Motion to Amend in Veludi Capital Strategies v. Manuel Pereira| Trellis.Law

On December 20, 2019 a Motion-Secondary was filed involving a dispute between Veludi Capital Strategies, and Manuel Pereira, for Commercial - Contract in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 04/07/2022 12:01 PM INDEX NO. 617853/2019
NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 04/07/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------------------------------------------------------------------X
VELUDI CAPITAL STRATEGIES, LLC,
Index No.: 617853/2019
Plaintiff,
Hon. Roy S. Mahon, J.S.C.
-against-
AFFIRMATION IN
MANUEL PEREIRA, OPPOSITION TO MOTIONS
TO REARGUE AND
Defendant. AMEND, AND IN SUPPORT
---------------------------------------------------------------------X OF CROSS-MOTION TO
MANUEL PEREIRA, STRIKE AND/OR COMPEL
FOR FAILURE TO ABIDE
Third-Party Plaintiff, BY THE COURT’S
DISCOVERY ORDER
-against-
Mot. Seq. Nos. 5-7
CHANDER K. GOEL and SUNIL KUMAR
PONNUMALA a/k/a SUNIL PONNUMALA
KUMAR,

Third-Party Defendants.
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ADAM P. WALD, ESQ., an attorney admitted to practice law before the Courts of the

State of New York affirms the following under the penalties of perjury:

1. I am an associate with the law firm of Meltzer, Lippe, Goldstein & Breitstone,

LLP, attorneys for defendant/third-party plaintiff Manuel Pereira (“Mr. Pereira”). As such I am

fully familiar with the facts and circumstances set forth herein.

2. I submit this Affirmation (1) in opposition to plaintiff Veludi Capital Strategies

(“Veludi”) and third-party defendant Chander K. Goel’s (“Goel”) motion to reargue Motion

Sequence Nos. 2 through 4 — i.e., their unsuccessful, successive, premature Motion to Dismiss

Mr. Pereira’s Counterclaims and Third-Party Complaint, as well as Mr. Pereira’s cross-motion to

compel discovery from Goel, Veludi, and third-party defendant Sunil Kumar Ponnumala a/k/a

Sunil Ponnumala Kumar’s (“Kumar”) (the “Motion to Reargue”) (Mot. Seq. No. 5); (2) in

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opposition to Veludi, Goel, and Kumar’s motion for leave to file untimely amended answers to

Mr. Pereira’s Counterclaims and Third-Party Complaint (the “Motion to Amend”) (Mot. Seq.

No. 6); and (3) in support of Mr. Pereira’s Cross-Motion for an order (i) striking Veludi, Goel,

and Kumar’s pleadings for their failure to abide by the Order (as is further defined herein), or, in

the alternative, (ii) once again compelling Veludi, Goel, and Kumar to produce responsive

documents and interpose fulsome discovery responses, as well as directing Veludi, Goel, and

Kumar to certify, in detail and under oath, the discrete steps they took to locate and produce

responsive documents to Mr. Pereira, and (iii) issuing discovery sanctions against Veludi, Goel,

and Kumar (Mr. Pereira’s “Second Cross-Motion”).

ARGUMENT

POINT I

GOEL AND VELUDI’S MOTION TO REARGUE IS NOTHING MORE THAN AN
ATTEMPT TO OBFUSCATE THEIR FAILURE TO COMPLY WITH THE
ORDER; IT MUST THEREFORE BE DENIED, AND MR. PEREIRA’S
SECOND CROSS-MOTION MUST BE GRANTED

3. In their Motion to Reargue, Goel and Veludi allege that reargument is proper,

because the Court’s order on Motion Sequence Nos. 2, 3 and 4, dated February 7, 2022 and

entered on March 2, 2022 (the “Order”) (NYSCEF Doc. No. 132, Exhibit “1”), which denied

both their and Kumar’s Motions to Dismiss Mr. Pereira’s Counterclaims and Third-Party

Complaint (collectively, the “Motions to Dismiss”), and granted Mr. Pereira’s Initial Cross-

Motion to Compel outstanding discovery (Mr. Pereira’s “Initial Cross-Motion”), could not

possibly have considered their opposition to Mr. Pereira’s Initial Cross-Motion, because:

a. The Order indicates that the relevant Notices of Motion and Notice of

Cross-Motion were the only “papers read” on the Motions to Dismiss and Mr. Pereira’s Initial

Cross-Motion;

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b. The Order notes that Mr. Pereira’s Initial Cross-Motion was “unopposed”;

and

c. Goel and Veludi assert that they have already fully responded to Mr.

