable"]
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POINT I
PLAINTIFF'S MOTION FOR LEAVE TO REARGUE AND RENEW
CPLR §2221(f) provides: "A combined motion for leave to reargue and leave to renew shall
identify separately and support separately each item of relief sought. The court, in determining a
combined motion for leave to reargue and leave to renew, shall decide each part of the motion as
if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court
may adhere to the determination on the original motion or may alter that determination."
A. LEAVE TO REARGUE
CPLR §2221(d) provides: [a] motion for leave to reargue:
l. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the
court in determining the prior motion, but shall not include any matters of fact not offered on the
prior motion; and
3. shall be made within thirty days after service of a copy of the order determining the prior
motion and written notice of its entry. This rule shall not apply to motions to reargue a decision
made by the appellate division or the court of appeals.
It is well settled, a motion to reargue is designed to afford a party an opportunity to establish
that the Court overlooked or misapprehended the relevant facts, or misapplied a controlling
principle of law or for some reason mistakenly arrived at its earlier decision. See generally,
Peretz v. Zhenjun Xu, 2022 NY Slip Op 03017, if 2 (2d Dept., 2022)
It is respectfully submitted; the Court [Sullivan, J.], in determining the parties prior motions,
overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law or
for some reason mistakenly arrived at its earlier decision.
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1) PROCEDURAL GROUNDS
It is respectfully submitted; in granting Defendants a protective order the Court overlooked
that Defendants' Counsel failed to set forth an affirmation demonstrating that a good faith effort
was made to resolve the issues, 22 NYCRR 202.7. (See, Exhibit "3")
The Appellate Division, Second Department, has held that it is proper to deny a motion
seeking a protective order on procedural grounds when there is a failure to provide the required
affirmation demonstrating a good faith effort was made to resolve the disclosure dispute. See,
Perez v. Stonehill, 121 A.D.3d 960, 961, 993 N.Y.S.2d 920, 920 (2d Dept., 2014) ["The
defendants' failure to submit an affirmation of the parties' good faith effort to resolve the
disclosure dispute pursuant to 22 NYCRR 202.7 (a) (2) in connection with their motion required
the denial of the motion"]; Fanelli v. Fanelli, 296 A.D.2d 373, 745 N.Y.S.2d 435 (2d Dept.,
2002) ["The Supreme Court properly denied, on both procedural and substantive grounds, the
plaintiff's motion to quash the subpoena duces tecum and for a protective order."]
It is respectfully submitted, in granting Defendants a protective order the Court also
overlooked that Defendants failed to make a timely challenge to Plaintiff's discovery demands
pursuant to CPLR §3122(a)(l) and CPLR §3133(a) which forecloses inquiry into the propriety of
the information sought except with regard to material that is privileged pursuant to CPLR §3101
or requests that are palpably improper.
On December 6, 2019 Defendants were served with Plaintiff's discovery demands (See,
Exhibit "2" sub Exhibit "5") and according to the PC Order entered on December 17, 2019
Defendill:lts vvere required to respond to Plaintiff's demlll:lds by Jlll:luttry 17, 2020 (See, Exhibit
"2" sub Exhibit "8")
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Defendants refused to respond to Plaintiffs discovery demands and only after Plaintiff
brought a motion seeking an Order, pursuant to CPLR §3126, striking Defendants' Verified
Answer and/or precluding Defendants from introducing, on motion and/or at trial, any evidence
not produced for their failure to do so (See, Exhibit "2") did Defendants cross-move for a
protective order, on or about February 20, 2020. (See, Exhibit "3")
While a motion for a protective order pursuant to CPLR § 3103 can be generally made at any
time, a motion for a protective order with respect to any discovery demands made pursuant to
CPLR §3120 must be made within the time provided for by CPLR §3122(a)(l) and a failure to
adhere to the mandates of CPLR §3122(a)(l) constitutes a waiver and bars the movants from
obtaining a protective order. See, Recine v. City ofN.Y., 156 A.D.3d 836, 836, 65 N.Y.S.3d 788,
788 (2d Dept., 2017) ["[a]defendant's failure to make a timely challenge to a plaintiffs
document demand pursuant to CPLR 3122(a)(l) forecloses inquiry into the propriety of the
information sought except with regard to material that is privileged pursuant to CPLR 3101 or
requests that are palpably improper"]; Hunt v. Odd Job Trading. 44 A.D.3d 714, 715-16, 843
N.Y.S.2d 423, 425 (2d Dept., 2007)
With regards to Plaintiffs First Set of Interrogatories to Defendants, Defendants failure to
adhere to the mandates of CPLR §3133(a) likewise constitutes a waiver and bars the movants
from obtaining a protective order. See, Kamerman v. Kolt, 187 A.D.2d 564, 564, 591 N.Y.S.2d
332, 332 (2d Dept., 1992) [" ... the defendants' respective motions for protective orders were
untimely (see, CPLR 3133 [a])"]; Cooper v. Drobenko Bros. Realty, Inc., 200 A.D.2d 415, 415,
606 N.Y.S.2d 213, 214 (1 st Dept., 1994) ["Defendant:,' cro:,:, motion for u protective order wu:,
properly denied for the reason that they waived any right to such relief by failing to timely
challenge the interrogatories in question (CPLR 3133 [a])"]
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Accordingly, Defendants waived objection based on any ground other than privilege or that
the demands are palpably improper.
Here, "[s]ince the materials sought do not fall within CPLR 3101 (subds [b], [c], [d]), ...
defendant waived its right to object by failing to move for a protective order within the time
provided for by CPLR 3122" Quoting, F. A. J. Co. v. Emenee Corp., 55 A.D.2d 925, 926, 390
N.Y.S.2d 634 (2d Dept., 1977)
The Court's Order did not even mention CPLR §3122(a)(l) or CPLR §3133(a) or address the
timeliness of Defendants' cross-motion and, as demonstrated below, Plaintiffs demands are not
palpably improper. (See, Exhibit "1 ")
The Court [Sullivan, J.] also seemed to misapprehend the facts by stating as follows:
"While the record before the Court indicates that Defendants' response is
overdue, with a preliminary conference stipulation and order having been
completed only two (2) weeks after these discovery demands were served upon
Defendants and with Plaintiff filing the instant order to show cause prior to any
compliance conference having taken place," (See, Exhibit "1 ")
It appears the Court [Sullivan, J.] overlooked the fact that Defendants were served with
Plaintiffs discovery demands on December 6, 2019 (See, Exhibit "2" sub Exhibit "5") and that
according to the PC Order entered on December 17, 2019 Defendants were required to respond
to Plaintiffs demands by January 17, 2020 (See, Exhibit "2" sub Exhibit "8") and after their time
expired a conference was in fact held before the Court [Libert, J.] on January 24, 2020 and an
Order was entered directing that responses to discovery demands be served by February 3, 2020.
