Preview
FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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K.Y.W. ENTERPRISE TRUST, Index No. 653071/17
Plaintiff,
AFFIRMATION
IN SUPPORT
-- against --
LES 106 RIV, LLC,
Defendant.
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ABE GEORGE, an attorney admitted to practice in the courts of the State of New York,
affirms under penalty of perjury pursuant to CPLR § 2106 that the following is true and correct to
the extent of his knowledge:
1. I am the attorney for the Defendant in the above-captioned action and as such am
fully familiar with the facts and circumstances thereof.
2. I make this Affirmation to demonstrate that the Defendant has made good-faith
efforts to resolve the discovery dispute raised in the instant motion for sanctions pursuant to CPLR
§ 3126.
3. The sources for the allegations of fact made herein include review of the case file
and review of other pertinent documents.
4. The Plaintiff commenced this action on June 6, 2017 and issue was fully joined in
August 2017. See Exhibits A-C.
5. Between August 2017 and November 6, 2019, a preliminary conference and three
compliance conferences were held, resulting in four (4) orders for the Plaintiff to appear for
deposition. See Exhibit G, ¶ 6.
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6. At one such conference in October 2018, Defendant hand-served discovery
demands on Plaintiff’s counsel at a compliance conference. See Exhibit D. Plaintiff has never
responded to those demands.
7. In contrast, Plaintiff’s demands have been fully and thoroughly responded to by
Defendant. See Exhibit E.
8. At the last compliance conference on January 16, 2020, this Court stated that its
prior order had not been complied with and that the parties were to appear for deposition on or
before March 31, 2020. See Exhibit G(1).
9. On June 30, 2021, after still having provided no discovery and having never
appeared for deposition, Plaintiff filed a non-jury note of issue. See Exhibit F.
10. As noted in a subsequent motion to strike the Note of Issue, the undersigned counsel
had sent more than 64 emails to Plaintiff’s counsel to move the case along with depositions; and
that he had sent certified letters to Plaintiff’s counsel demanding that Plaintiff prosecute this matter
but had received no reply. See Exhibit G, Affirmation in Support, ¶¶ 8-13; see also Exhibits G(2)
through G(4) (showing the 64 emails, the certified letter, and the return receipt).
11. In opposition to this motion, which primarily cited difficulties relating to the Covid-
19 pandemic, Plaintiff advised inter alia that its principal, Sam Wu, was deceased, having died in
approximately April 2020. See Exhibit H, ¶ 19. Although Plaintiff indicated that other witnesses
might have relevant knowledge, it did not name any such witnesses, nor did it indicate why Mr.
Wu’s deposition could not have been completed remotely before his death and/or why a remote
deposition of an alternative witness could not have been completed before the Note of Issue.
12. By order entered October 1, 2021, this Court granted the motion to the extent of
striking the Note of Issue and directing that all further discovery be completed within 60 days from
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service of a copy of such order with notice of entry. See Exhibit I at 3.
13. Thereafter, during November and December 2021, the undersigned engaged in a
chain of email communications with Plaintiff’s counsel regarding possible settlement as well as
deposition dates. See Exhibit J. At one point, Plaintiff’s counsel represented that his client was
out of the country and that he was waiting to hear back from him, and at a later point, that he had
still not heard from his client. Id. Ultimately, on December 15, 2021, with a status conference
upcoming, the parties submitted a scheduling order setting deposition dates. Id.
14. By further order entered after the status conference on December 16, 2021, this
Court ordered that demands and responsive disclosures were to be completed by February 15,
2022, that the Plaintiff’s deposition was to be held by March 15, 2022, and that Defendant’s
deposition was to be held by April 15, 2022. See Exhibit K at 1.1 The order specified that “these
dates [were] final and cannot be changed without prior approval of the Court.” Id. Further,
dispositive motions were to be filed within 60 days of the Note of Issue. Id. at 2.
15. The Plaintiff still did not provide any discovery or appear for deposition following
the December 16, 2021 conference, and has not done so to date.
16. On or about July 2, 2022, your undersigned sent a demand to prosecute, pursuant
to CPLR 3216(b) (See Exhibit L: Proof of Mailing) whereupon on July 8, 2022, Plaintiff re-filed
a non-jury Note of Issue. See Exhibit M.
17. Defendant therefore submits that it is obvious that Plaintiff has willfully and
contumaciously failed to appear for deposition despite numerous court orders and requests and
despite the best efforts of the undersigned counsel, and that he has not provided a good and
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The order stated “2021” rather than “2022” for all the above dates, but given that the
conference was held on December 16, 2021 and the resulting order was entered on December 17,
2021, it is clear that the intended deadlines were in 2022.