Pereira’s First Notices of Discovery & Inspection and First Set of Interrogatories (collectively,

Mr. Pereira’s “Discovery Demands”).

4. Goel and Veludi likewise assert that, absent grant of the Motion to Reargue, “they

risk appearing in violation of” the Order — an outcome that, as is further discussed below, the

Motion to Reargue neither could, nor did, prevent. Indeed, Veludi, Goel, and Kumar opted to

ignore the Order, thereby engaging in willful and contumacious conduct sufficient to warrant the

striking of their pleadings.

5. Save for their assertion that their failure to timely produce responsive documents

and supplement their responses to Mr. Pereira’s Discovery Demands (Veludi, Goel, and Kumar’s

“Discovery Responses”) is evidentiary of their willful and contumacious conduct, all such

assertions fail.

6. At bottom, the simple fact is that, rather than comply with the Order, Veludi and

Goel seized on what is evidently a mere typographical error in that Order, and advanced that

typographical error as a basis for reargument of a motion the Court already denied. Mr. Pereira

respectfully submits that doing so is improper, and that the Motion to Reargue must be denied.

A. The Order’s Legend Does Not Serve as Grounds for Reargument.

7. Veludi and Goel’s reliance on Order’s legend regarding the “papers read” on the

Motions to Dismiss and Initial Cross-Motion, which they claim indicates that the Court did not

consider their motion papers, is meritless.

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8. While the Notice Cross-Motion Mr. Pereira filed in connection with his Initial

Cross-Motion does call for an order compelling Veludi, Goel, and Kumar, inter alia, to produce

all responsive documents and supplement their Discovery Responses, it does not provide for the

manner in which those Discovery Responses were deficient. (NYSCEF Doc. No. 72, Exhibit

“2”). The specific deficiencies in those Discovery Responses are only set forth in my

Affirmation in Support of Mr. Pereira’s Initial Cross-Motion (NYSCEF Doc. Nos. 73-112,

Exhibit “3”), and my Reply Affirmation in Further Support of Mr. Pereira’s Initial Cross-Motion.

(NYSCEF Doc. No. 129, Exhibit “4”).

9. As such, if the Court only read the relevant Notices of Motion and Notice of

Cross-Motion, it would never have been positioned to “observe[] that there is further discovery

owed to [Mr. Pereira] which may be material and necessary to the facts and issue[s] in this

action,” as it did in the Order. (NYSCEF Doc. No. 132, Exhibit “1” at 2). Clearly the Court read

the parties’ papers.

10. Even were that not the case, the Court was under no obligation to consider any

specific filing, and is vested with broad discretion to supervise discovery. Mazzurco v. Gordon,

173 A.D.3d 1001, 1002 (2d Dep’t 2019), quoting Arpino v. F.J.F. & Sons Elec. Co., Inc., 102

A.D.3d 201, 209 (2d Dep’t 2012) (“Trial courts are vested with broad discretion ‘in making

determinations concerning matters of disclosure,’ including imposing a penalty on a party for its

failure to comply with CPLR 3101(d)(1)(i)”).

11. Were the Court to, for example, only consider Veludi, Goel, and Kumar’s actual

Discovery Responses, deem those Discovery Responses insufficient, and thereby find the

Motions to Dismiss premature, it would be well within its discretion in doing so. See, e.g.,

Meyers v. Becker & Poliakoff, LLP, 202 A.D.3d 627 (1st Dep’t 2022) (finding that, while it

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“should have elaborated on its reasons,” a motion court providently exercised its discretion in

denying a motion to dismiss as premature “after discussing the motion at a preliminary

conference and concluding that discovery was needed, and that defendant . . . had in its

possession documents that plaintiff sought to prove his case.”) (emphasis added).