(See, Exhibit "2" sub Exhibit "9" and Exhibit "6" sub Exhibit "20")
It is respectfully submitted, Defendants' cross-motion seeking a protective order should have
been denied on the above procedural grounds alone.
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2) PLAINTIFF'S DOCUMENT DEMANDS
The Court's Order in essence struck Plaintiffs document demands 2-4, 7, 9-17, 19-21, 24,
26-42, 44-46 and 48-50. (See, Exhibits "1" and "2" sub Exhibit "6")
Plaintiffs document demands 2, 3, 4, 19, 20 and 21 sought documents related to and/or
evincing the names of managers and members of Defendant Grand Slam and Defendant JG Real
Estate and their respective contributions and share of profits and losses. (See, Exhibit "2" sub
Exhibit "6")
Plaintiffs document demands 35, 36, 39 and 40 sought documents related specifically to
Defendant Steinberg's and Defendant Reiner's contribution and share of profits related to
Defendant Grand Slam and Defendant JG Real Estate. (See, Exhibit "2" sub Exhibit "6")
According to limited banking records produced in the supplementary proceedings, Defendant
Reiner is listed as a "Signer" on a bank account Defendant Grand Slam maintained at Chase Bank
(See, Exhibit "6" sub Exhibit "24") and he executed an Assignment of Contracts, Licenses and
Permits on March 6, 2008 as Manager of Defendant Grand Slam Ventures. (See, Exhibit "6" sub
Exhibit "25" - Page 7)
Defendant Steinberg testified at his examination before trial in the prior action with uncertainty
as to whether Defendant Reiner (Glen) was/is a member of Defendant Grand Slam.
Q. Are you a member of Grand Slam Ventures, LLC?
A. Yes.
Q. Who are the other members of that LLC, Grand Slam Ventures?
A. I don't remember. It might be Glen. I'm not sure. To the best of my
knowledge, it's just mysdf.
(See, Exhibit "6" sub Exhibit "21" at page 8 lines 15-22)
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Defendant Steinberg, nevertheless, testified during the inquest to determine Plaintiffs
damages in the prior action that Defendant Reiner ran Defendant Grand Slam (See, Exhibit "6"
sub Exhibit "23" at page 31 lines 16-25) and directed him to transfer the subject Property from
Defendant Grand Slam to Defendant JG Real Estate and claims he doesn't know why. (See,
Exhibit "6" sub Exhibit "23" at pages 27-28 lines 22-25 and 1-3)
It should be noted, "[t]he doctrine of de facto officers is of ancient origin and applies to
private as well as public officers." Quoting, Kessel v. Dodd, 46 A.D.2d 645, 646, 359 N.Y.S.2d
594,597 (2d Dept., 1974) (citations omitted)
The names of managers and members of the corporate Defendants and their respective
contributions and share of profits and losses are relevant to ownership and control of the
transferor Defendant Grand Slam and the transferee Defendant JG Real Estate inasmuch as the
transfer of corporate assets to an insider, either directly to the insider or to an entity controlled by
the insider, establishes a lack of good faith as a matter of law. See, Mega Pers. Lines, Inc. v.
Halton, 9 A.D.3d 553, 555, 780 N.Y.S.2d 409,411 (3d Dept., 2004) [" ... we agree with Supreme
Court's premise that the transfer of corporate assets to an insider establishes a lack of good faith
as a matter of law ... "]
Accordingly, Plaintiffs document demands numbered 2, 3, 4, 19, 20, 21, 35, 36, 39 and 40
seeking documents related to and/or evincing the names of managers and members of the
corporate Defendants and their respective contributions and share of profits and losses are not
palpably improper. (See, Exhibit "2" sub Exhibit "6")
It is respectfully submitted; the Court mistakenly granted Defendants a protective order with
regards to Plaintiffs document demands numbered 2, 3, 4, 19, 20, 21, 35, 36, 39 and 40. (See,
Exhibit "1 ")
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Plaintiffs document demands numbered 8, 9, 10, 11, 25, 26, 27 and 28 sought the production
of banking records, accounting books and records, the assets of Defendant Grand Slam and
Defendant JG Real Estate and their respective tax returns. (See, Exhibit "2" sub Exhibit "6")
Plaintiffs document demands numbered 13, 14, 30 and 31 sought the production of
documents related to any loan agreements to which Defendant Grand Slam and/or Defendant JG
Real Estate were a party, either as the lender or the borrower. (See, Exhibit "2" sub Exhibit "6")
While the Court directed Defendants to respond to Plaintiff's demands numbered 8 and 25
(banking records) accounting books and records, the assets of Defendant Grand Slam and
Defendant JG Real Estate, their respective tax returns and any loan agreements are material and
necessary in the prosecution or defense of this action brought under former DCL.
Former DCL §271, Insolvency, provided in relevant part as follows: 1. "A person is insolvent
when the present fair salable value of his assets is less than the amount that will be required to
pay his probable liability on his existing debts as they become absolute and matured."
Former DCL §270 provided: "In this article 'assets' of a debtor means property not exempt
from liability for his debts. To the extent that any property is liable for any debts of the debtor,
such property shall be included in his assets." and "Debt" includes any legal liability, whether
matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.
Plaintiffs document demands numbered 9, 10, 11, 13, 14, 26, 27, 28, 30 and 31 sought
documents relevant to, inter alia, Defendant Grand Slam's solvency which is a material element
in a fraudulent transfer case under DCL §273 and DCL §275. See, DCL §271; Am. Panel Tee v.