12. Like the motion court in Meyers, the Court has long-since already held that

outstanding issues of fact preclude dispositive relief prior to the close of discovery. In fact, it has

done so twice, denying both Veludi’s Motion for Summary Judgment in Lieu of Complaint

(NYSCEF Doc. No. 33, Exhibit “5”), and the Motions to Dismiss on the basis of unresolved

issues of fact. As such, the Court could have properly denied the Motions to Dismiss without

ever reaching the arguments Veludi, Goel, and Kumar advanced in support thereof.

13. This would remain true even if Veludi, Goel, and Kumar had provided sufficient

Discovery Responses and produced all discoverable documents — which they most certainly

have not — as, by virtue of Veludi, Goel, and Kumar’s discovery abuses, the parties have yet to

conduct depositions. Town of Riverhead v. County of Suffolk, 66 A.D.3d 1004, 1005 (2d Dep’t

2009) (“At this stage, summary judgment would be premature absent depositions of the parties”).

B. Mr. Pereira’s Initial Cross-Motion Was Indeed “Unopposed,” and Goel and Veludi’s
Call for Reargument Misses the Point Entirely.

14. The Court was likewise within its discretion in deeming Mr. Pereira’s Initial

Cross-Motion to have been submitted without opposition, as that is exactly what happened.

15. Mr. Pereira’s Initial Cross-Motion was assigned a unique Motion Sequence

number, and none of Goel, Kumar, or Veludi filed anything against that Motion Sequence

number. Instead, they filed their reply and opposition papers against the Motion Sequence

numbers assigned to their Motions to Dismiss.

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16. Moreover, in the papers they apparently intended to file in opposition to Mr.

Pereira’s Initial Cross-Motion, Veludi, Goel, and Kumar all made sworn statements as to their

willingness to produce detailed certifications identifying the discrete steps they have taken to

locate responsive documents and produce same to Mr. Pereira. (NYSCEF Doc. No. 117, Exhibit

“6” at ¶ 27) (“Kumar does not object to certifying, or producing an affirmation describing his

search for responsive documents”); (NYSCEF Doc. No. 120, Exhibit “7” at ¶¶ 47, 49, 58)

(“Movants have nothing to hide. They will consent to being ordered to provide an affidavit

stating their efforts to obtain responsive documents.”).

17. While, to be sure, Mr. Pereira’s Initial Cross-Motion sought, and the Order

provided, relief beyond such certifications, as of the date of this Affirmation, none of Goel,

Veludi, or Kumar have so certified. It seems evident that this is because so certifying would

either require Veludi, Goel, and Kumar to attest to the insufficiency of their Discovery

Responses, or to engage in perjury.

18. That said, in seizing on the Court’s use of the word “unopposed,” Goel and

Veludi have missed the point entirely.

19. In denying Veludi’s Motion for Summary Judgment in Lieu of Complaint (Mot.

Seq. No. 1), the Court held that there were substantial issues of fact precluding a grant of

dispositive relief. (NYSCEF Doc. No. 33, Exhibit “5”). In doing so, it signaled that discovery

would need to be complete prior to a grant of dispositive relief, and were there any doubt as to

that fact, the Order expressly invokes the Court’s denial of Veludi’s Motion for Summary

Judgment in Lieu of Complaint:

The Court initially observes that the Court in its Order dated July
30, 2020 denied an application for summary judgment based upon
the divergent submissions creating an issue of fact of Chander

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Goel, plaintiff's managing partner and the defendant Manuel
Pereira.

(NYSCEF Doc. No. 132, Exhibit “1”).

20. Thus, despite Goel and Veludi’s deeming Mr. Pereira’s characterization of the

Motions to Dismiss as successive to be “nonsensical” (NYSCEF Doc. No. 120, Exhibit “7” at ¶

46), that argument appears to have served as precisely the basis for the Court’s denial of their

Motions to Dismiss.