Hyrise, Inc., 31 A.D.3d 586, 587, 819 N.Y.S.2d 768, 769 (2d Dept., 2006) [«A finding of
constructive fraud pursuant to section 273 may thus be predicated upon proof of insolvency and
lack of fair consideration, without a showing of actual motive or intent to defraud"]
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In addition, money judgments have been entered against Defendant Grand Slam and tax
returns are relevant and discoverable to aid in the satisfaction of the judgments. (See, Exhibit "2"
sub Exhibit "13")
Accordingly, Plaintiff, a judgment creditor, is entitled to discovery from Defendant Grand
Slam, the judgment debtor, or a third party to determine whether Defendant Grand Slam
concealed any assets or transferred any assets so as to defraud Plaintiff or improperly prevented
the collection of the judgments. See, George v. Victoria Albi, Inc., 148 A.D.3d 1119, 1119, 50
N.Y.S.3d 466, 467-68 (2d Dept., 2017); Aaron v McIntyre, 15 AD3d 475, 476, 790 N.Y.S.2d
187 (2d Dept., 2005) [holding discoverable the tax returns of judgment debtor's wife's business
when debtor might have used the business to conceal income and assets]
Further, Plaintiffs Verified Complaint seeks to pierce the corporate veils (See, Exhibit "2"
sub Exhibit "l ") and thus whether corporate funds were being commingled and/or whether funds
are put in and taken out of the corporate accounts for personal rather than corporate purposes are
factors to be considered in this action. See, Matter of Agai v. Diontech Consulting, Inc., 138
A.D.3d 736, 737, 29 N.Y.S.3d 441, 442 (2d Dept., 2016) [Personal use of corporate funds is one
of the factors to be considered in piercing the corporate veil]
Accordingly, Plaintiff's document demands seeking accounting books and records, the assets
of Defendant Grand Slam and Defendant JG Real Estate, their respective tax returns and any
loan agreements to which they were a party are not palpably improper. See, DCL §270; DCL
§271; Giarguaro S.p.A. v. Amko Int'l Trading, Inc., 300 A.D.2d 349, 350, 751 N.Y.S.2d 772,
773 (2d Dept., 2002) [di:scovcry wu:s nece:s:sury in order to ullow pluintiff:s to u:scertuin whether
there were sufficient grounds to pierce the corporate veil]
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It is respectfully submitted; the Court mistakenly granted Defendants a protective order with
regards to Plaintiff's document demands numbered 9, 10, 11, 13, 14, 26, 27, 28, 30 and 31. (See,
Exhibit "l ")
Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33 sought the production of
documents related to and/or evincing corporate filings with the Secretary of State, corporate
meetings and resolutions of Defendant Grand Slam and Defendant JG Real Estate. (See, Exhibit
"2" sub Exhibit "6")
Whether Defendants adhered to corporate formalities is also a factor to be considered in an
action, like here, that seeks to pierce the corporate veil. See, Matter of Agai v. Diontech
Consulting, Inc., supra, 737; Millennium Constr., LLC v. Loupolover, 44 A.D.3d 1016, 1016-17,
845 N.Y.S.2d 110, 111 (2d Dept., 2007) ["Factors to be considered by a court in determining
whether to pierce the corporate veil include failure to adhere to corporate formalities, inadequate
capitalization, commingling of assets, and use of corporate funds for personal use"]
Accordingly, Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33 seeking the
production of documents related to and/or evincing corporate filings with the Secretary of State,
corporate meetings and resolutions of Defendant Grand Slam and Defendant JG Real Estate are
not palpably improper.
It is respectfully submitted; the Court mistakenly granted Defendants a protective order with
regards to Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33. (See, Exhibit "1")
Plaintiff's document demands numbered 37, 38, 41 and 42 sought the production of
Defendant Steinberg':, und Defendant Reiner':, bunking record:, und tux return:,. (See, Exhibit "2"
sub Exhibit "6")
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Tax returns are not privileged United States v. Bonanno Organized Crime Family of La Cosa
Nostra, 119 F.R.D. 625, 627 (E.D.N.Y. 1988) [" ...judicial consensus is that...tax returns are not
privileged"] nor is a request for tax returns palpably improper. See, D.A. Bennett LLC v. Cartz,
113 A.D.3d 945, 948, 979 N.Y.S.2d 179, 183 (3d Dept., 2014) ["A request for tax returns is not
palpably improper ... "] While the disclosure of tax returns is not favored, Active Fire Sprinkler
Corp. v. Am. Home Assurance Co., 203 A.D.2d 218, 218, 609 N.Y.S.2d 663, 664 (2d Dept.,
1994) they can be ordered to be produced in special circumstances. The special circumstances
requirement is met in cases wherein an inference of fraudulent conduct may fairly be drawn from
factual allegations asserted to support pleaded claims for relief, including cases, such as the
instant one, wherein the claims are based upon the improper transfer of the subject Property. See,
Holme v. Glob. Minerals & Metals Corp., 90 A.D.3d 423, 423-24, 934 N.Y.S.2d 30, 31 (1 st
Dept., 2011) ["The IAS court also providently exercised its discretion by ordering defendants
Campbell and Shah to produce their individual tax returns."] see also, Evangelista v. VLS
Enters. Corp., 274 A.D.2d 317, 317, 711 N.Y.S.2d 724, 724 (1 st Dept., 2000)
"In this action alleging the fraudulent conveyance of funds from one defendant
company to another to avoid repayment of promissory notes held by plaintiff, the
motion court properly exercised its discretion in directing that certain tax returns
and business records of both defendant companies be provided to plaintiff, since
the sought documents are material and necessary to plaintiffs prosecution of his
lawsuit and there was no claim that they are privileged from disclosure"
Accordingly, an inference of possible fraud is sufficient to overcome the normal reluctance to
order production of tax returns. See, e.g., David Lcinoff, Inc. v. 208 W. 29th St. Assocs., 243
A.D.2d 418,663 N.Y.S.2d 554 (1 st Dept., 1997); Leon Sylvester, Inc. v. Aetna Cas. & Sur. Co.,
189 A.D.2d 730,592 N.Y.S.2d 741 (1 st Dept., 1993)
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Also, where there are indicia of fraud, special circumstances are present to warrant the
disclosure of income tax returns. See, Dore v. Allstate Indem. Co., 264 A.D.2d 804, 804, 695
N.Y.S.2d 422, 423 (2d Dept. 1999) [special circumstances are present to warrant the disclosure
of income tax returns when there are indicia of fraud]; Four Aces Jewelry Corp. v. Smith, 256
A.D.2d 42, 43, 680 N.Y.S.2d 539, 540 (1 st Dept., 1998) [an inference of possible fraud,
overcomes normal reluctance to order production of tax returns]
In the case at bar, Plaintiff asserts causes of action for the fraudulent conveyance of the
subject Property and seeks to pierce the corporate veil identifying indicia of fraud including, but
not limited to, (1) the close relationship among the parties to the transaction, (2) the inadequacy
of consideration, (3) the transferor's knowledge of the creditor's claims, or claims so likely to
arise as to be certain, and the transferor's inability to pay them, and (4) the retention of control of
property by the transferor after the conveyance. See, Pen Pak Corp. v. LaSalle Nat'l Bank, 240
A.D.2d 384, 386, 658 N.Y.S.2d 407,408 (2d Dept., 1997)
Accordingly, given the circumstances of this case, Plaintiffs document demands numbered
37, 38, 41 and 42 seeking the production of Defendant Steinberg's and Defendant Reiner's
banking records and tax returns are not palpably improper and there was no claim that they are
privileged from disclosure. (See, Exhibit "2" sub Exhibit "6")
It is respectfully submitted; the Court mistakenly granted Defendants a protective order with
regards to Plaintiffs document demands numbered 37, 38, 41 and 42. (See, Exhibit "1")
Plaintiffs document demand number 44 sought the production of documents related to
and/or evincing appraisals and/or valuations of the subject Property, den1und numbered 46
sought the production of documents related to title searches and demand number 48 sought the
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production of documents related to and/or evincing improvements made to the subject Property.
(See, Exhibit "2" sub Exhibit "6")
The value of the subject Property is a material element in a fraudulent conveyance action and
necessary to determine if the consideration given in exchange for conveyance was fairly
equivalent and proportionate to the value of the property conveyed. See, DCL §272; Cheek v.
Brooks, 188 A.D.3d 785, 786, 135 N.Y.S.3d 478, 480 (2d Dept., 2020) ["To constitute fair
consideration, the value given in exchange must be fairly equivalent and proportionate to the
value of the property conveyed"]; Palmerone v. Staples, 195 A.D.3d 736, 737-38, 150 N.Y.S.3d
723, 725-26 (2d Dept., 2021)
Accordingly, Plaintiffs document demands seeking the production of documents related to
and/or evincing appraisals and/or valuations of the subject Property are not palpably improper.
Further, ti
Preview
FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 SUPREME COURT OF THE STATE OF NEW YORK Return Date: 07/15/2022 COUNTY OF NASSAU Hon. Erica L. Prager -------------------------------------------------------------------------x Index No. 001052/2019 JAMES MORAN, Plaintiff, -against- GRAND SLAM VENTURES, LLC, JON STEINBERG, GLENN A. REINER, JG REAL ESTATE VENTURES, LLC, and "JOHN DOES" # 1-10 inclusive, the last ten names being fictitious and unknown to plaintiff, Defendants. -------------------------------------------------------------------------x PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO REARGUE AND RENEW James Moran Plaintiff pro se 28 Carrie Avenue Bethpage, New York 11714 Tel: (516) 302-6581 Email: iiin.catlawl@gmail.com 1 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii THE NATURE OF THIS ACTION ................................................................................................ 1 PROCEDURAL HISTORY AND STATEMENT OF FACTS ....................................................... 1 PLAINTIFF'S INSTANT MOTION ............................................................................................... ! PRELIMINARY STATEMENT ..................................................................................................... 1 PRELIMINARY ARGUMENT ....................................................................................................... 2 POINT I: PLAINTIFF'S MOTION FOR LEAVE TO REARGUE AND RENEW ....................... 3 A. LEA VE TO REARGUE .......................................................................................... 3 1) PROCEDURAL GROUNDS ....................................................................... 4 2) PLAINTIFF'S DOCUMENT DEMANDS .................................................. 7 3) PLAINTIFF'S INTERROGATORIES ...................................................... 16 B. LEAVE TO RENEW ............................................................................................. 20 CONCLUSION .............................................................................................................................. 22 2 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 TABLE OF AUTHORITIES Page(s) Cases: Aaron v McIntyre, 15 AD3d 475,476, 790 N.Y.S.2d 187 (2d Dept., 2005) .......................................................... .10 Active Fire Sprinkler Corp. v. Am. Home Assurance Co., 203 A.D.2d 218,218,609 N.Y.S.2d 663,664 (2d Dept., 1994) ................................................ 12 Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403,406,288 N.Y.S.2d 449,452,235 N.E.2d 430,432 (N.Y., 1968) ...................... .2 A&M Glob. Mgmt. Corp. v. Northtown Urology Assocs., P.C., 115 A.D.3d 1283, 1288, 983 N.Y.S.2d 368,375 (4 th Dept., 2014) ............................................ 19 Am. Panel Tee v. Hyrise, Inc., 31 A.D.3d 586, 587, 819 N.Y.S.2d 768, 769 (2d Dept., 2006) .................................................... 9 Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 364 N.E.2d 835,836,396 N.Y.S.2d 170, 172 (N.Y., 1977) ................... 2 Borgia v. Rothberg, 148 A.D.3d 1109, 1110, 50 N.Y.S.3d 452,454 (2d Dept., 2017) ................................................ 2 Cheek v. Brooks, 188 A.D.3d 785, 786, 135 N.Y.S.3d 478,480 (2d Dept., 2020) ......................................... .14, 19 Coccia v. Liotti, 70 A.D.3d 747, 752, 896 N.Y.S.2d 90, 96 (2d Dept., 2010) ..................................................... .20 Cooper v. Drobenko Bros. Realty, Inc., 200 A.D.2d 415,415, 606 N.Y.S.2d 213,214 (1 st Dept., 1994) .................................................. 5 D .A. Bennett LLC v. Cartz, 113 A.D.3d 945, 948, 979 N.Y.S.2d 179, 183 (3d Dept., 2014) .......................................... 11-12 David Leinoff, Inc. v. 208 W. 29th St. Assocs., 243 A.D.2d 418,663 N.Y.S.2d 554 (1 st Dept., 1997) ................................................................. 12 DiMichd v. S. Buffa.lo Ry. Co., 80 N.Y.2d 184,193,590 N.Y.S.2d 1, 4,604 N.E.2d 63, 66 (N.Y., 1992) ................................... 2 Dore v. Allstate Indem. Co., 264 A.D.2d 804,804,695 N.Y.S.2d 422,423 (2d Dept. 1999) ........................................... 12-13 11 3 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Evangelista v. VLS Enters. Corp., 274 A.D.2d 317, 317, 711 N.Y.S.2d 724, 724 (1 st Dept., 2000) ................................................ 12 F. A. J. Co. v. Emenee Corp., 55 A.D.2d 925, 926, 390 N.Y.S.2d 634 (2d Dept., 1977) ............................................................ 6 Fanelli v. Fanelli, 296 A.D.2d 373, 745 N.Y.S.2d 435 (2d Dept., 2002) ................................................................. .4 Four Aces Jewelry Corp. v. Smith, 256 A.D.2d 42, 43,680 N.Y.S.2d 539,540 (1 st Dept., 1998) .................................................... 13 George v. Victoria Albi, Inc., 148 A.D.3d 1119, 1119, 50 N.Y.S.3d 466, 467-68 (2d Dept., 2017) ......................................... 10 Giarguaro S.p.A. v. Amko Int'l Trading, Inc., 300 A.D.2d 349,350, 751 N.Y.S.2d 772, 773 (2d Dept., 2002) ................................................ 10 Holme v. Glob. Minerals & Metals Corp., 90 A.D.3d 423, 423-24, 934 N.Y.S.2d 30, 31 (1 st Dept., 2011) ................................................. 12 Hunt v. Odd Job Trading, 44 A.D.3d 714, 715-16, 843 N.Y.S.2d 423,425 (2d Dept., 2007) ............................................... 5 Itzkowitz v. King Kullen Grocery Co., Inc., 22 A.D.3d 636,638, 804 N.Y.S.2d 350,351 (2d Dept. 2005) ..................................................... 1 Joslin v. Lopez, 309 A.D.2d 837, 839, 765 N.Y.S.2d 895 (2d Dept., 2003) ........................................................ 15 Kamerman v. Kolt, 187 A.D.2d 564, 564, 591 N.Y.S.2d 332, 332 (2d Dept., 1992) .................................................. 5 Kessel v. Dodd, 46 A.D.2d 645, 646, 359 N.Y.S.2d 594, 597 (2d Dept., 1974) .................................................... 8 Leon Sylvester, Inc. v. Aetna Cas. & Sur. Co., 189 A.D.2d 730,592 N.Y.S.2d 741 (1 st Dept., 1993) ................................................................. 12 Lubell v Work Wear Corp., 82 Mi:sc 2d 1000, 1002, 371 N.Y.S.2d 341 [Civil Court, Quccn;s County 1975] affd 86 Misc. 2d 1001, 384 N.Y.S.2d 993 (App Term, 2d Dept, 2d & 11 to Jud Dists 1976)....................................................................... 