21. Having been repeatedly warned by the Court that it would not grant dispositive

relief prior to the close of discovery, Goel and Veludi nonetheless filed their Motion to Reargue

— taking a third “bite at the apple,” and again seeking dispositive relief, while continuing to

ignore their obligation to engage in full disclosure of the facts at issue in Mr. Pereira and Goel’s

“divergent submissions” — submissions that related to, without limitation, the fraud Veludi,

Goel, and Kumar worked on Mr. Pereira. (See generally NYSCEF Doc. No. 11, Exhibit “8”).

22. This third attempt to secure summary relief prior to the close of discovery is no

more availing than the prior two attempts, and the Motion to Reargue must therefore be similarly

denied.

C. The Court’s Determination on the Insufficiency of Veludi, Goel, and Kumar’s
Discovery Responses is Not the Proper Subject of a Motion to Reargue.

23. Moreover, Goel and Veludi’s hollow assertion that their Discovery Responses

were exhaustive is not the proper subject for reargument.

24. It is well settled that a motion to reargue must be based on “matters of fact or law

allegedly overlooked or misapprehended by the court in determining the prior motion[.]” (CPLR

2221(d)(2)).

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25. In calling for reargument, Goel and Veludi assert, as they did in purportedly

attempting to oppose Mr. Pereira’s Initial Cross-Motion, that their Discovery Responses are

sufficient. (NYSCEF Doc. No. 120, Exhibit “7” at ¶¶ 47-58).

26. As noted above, if the Court did decline to consider that assertion on the grounds

that Mr. Pereira’s Initial Cross-Motion was submitted without opposition, it was well within its

rights in doing so, and any papers not submitted in opposition to Mr. Pereira’s Initial Cross-

Motion cannot be considered on a motion to reargue. Phillips v. Vil. of Oriskany, 57 A.D.2d 110,

113 (4th Dep’t 1977) (“[A] motion [to reargue] is made on the papers submitted on the original

motion, and new facts may not be presented thereon”).

27. That said, as the Court expressly found that “there is further discovery owed to”

Mr. Pereira (NYSCEF Doc. No. 132, Exhibit “1”), it seems evident that the Court did consider

that assertion, and found it unavailing — a sentiment Mr. Pereira whole-heatedly shares.

28. The Motion to Reargue is therefore not based on overlooked matters of fact or

law, but rather, is another successive attempt to secure dispositive relief prior to the close of

discovery on the basis of hollow assurances from an individual without personal knowledge of

Veludi and Goel’s document retention practices. Shalom Brokerage, Inc. v. Nassau Ins. Co., 80

A.D.2d 890, 890 (2d Dep’t 1981) (reversing an order granting reargument of a motion to vacate

interrogatories, which had been denied, where it was only supported by a “conclusory” affidavit

made “upon second-hand knowledge” to the exclusion of a “comprehensive explanation for the

failure to disclose, based upon personal knowledge”).

29. As it fails to comply with the dictates of CPLR 2221(d), the Motion to Reargue

must be denied.

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POINT II

VELUDI, GOEL, AND KUMAR HAVE VIOLATED THE ORDER,
AND MUST AGAIN BE COMPELLED TO RECTIFY
THEIR CONTINUED DISCOVERY ABUSES

30. Significantly, while Goel and Veludi purportedly filed the Motion to Reargue for

the purpose of avoiding the “risk [of] appearing in violation of the Court’s order[,]” as of the date

of this Affirmation, Goel, Veludi and Kumar are all in violation of the Order.

31. Mr. Pereira is therefore left with no option but to bring a motion to strike Veludi,

Goel, and Kumar’s pleadings and for sanctions, or in the alternative, for a further order

compelling Veludi, Goel, and Kumar to produce responsive documents and furnish proper

Discovery Responses, requiring Veludi, Goel, and Kumar to certify, in detail and under oath, the

discrete steps they took to locate and produce responsive documents, and for sanctions, which

Mr. Pereira submits must be granted.