16 Matter of Agai v. Diontech Consulting, Inc., 138 A.D.3d 736, 737, 29 N.Y.S.3d 441,442 (2d Dept., 2016) ...................................... 10, 11, 18 111 4 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Medaris v. Vosburgh, 93 A.D.2d 882,882,461 N.Y.S.2d 415,416 (2d Dept., 1983) ................................................. .16 Mega Pers. Lines, Inc. v. Halton, 9 A.D.3d 553, 555, 780 N.Y.S.2d 409,411 (3d Dept., 2004) ................................................ 8, 17 Millennium Constr., LLC v. Loupolover, 44 A.D.3d 1016, 1016-17, 845 N.Y.S.2d 110, 111 (2d Dept., 2007) ......................................... 11 Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865, 866 (2d Dept., 2011) ................................................... .2 Nat'l Mtge. Consultants v. Elizaitis, 23 A.D.3d 630, 630, 804 N.Y.S.2d 799, 800 (2d Dept., 2005) .................................................... 2 New Line Stone Co., Inc. v. BCRE Servs. LLC, 89 A.D.3d 581,581,932 N.Y.S.2d 690,691 (1 st Dept., 2011) .................................................. 19 Palmerone v. Staples, 195 A.D.3d 736, 737-38, 150 N.Y.S.3d 723, 725-26 (2d Dept., 2021) ............................... .14, 19 Pen Pak Corp. v. LaSalle Nat'l Bank, 240 A.D.2d 384,386,658 N.Y.S.2d 407,408 (2d Dept., 1997) ................................................ 13 Peretz v. Zhenjun Xu, 2022 NY Slip Op 03017, 12 (2d Dept., 2022) ............................................................................. 3 Perez v. Stonehill, 121 A.D.3d 960, 961, 993 N.Y.S.2d 920, 920 (2d Dept., 2014) ................................................. .4 Recine v. City ofN.Y., 156 A.D.3d 836, 836, 65 N.Y.S.3d 788, 788 (2d Dept., 2017) .................................................... 5 Sorto v. S. Nassau Cmty. Hosp., 273 A.D.2d 373,374, 710 N.Y.S.2d 910 (2d Dept., 2000) ........................................................ 20 SR Holding I, LLC v. Cannavo, 2021 NY Slip Op 32984(U), ,-r 13 (Sup. Ct.) ............................................................................. .19 United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 I'.R.D. 625,627 (E.D.N.Y. 1988) ........................................................................................ l 1 lV 5 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Statutes & Other Authorities: CPLR §2221(d) ............................................................................................................................. 3 CPLR §2221(e) ........................................................................................................................... 20 CPLR §2221 (f) ..........................................................................................................................1, 3 CPLR §3101 .................................................................................................................................. 4 CPLR §3101(a) ............................................................................................................................. 2 CPLR §3103 .................................................................................................................................. 5 CPLR §3120 .................................................................................................................................. 5 CPLR §3122(a)(l) ................................................................................................................ 4, 5, 6 CPLR §3126 ................................................................................................................................. 5 CPLR §3131 ............................................................................................................................... 16 CPLR 3133(a) ....................................................................................................................... 4, 5, 6 DCL §270 ............................................................................................................................... 9, 14 DCL §271 ............................................................................................................................... 9, 14 DCL §272 ................................................................................................................................... 19 DCL §272(a) ............................................................................................................................... 16 DCL §273 ..................................................................................................................................... 9 DCL §275 ..................................................................................................................................... 9 DCL §276 ................................................................................................................................... 19 22 NYCRR 202. 7 .......................................................................................................................... 4 V 6 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 THE NATURE OF THIS ACTION This is an action brought under former Debtor and Creditor Law article 10 for the fraudulent conveyance of real property commonly known as 219 Hempstead Turnpike, West Hempstead, New York 11552 (the subject "Property") from Defendant Grand Slam Ventures, LLC to Defendant JG Real Estate Ventures, LLC, which occurred on September 26, 2013, and to pierce the corporate veils. (See, Exhibit "2" sub Exhibit "l ") PROCEDURAL HISTORY AND STATEMENT OF FACTS The relevant background facts and procedural history of this action and the prior action are set forth in the affidavit of James Moran ("Plaintiff' and/or "Moran") sworn to February 11, 2020 (See, Exhibit "2") and Moran's affidavit submitted herewith, sworn to June 15, 2022. 1 PLAINTIFF'S INSTANT MOTION Plaintiff's instant motion seeks an Order, pursuant to CPLR §2221(f), granting Plaintiff leave to reargue and renew the Order of this Court [Sullivan, J.] dated August 30, 2021; and/or for such other, further and different relief as this Honorable Court may deem just, proper and equitable. PRELIMINARY STATEMENT Plaintiff filed a Notice of Appeal on September 22, 2021 from this Court's Order dated August 30, 2021 (See, Exhibit "1 ") and the appeal is currently due to be perfected by June 21, 2022 (M283142) and, as such, this Court's consideration of the instant motion is an appropriate exercise of discretion. See, Itzkowitz v. King Kullen Grocery Co., Inc., 22 A.D.3d 636, 638, 804 N.Y.S.2d 350,351 (2d Dept. 2005) ["The Supreme Court had jurisdiction to reconsider its prior order 'regardless of statutory time limits concerning motions to reargue'"] 1 References herein to "Exhibit" are those annexed by reference to the affidavit of James Moran sworn to June 15, 2022. 1 7 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Moreover, as pointed out by the Court of Appeals, "[e]very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made" Quoting, Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 364 N.E.2d 835, 836, 396 N.Y.S.2d 170, 172 (N.Y., 1977) see also, Nat'l Mtge. Consultants v. Elizaitis, 23 A.D.3d 630, 630, 804 N.Y.S.2d 799, 800 (2d Dept., 2005) ["Indeed, a court may review a previously-decided matter where there is a need to correct clear error"] PRELIMINARY ARGUMENT CPLR §3 lOl(a) provides for disclosure of "all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof' and the words, "material and necessary", are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. See, Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432 (N.Y., 1968) ["If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense"] "New York has long favored open and far-reaching pretrial discovery" Quoting, DiMichel v. S. Buffalo Ry. Co., 80 N.Y.2d 184, 193, 590 N.Y.S.2d 1, 4, 604 N.E.2d 63, 66 (N.Y., 1992) and pretrial disclosure extends not only to proof that is admissible, but also to matters that may lead to the disclosure of admissible proof See, Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865, 866 (2d Dept., 2011) and the party seeking to preclude discovery has the burden of proving that the material :sought i:s not di:scoverable. See generally, Borgia v. Rothberg, 148 A.D.3d 1109, 1110, 50 N.Y.S.3d 452, 454 (2d Dept., 2017) ["the defendant had the burden of proving that the Alcon documents were not discoverable"] 2 8 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 POINT I PLAINTIFF'S MOTION FOR LEAVE TO REARGUE AND RENEW CPLR §2221(f) provides: "A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination." A. LEAVE TO REARGUE CPLR §2221(d) provides: [a] motion for leave to reargue: l. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. It is well settled, a motion to reargue is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law or for some reason mistakenly arrived at its earlier decision. See generally, Peretz v. Zhenjun Xu, 2022 NY Slip Op 03017, if 2 (2d Dept., 2022) It is respectfully submitted; the Court [Sullivan, J.], in determining the parties prior motions, overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law or for some reason mistakenly arrived at its earlier decision. 3 9 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 1) PROCEDURAL GROUNDS It is respectfully submitted; in granting Defendants a protective order the Court overlooked that Defendants' Counsel failed to set forth an affirmation demonstrating that a good faith effort was made to resolve the issues, 22 NYCRR 202.7. (See, Exhibit "3") The Appellate Division, Second Department, has held that it is proper to deny a motion seeking a protective order on procedural grounds when there is a failure to provide the required affirmation demonstrating a good faith effort was made to resolve the disclosure dispute. See, Perez v. Stonehill, 121 A.D.3d 960, 961, 993 N.Y.S.2d 920, 920 (2d Dept., 2014) ["The defendants' failure to submit an affirmation of the parties' good faith effort to resolve the disclosure dispute pursuant to 22 NYCRR 202.7 (a) (2) in connection with their motion required the denial of the motion"]; Fanelli v. Fanelli, 296 A.D.2d 373, 745 N.Y.S.2d 435 (2d Dept., 2002) ["The Supreme Court properly denied, on both procedural and substantive grounds, the plaintiff's motion to quash the subpoena duces tecum and for a protective order."] It is respectfully submitted, in granting Defendants a protective order the Court also overlooked that Defendants failed to make a timely challenge to Plaintiff's discovery demands pursuant to CPLR §3122(a)(l) and CPLR §3133(a) which forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR §3101 or requests that are palpably improper. On December 6, 2019 Defendants were served with Plaintiff's discovery demands (See, Exhibit "2" sub Exhibit "5") and according to the PC Order entered on December 17, 2019 Defendill:lts vvere required to respond to Plaintiff's demlll:lds by Jlll:luttry 17, 2020 (See, Exhibit "2" sub Exhibit "8") 4 10 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Defendants refused to respond to Plaintiffs discovery demands and only after Plaintiff brought a motion seeking an Order, pursuant to CPLR §3126, striking Defendants' Verified Answer and/or precluding Defendants from introducing, on motion and/or at trial, any evidence not produced for their failure to do so (See, Exhibit "2") did Defendants cross-move for a protective order, on or about February 20, 2020. (See, Exhibit "3") While a motion for a protective order pursuant to CPLR § 3103 can be generally made at any time, a motion for a protective order with respect to any discovery demands made pursuant to CPLR §3120 must be made within the time provided for by CPLR §3122(a)(l) and a failure to adhere to the mandates of CPLR §3122(a)(l) constitutes a waiver and bars the movants from obtaining a protective order. See, Recine v. City ofN.Y., 156 A.D.3d 836, 836, 65 N.Y.S.3d 788, 788 (2d Dept., 2017) ["[a]defendant's failure to make a timely challenge to a plaintiffs document demand pursuant to CPLR 3122(a)(l) forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper"]; Hunt v. Odd Job Trading. 44 A.D.3d 714, 715-16, 843 N.Y.S.2d 423, 425 (2d Dept., 2007) With regards to Plaintiffs First Set of Interrogatories to Defendants, Defendants failure to adhere to the mandates of CPLR §3133(a) likewise constitutes a waiver and bars the movants from obtaining a protective order. See, Kamerman v. Kolt, 187 A.D.2d 564, 564, 591 N.Y.S.2d 332, 332 (2d Dept., 1992) [" ... the defendants' respective motions for protective orders were untimely (see, CPLR 3133 [a])"]; Cooper v. Drobenko Bros. Realty, Inc., 200 A.D.2d 415, 415, 606 N.Y.S.2d 213, 214 (1 st Dept., 1994) ["Defendant:,' cro:,:, motion for u protective order wu:, properly denied for the reason that they waived any right to such relief by failing to timely challenge the interrogatories in question (CPLR 3133 [a])"] 5 11 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Accordingly, Defendants waived objection based on any ground other than privilege or that the demands are palpably improper. Here, "[s]ince the materials sought do not fall within CPLR 3101 (subds [b], [c], [d]), ... defendant waived its right to object by failing to move for a protective order within the time provided for by CPLR 3122" Quoting, F. A. J. Co. v. Emenee Corp., 55 A.D.2d 925, 926, 390 N.Y.S.2d 634 (2d Dept., 1977) The Court's Order did not even mention CPLR §3122(a)(l) or CPLR §3133(a) or address the timeliness of Defendants' cross-motion and, as demonstrated below, Plaintiffs demands are not palpably improper. (See, Exhibit "1 ") The Court [Sullivan, J.] also seemed to misapprehend the facts by stating as follows: "While the record before the Court indicates that Defendants' response is overdue, with a preliminary conference stipulation and order having been completed only two (2) weeks after these discovery demands were served upon Defendants and with Plaintiff filing the instant order to show cause prior to any compliance conference having taken place," (See, Exhibit "1 ") It appears the Court [Sullivan, J.] overlooked the fact that Defendants were served with Plaintiffs discovery demands on December 6, 2019 (See, Exhibit "2" sub Exhibit "5") and that according to the PC Order entered on December 17, 2019 Defendants were required to respond to Plaintiffs demands by January 17, 2020 (See, Exhibit "2" sub Exhibit "8") and after their time expired a conference was in fact held before the Court [Libert, J.] on January 24, 2020 and an Order was entered directing that responses to discovery demands be served by February 3, 2020. (See, Exhibit "2" sub Exhibit "9" and Exhibit "6" sub Exhibit "20") It is respectfully submitted, Defendants' cross-motion seeking a protective order should have been denied on the above procedural grounds alone. 