32. As the defects at issue in his Initial Cross-Motion remain unaddressed and serve

as the basis for the instant Cross-Motion, Mr. Pereira incorporates the arguments he advanced in

the papers he submitted in support of his Initial Cross-Motion (NYSCEF Doc. No. 73, Exhibit

“3” at ¶¶ 65-105; NYSCEF Doc. No. 129, Exhibit “4” at ¶¶ 13-21) as if fully set forth herein.

33. At a high level, in those papers, Mr. Pereira noted, among others, that:

a. Veludi, Goel, and Kumar — i.e., an institutional actor and two of its senior

members — initially claimed to only have fifty pages worth of responsive documents, and after

Mr. Pereira’s having engaged in significant efforts to secure their production of further

responsive documents, Veludi, Goel, and Kumar claimed that their production of a total of two

hundred and thirty one documents — i.e., a mere fifteen percent of the 1,457 documents Mr.

Pereira, the individual they defrauded, produced — was exhaustive;

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b. The documents Veludi, Goel and Kumar claim not to have include,

without limitation, text messages and email correspondence sent directly to Goel and Kumar’s

personal cellphone numbers and email addresses, as well as employment, disciplinary, and

compensation records, and Veludi, Goel, and Kumar’s bare claims as to the exhaustive nature of

their document productions were (and remain), at best, suspect; and

c. Goel and Kumar’s responses to Mr. Pereira’s First Sets of Interrogatories

were simply not accurate, with, among others, (i) Kumar falsely testifying that he received no

financial incentive in connection with his sale of the MassMutual Policies (as defined in

NYSCEF Doc. No. 73, Exhibit “3”), despite Goel’s having testified otherwise, (ii) Goel’s

testifying that he had never been the subject “discipline and/or investigation by any insurance

regulatory body, including without limitation FINRA,” despite having been subject to

investigation and disciplinary action by, at least, both FINRA and the New York State

Department of Financial Services, and (iii) Goel’s only amending his false testimony after Mr.

Pereira independently located documents conclusively demonstrating the fact that his testimony

was inaccurate, and even then, continuing to assert that this testimony was accurate, inasmuch as

“FINRA is not a regulatory body with jurisdiction over insurance” — even though the

disciplinary action FINRA took against him was expressly in connection with “inappropriate

traditional insurance sales practices.”

34. While the Order affords Veludi, Goel, and Kumar forty-five days to provide “the

interrogatories and demanded discovery,” Goel and Veludi waited thirty-six days from the date

on which the Order was first published to the NYSCEF system — i.e., eighty percent of the time

they were afforded under the Order — to bring their Motion to Reargue. They likewise noticed

that Motion to Reargue for two weeks after their deadline to comply with the Order.

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35. As a result, the aforementioned forty-five day period for Veludi, Goel, and Kumar

to comply with the Order ran on April 4, 2022.

36. In the time since Mr. Pereira’s Initial Cross-Motion, none of Veludi, Goel, and

Kumar have supplemented their responses to Mr. Pereira’s First Notices for Discovery &

Inspection and First Sets of Interrogatories, and none have provided so much as a single

document to Mr. Pereira.

37. Moreover, as noted above, Veludi, Goel, and Kumar have all failed to produce

detailed certifications identifying the discrete steps they have taken to locate responsive

documents and produce same to Mr. Pereira, despite having made unambiguous, written, sworn

statements in their Court filings indicating that they would do so. (NYSCEF Doc. No. 117,

Exhibit “6” at ¶ 27); (NYSCEF Doc. No. 120, Exhibit “7” at ¶¶ 47, 49, 58).

38. In other words, the Motion to Reargue did not obviate the “risk [of] appearing in

violation of” the Order; itall but guaranteed that Veludi, Goel, and Kumar would violate the

Order. That violation did actually occur, and as of the date of this Affirmation, it remains

uncured. 1

39. As the Court has already determined that “there is further discovery owed” to Mr.

Pereira (NYSCEF Doc. No. 132, Exhibit “1”), and as Goel and Veludi were, at best, dilatory in

seeking confirmation regarding the significance of the Order’s “papers read” legend, if any, Goel

and Veludi’s claim that “there is nothing further to produce” (NYSCEF Doc. No. 137 at ¶ 7) is

nothing short of an unambiguous refusal to comply with a Court order.