6 12 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 2) PLAINTIFF'S DOCUMENT DEMANDS The Court's Order in essence struck Plaintiffs document demands 2-4, 7, 9-17, 19-21, 24, 26-42, 44-46 and 48-50. (See, Exhibits "1" and "2" sub Exhibit "6") Plaintiffs document demands 2, 3, 4, 19, 20 and 21 sought documents related to and/or evincing the names of managers and members of Defendant Grand Slam and Defendant JG Real Estate and their respective contributions and share of profits and losses. (See, Exhibit "2" sub Exhibit "6") Plaintiffs document demands 35, 36, 39 and 40 sought documents related specifically to Defendant Steinberg's and Defendant Reiner's contribution and share of profits related to Defendant Grand Slam and Defendant JG Real Estate. (See, Exhibit "2" sub Exhibit "6") According to limited banking records produced in the supplementary proceedings, Defendant Reiner is listed as a "Signer" on a bank account Defendant Grand Slam maintained at Chase Bank (See, Exhibit "6" sub Exhibit "24") and he executed an Assignment of Contracts, Licenses and Permits on March 6, 2008 as Manager of Defendant Grand Slam Ventures. (See, Exhibit "6" sub Exhibit "25" - Page 7) Defendant Steinberg testified at his examination before trial in the prior action with uncertainty as to whether Defendant Reiner (Glen) was/is a member of Defendant Grand Slam. Q. Are you a member of Grand Slam Ventures, LLC? A. Yes. Q. Who are the other members of that LLC, Grand Slam Ventures? A. I don't remember. It might be Glen. I'm not sure. To the best of my knowledge, it's just mysdf. (See, Exhibit "6" sub Exhibit "21" at page 8 lines 15-22) 7 13 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Defendant Steinberg, nevertheless, testified during the inquest to determine Plaintiffs damages in the prior action that Defendant Reiner ran Defendant Grand Slam (See, Exhibit "6" sub Exhibit "23" at page 31 lines 16-25) and directed him to transfer the subject Property from Defendant Grand Slam to Defendant JG Real Estate and claims he doesn't know why. (See, Exhibit "6" sub Exhibit "23" at pages 27-28 lines 22-25 and 1-3) It should be noted, "[t]he doctrine of de facto officers is of ancient origin and applies to private as well as public officers." Quoting, Kessel v. Dodd, 46 A.D.2d 645, 646, 359 N.Y.S.2d 594,597 (2d Dept., 1974) (citations omitted) The names of managers and members of the corporate Defendants and their respective contributions and share of profits and losses are relevant to ownership and control of the transferor Defendant Grand Slam and the transferee Defendant JG Real Estate inasmuch as the transfer of corporate assets to an insider, either directly to the insider or to an entity controlled by the insider, establishes a lack of good faith as a matter of law. See, Mega Pers. Lines, Inc. v. Halton, 9 A.D.3d 553, 555, 780 N.Y.S.2d 409,411 (3d Dept., 2004) [" ... we agree with Supreme Court's premise that the transfer of corporate assets to an insider establishes a lack of good faith as a matter of law ... "] Accordingly, Plaintiffs document demands numbered 2, 3, 4, 19, 20, 21, 35, 36, 39 and 40 seeking documents related to and/or evincing the names of managers and members of the corporate Defendants and their respective contributions and share of profits and losses are not palpably improper. (See, Exhibit "2" sub Exhibit "6") It is respectfully submitted; the Court mistakenly granted Defendants a protective order with regards to Plaintiffs document demands numbered 2, 3, 4, 19, 20, 21, 35, 36, 39 and 40. (See, Exhibit "1 ") 8 14 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Plaintiffs document demands numbered 8, 9, 10, 11, 25, 26, 27 and 28 sought the production of banking records, accounting books and records, the assets of Defendant Grand Slam and Defendant JG Real Estate and their respective tax returns. (See, Exhibit "2" sub Exhibit "6") Plaintiffs document demands numbered 13, 14, 30 and 31 sought the production of documents related to any loan agreements to which Defendant Grand Slam and/or Defendant JG Real Estate were a party, either as the lender or the borrower. (See, Exhibit "2" sub Exhibit "6") While the Court directed Defendants to respond to Plaintiff's demands numbered 8 and 25 (banking records) accounting books and records, the assets of Defendant Grand Slam and Defendant JG Real Estate, their respective tax returns and any loan agreements are material and necessary in the prosecution or defense of this action brought under former DCL. Former DCL §271, Insolvency, provided in relevant part as follows: 1. "A person is insolvent when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured." Former DCL §270 provided: "In this article 'assets' of a debtor means property not exempt from liability for his debts. To the extent that any property is liable for any debts of the debtor, such property shall be included in his assets." and "Debt" includes any legal liability, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent. Plaintiffs document demands numbered 9, 10, 11, 13, 14, 26, 27, 28, 30 and 31 sought documents relevant to, inter alia, Defendant Grand Slam's solvency which is a material element in a fraudulent transfer case under DCL §273 and DCL §275. See, DCL §271; Am. Panel Tee v. Hyrise, Inc., 31 A.D.3d 586, 587, 819 N.Y.S.2d 768, 769 (2d Dept., 2006) [«A finding of constructive fraud pursuant to section 273 may thus be predicated upon proof of insolvency and lack of fair consideration, without a showing of actual motive or intent to defraud"] 9 15 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 In addition, money judgments have been entered against Defendant Grand Slam and tax returns are relevant and discoverable to aid in the satisfaction of the judgments. (See, Exhibit "2" sub Exhibit "13") Accordingly, Plaintiff, a judgment creditor, is entitled to discovery from Defendant Grand Slam, the judgment debtor, or a third party to determine whether Defendant Grand Slam concealed any assets or transferred any assets so as to defraud Plaintiff or improperly prevented the collection of the judgments. See, George v. Victoria Albi, Inc., 148 A.D.3d 1119, 1119, 50 N.Y.S.3d 466, 467-68 (2d Dept., 2017); Aaron v McIntyre, 15 AD3d 475, 476, 790 N.Y.S.2d 187 (2d Dept., 2005) [holding discoverable the tax returns of judgment debtor's wife's business when debtor might have used the business to conceal income and assets] Further, Plaintiffs Verified Complaint seeks to pierce the corporate veils (See, Exhibit "2" sub Exhibit "l ") and thus whether corporate funds were being commingled and/or whether funds are put in and taken out of the corporate accounts for personal rather than corporate purposes are factors to be considered in this action. See, Matter of Agai v. Diontech Consulting, Inc., 138 A.D.3d 736, 737, 29 N.Y.S.3d 441, 442 (2d Dept., 2016) [Personal use of corporate funds is one of the factors to be considered in piercing the corporate veil] Accordingly, Plaintiff's document demands seeking accounting books and records, the assets of Defendant Grand Slam and Defendant JG Real Estate, their respective tax returns and any loan agreements to which they were a party are not palpably improper. See, DCL §270; DCL §271; Giarguaro S.p.A. v. Amko Int'l Trading, Inc., 300 A.D.2d 349, 350, 751 N.Y.S.2d 772, 773 (2d Dept., 2002) [di:scovcry wu:s nece:s:sury in order to ullow pluintiff:s to u:scertuin whether there were sufficient grounds to pierce the corporate veil] 16 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 It is respectfully submitted; the Court mistakenly granted Defendants a protective order with regards to Plaintiff's document demands numbered 9, 10, 11, 13, 14, 26, 27, 28, 30 and 31. (See, Exhibit "l ") Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33 sought the production of documents related to and/or evincing corporate filings with the Secretary of State, corporate meetings and resolutions of Defendant Grand Slam and Defendant JG Real Estate. (See, Exhibit "2" sub Exhibit "6") Whether Defendants adhered to corporate formalities is also a factor to be considered in an action, like here, that seeks to pierce the corporate veil. See, Matter of Agai v. Diontech Consulting, Inc., supra, 737; Millennium Constr., LLC v. Loupolover, 44 A.D.3d 1016, 1016-17, 845 N.Y.S.2d 110, 111 (2d Dept., 2007) ["Factors to be considered by a court in determining whether to pierce the corporate veil include failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use"] Accordingly, Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33 seeking the production of documents related to and/or evincing corporate filings with the Secretary of State, corporate meetings and resolutions of Defendant Grand Slam and Defendant JG Real Estate are not palpably improper. It is respectfully submitted; the Court mistakenly granted Defendants a protective order with regards to Plaintiff's document demands numbered 7, 15, 16, 24, 32 and 33. (See, Exhibit "1") Plaintiff's document demands numbered 37, 38, 41 and 42 sought the production of Defendant Steinberg':, und Defendant Reiner':, bunking record:, und tux return:,. (See, Exhibit "2" sub Exhibit "6") 11 17 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Tax returns are not privileged United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y. 1988) [" ...judicial consensus is that...tax returns are not privileged"] nor is a request for tax returns palpably improper. See, D.A. Bennett LLC v. Cartz, 113 A.D.3d 945, 948, 979 N.Y.S.2d 179, 183 (3d Dept., 2014) ["A request for tax returns is not palpably improper ... "] While the disclosure of tax returns is not favored, Active Fire Sprinkler Corp. v. Am. Home Assurance Co., 203 A.D.2d 218, 218, 609 N.Y.S.2d 663, 664 (2d Dept., 1994) they can be ordered to be produced in special circumstances. The special circumstances requirement is met in cases wherein an inference of fraudulent conduct may fairly be drawn from factual allegations asserted to support pleaded claims for relief, including cases, such as the instant one, wherein the claims are based upon the improper transfer of the subject Property. See, Holme v. Glob. Minerals & Metals Corp., 90 A.D.3d 423, 423-24, 934 N.Y.S.2d 30, 31 (1 st Dept., 2011) ["The IAS court also providently exercised its discretion by ordering defendants Campbell and Shah to produce their individual tax returns."] see also, Evangelista v. VLS Enters. Corp., 274 A.D.2d 317, 317, 711 N.Y.S.2d 724, 724 (1 st Dept., 2000) "In this action alleging the fraudulent conveyance of funds from one defendant company to another to avoid repayment of promissory notes held by plaintiff, the motion court properly exercised its discretion in directing that certain tax returns and business records of both defendant companies be provided to plaintiff, since the sought documents are material and necessary to plaintiffs prosecution of his lawsuit and there was no claim that they are privileged from disclosure" Accordingly, an inference of possible fraud is sufficient to overcome the normal reluctance to order production of tax returns. See, e.g., David Lcinoff, Inc. v. 208 W. 29th St. Assocs., 243 A.D.2d 418,663 N.Y.S.2d 554 (1 st Dept., 1997); Leon Sylvester, Inc. v. Aetna Cas. & Sur. Co., 189 A.D.2d 730,592 N.Y.S.2d 741 (1 st Dept., 1993) 12 18 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 Also, where there are indicia of fraud, special circumstances are present to warrant the disclosure of income tax returns. See, Dore v. Allstate Indem. Co., 264 A.D.2d 804, 804, 695 N.Y.S.2d 422, 423 (2d Dept. 1999) [special circumstances are present to warrant the disclosure of income tax returns when there are indicia of fraud]; Four Aces Jewelry Corp. v. Smith, 256 A.D.2d 42, 43, 680 N.Y.S.2d 539, 540 (1 st Dept., 1998) [an inference of possible fraud, overcomes normal reluctance to order production of tax returns] In the case at bar, Plaintiff asserts causes of action for the fraudulent conveyance of the subject Property and seeks to pierce the corporate veil identifying indicia of fraud including, but not limited to, (1) the close relationship among the parties to the transaction, (2) the inadequacy of consideration, (3) the transferor's knowledge of the creditor's claims, or claims so likely to arise as to be certain, and the transferor's inability to pay them, and (4) the retention of control of property by the transferor after the conveyance. See, Pen Pak Corp. v. LaSalle Nat'l Bank, 240 A.D.2d 384, 386, 658 N.Y.S.2d 407,408 (2d Dept., 1997) Accordingly, given the circumstances of this case, Plaintiffs document demands numbered 37, 38, 41 and 42 seeking the production of Defendant Steinberg's and Defendant Reiner's banking records and tax returns are not palpably improper and there was no claim that they are privileged from disclosure. (See, Exhibit "2" sub Exhibit "6") It is respectfully submitted; the Court mistakenly granted Defendants a protective order with regards to Plaintiffs document demands numbered 37, 38, 41 and 42. (See, Exhibit "1") Plaintiffs document demand number 44 sought the production of documents related to and/or evincing appraisals and/or valuations of the subject Property, den1und numbered 46 sought the production of documents related to title searches and demand number 48 sought the 13 19 of 29 FILED: NASSAU COUNTY CLERK 06/16/2022 05:22 PM INDEX NO. 001052/2019 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/16/2022 production of documents related to and/or evincing improvements made to the subject Property. (See, Exhibit "2" sub Exhibit "6") The value of the subject Property is a material element in a fraudulent conveyance action and necessary to determine if the consideration given in exchange for conveyance was fairly equivalent and proportionate to the value of the property conveyed. See, DCL §272; Cheek v. Brooks, 188 A.D.3d 785, 786, 135 N.Y.S.3d 478, 480 (2d Dept., 2020) ["To constitute fair consideration, the value given in exchange must be fairly equivalent and proportionate to the value of the property conveyed"]; Palmerone v. Staples, 195 A.D.3d 736, 737-38, 150 N.Y.S.3d 723, 725-26 (2d Dept., 2021) Accordingly, Plaintiffs document demands seeking the production of documents related to and/or evincing appraisals and/or valuations of the subject Property are not palpably improper. Further, ti