1
Inasmuch as the Motion to Reargue represents an unequivocal refusal to comply with the Order, further good faith
efforts to secure Veludi, Goel, and Kumar’s compliance with the Order would have been futile, and were therefore
unnecessary. Louis F. Burke PC v. Aezah, 190 A.D.3d 582 (1stDep’t 2021); Suarez v. Shapiro Family Realty
Assoc., LLC, 149 A.D.3d 526, 527 (1st Dep’t 2017); Diamond State Ins. Co. v. Utica First Ins. Co., 67 A.D.3d 613,
613 (1st Dep’t 2009); Carrasquillo ex rel. Rivera v. Netsloh Realty Corp., 279 A.D.2d 334, 334 (1st Dep’t 2001);
Gardner v. Kawasaki Heavy Indus. Ltd., 213 A.D.2d 840, 842 (3d Dep’t 1995).

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40. Having willfully violated the Order, Veludi, Goel, and Kumar’s conduct is the

definition of willful and contumacious, and their pleadings should be stricken.

41. In the event the Court sees fit to award a lesser sanction, Mr. Pereira respectfully

submits that (1) Veludi, Goel, and Kumar must be compelled to rectify their discovery abuses

once more; (2) given Veludi, Goel, and Kumar’s claims that they have produced all responsive

documents, must be required to certify, in detail and under oath, the discrete steps they took to

locate and produce discoverable matter; and (3) he should be granted an award of the costs and

fees he incurred in once again securing such relief.

POINT III

VELUDI, GOEL, AND KUMAR HAVE LONG-SINCE WAIVED THE
UNTIMELY PROPOSED AMENDMENTS THEY SEEK LEAVE TO FILE

42. Like the Motion to Reargue, the Motion to Amend is too little and far too late. As

it is untimely, procedurally defective, and meritless the Motion to Amend must be denied.

A. The Motion to Amend is Untimely.

43. First, the Motion to Amend is untimely. Pursuant to this action’s Preliminary

Conference Order, motions to amend were to be filed within 30 days of the completion of

depositions, which were themselves to take place on or before January 31, 2022. (NYSCEF Doc.

No. 55, Exhibit “9” at ¶ 9). While the parties have been unable to conduct depositions due to

Veludi, Goel, and Kumar’s discovery abuses, they were therefore obligated to seek leave to

amend, if at all, no later than March 2, 2022.

44. Goel and Veludi filed the Motion to Amend on March 29, 2022, nearly a full

month after their time to do so had elapsed, and Kumar joined that motion on March 30, 2022.

The Motion to Amend is therefore untimely, and should be denied.

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B. As itRelates to Kumar, the Motion to Amend is Procedurally Defective and Must Be
Denied.

45. To that end, it is well settled that a motion to amend must be “accompanied by the

proposed amended or supplemental pleading clearly showing the changes or additions to be

made to the pleading.” (CPLR 3025(c)). Kumar, however, not only failed to seek leave to amend

by way of Notice of Motion, he failed to append a proposed amended pleading to the

Affirmation he filed in support of the Motion to Amend as the CPLR requires — i.e., the motion

Goel and Veludi filed seeking leave to amend their (not Kumar’s) Reply to Mr. Pereira’s Third-

Party Complaint and Counterclaims.

46. As such, to the extent Kumar “joined” the Motion to Amend, that branch of the

Motion to Amend through which Kumar seeks leave to amend must be denied out of hand. E.g.,

G4 Noteholder, LLC ex rel. Wells Fargo Bank, Nat. Ass'n v. LDC Properties, LLC, 153 A.D.3d

1326, 1327 (2d Dep’t 2017) (“[R]elief pursuant to CPLR 3025(b), which requires the movant to

include any proposed amendment or supplemental pleading with the motion, was properly

denied, as Coreslab failed to include any proposed amended pleadings”); see also Muro-Light v.

Farley, 95 A.D.3d 846, 847 (2d Dep’t 2012).

C. Veludi, Goel, and Kumar Have Waived the Defenses They Seek Leave to Assert.

47. What’s more, as Mr. Pereira noted in opposition to Veludi, Goel, and Kumar’

Motions to Dismiss (NYSCEF Doc. No. 73, Exhibit “3” at ¶¶ 16-21), Goel, Veludi and Kumar

have long since waived their right to assert lack of standing defenses and defenses founded upon

documentary evidence (collectively, the “Subject Defenses”).

48. In their Motion to Amend, Goel, Veludi and Kumar assert that, notwithstanding

the fact that CPLR 3211(e) unambiguously provides that their failure to assert the Subject

Defenses in their respective Replies to Mr. Pereira’s Third-Party Complaint and Counterclaims

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effected a waiver thereof, leave to amend is proper here, as Mr. Pereira allegedly is neither

prejudiced nor surprised by their proposed amendments. They cite wholly inapplicable case law

to do so.

49. Indeed, in Onewest, F.S.B. v. Goddard, the Second Department held that a motion

to amend was properly denied as “palpably insufficient and patently devoid of merit[.]” (131

A.D.3d 1028, 1029 (2d Dep’t 2015)). As such, while the Onewest Court did quote the language

Veludi, Goel, and Kumar advance as broadly applicable, it never applied it.

50. In Complete Mgt., Inc. v. Rubenstein, i.e., the case Onewest quotes, the

amendment was sought in connection with a motion to dismiss. (74 A.D.3d 722, 723 (2d Dep’t

2010). When that motion to dismiss was denied, the defendant moved by order to show cause

for leave to renew and amend, with the latter relief being premised on purely procedural bases,

i.e., whether a dissolved corporation is entitled to assert a claim after dissolution and the

revocation of its corporate charter. (Index No. 37608/2006, 2009 WL 8712237 (Sup. Ct., Kings

County 2009)). On appeal, the Complete Mgt. court invoked, inter alia, Bajanov v. Grossman

(36 A.D.3d 572, 573 (2d Dep’t 2007)), in which the proposed amendment was found to

conclusively serve as grounds for dismissal, in support of its granting leave to amend.

51. Likewise, Fahey v. Ontario County (44 N.Y.2d 934, 935 (1978)) related to the

denial of a defendant-Sherriff’s motion to amend its answer to assert that a plaintiff-inmate’s

claim for negligent failure to provide medical treatment was barred by the relevant statute of

limitations — which it undisputedly was. Fahey v. Ontario County, 55 A.D.2d 1034, 1034 (4th

Dep’t 1977). The instant case neither deals with a municipality’s attempt to defend against

inmates’ rights claims, nor with a claim that is undisputedly time barred.

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FILED: NASSAU COUNTY CLERK 04/07/2022 12:01 PM INDEX NO. 617853/2019
NYSCEF DOC. NO. 148 RECEIVED NYSCEF: 04/07/2022

52. In other words, there is a single thread that ties the holdings of Onewest, Complete

Mgt., Bajanov, and Fahey together: undeniable merit sufficient to sustain a dispositive motion at

the time of the motion to amend. None have even remotely analogous fact patterns to the instant

case — i.e., Veludi, Goel, and Kumar’s untimely attempt to assert long-since waived defenses

arising out of a manifestly ambiguous agreement that their employer entered into with Mr.

Pereira to protect itself against claims arising out of the fraud Veludi, Goel, and Kumar worked

against him.

53. While a court may invoke its discretion under CPLR 3025 to overcome CPLR

3211(e)’s waiver rule, were parties broadly entitled to amendment in all cases, that waiver rule

would be effectively meaningless. That is simply not the case, and Courts have repeatedly

invoked CPLR 3211(e) to find that defenses have been conclusively waived where those

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April 07, 2022

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December 20, 2019

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Motion-Secondary: Veludi Capital Strategies v. Manuel Pereira

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