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sufficient explanation for such failure.
WHEREFORE, in light of the foregoing, this Court should find that the discovery dispute
raised in this motion is properly before it.
Dated: New York, NY
September 5, 2022
/s/ Abe George___
ABE GEORGE
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CERTIFICATE OF WORD COUNT
The undersigned counsel hereby certifies pursuant to 22 NYCRR § 202.8-b(c) that this
Affirmation complies with 22 NYCRR § 202.8-b(a)(i), in that it contains 6,218 words exclusive
of the caption and signature block thereof.
Dated: New York, NY
September 5, 2022
/s/ Abe George_
ABE GEORGE
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Preview
FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------------X K.Y.W. ENTERPRISE TRUST, Index No. 653071/17 Plaintiff, AFFIRMATION IN SUPPORT -- against -- LES 106 RIV, LLC, Defendant. ----------------------------------------------------------------------------X ABE GEORGE, an attorney admitted to practice in the courts of the State of New York, affirms under penalty of perjury pursuant to CPLR § 2106 that the following is true and correct to the extent of his knowledge: 1. I am the attorney for the Defendant in the above-captioned action and as such am fully familiar with the facts and circumstances thereof. 2. I make this Affirmation to demonstrate that the Defendant has made good-faith efforts to resolve the discovery dispute raised in the instant motion for sanctions pursuant to CPLR § 3126. 3. The sources for the allegations of fact made herein include review of the case file and review of other pertinent documents. 4. The Plaintiff commenced this action on June 6, 2017 and issue was fully joined in August 2017. See Exhibits A-C. 5. Between August 2017 and November 6, 2019, a preliminary conference and three compliance conferences were held, resulting in four (4) orders for the Plaintiff to appear for deposition. See Exhibit G, ¶ 6. 1 1 of 5 FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022 6. At one such conference in October 2018, Defendant hand-served discovery demands on Plaintiff’s counsel at a compliance conference. See Exhibit D. Plaintiff has never responded to those demands. 7. In contrast, Plaintiff’s demands have been fully and thoroughly responded to by Defendant. See Exhibit E. 8. At the last compliance conference on January 16, 2020, this Court stated that its prior order had not been complied with and that the parties were to appear for deposition on or before March 31, 2020. See Exhibit G(1). 9. On June 30, 2021, after still having provided no discovery and having never appeared for deposition, Plaintiff filed a non-jury note of issue. See Exhibit F. 10. As noted in a subsequent motion to strike the Note of Issue, the undersigned counsel had sent more than 64 emails to Plaintiff’s counsel to move the case along with depositions; and that he had sent certified letters to Plaintiff’s counsel demanding that Plaintiff prosecute this matter but had received no reply. See Exhibit G, Affirmation in Support, ¶¶ 8-13; see also Exhibits G(2) through G(4) (showing the 64 emails, the certified letter, and the return receipt). 11. In opposition to this motion, which primarily cited difficulties relating to the Covid- 19 pandemic, Plaintiff advised inter alia that its principal, Sam Wu, was deceased, having died in approximately April 2020. See Exhibit H, ¶ 19. Although Plaintiff indicated that other witnesses might have relevant knowledge, it did not name any such witnesses, nor did it indicate why Mr. Wu’s deposition could not have been completed remotely before his death and/or why a remote deposition of an alternative witness could not have been completed before the Note of Issue. 12. By order entered October 1, 2021, this Court granted the motion to the extent of striking the Note of Issue and directing that all further discovery be completed within 60 days from 2 2 of 5 FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022 service of a copy of such order with notice of entry. See Exhibit I at 3. 13. Thereafter, during November and December 2021, the undersigned engaged in a chain of email communications with Plaintiff’s counsel regarding possible settlement as well as deposition dates. See Exhibit J. At one point, Plaintiff’s counsel represented that his client was out of the country and that he was waiting to hear back from him, and at a later point, that he had still not heard from his client. Id. Ultimately, on December 15, 2021, with a status conference upcoming, the parties submitted a scheduling order setting deposition dates. Id. 14. By further order entered after the status conference on December 16, 2021, this Court ordered that demands and responsive disclosures were to be completed by February 15, 2022, that the Plaintiff’s deposition was to be held by March 15, 2022, and that Defendant’s deposition was to be held by April 15, 2022. See Exhibit K at 1.1 The order specified that “these dates [were] final and cannot be changed without prior approval of the Court.” Id. Further, dispositive motions were to be filed within 60 days of the Note of Issue. Id. at 2. 15. The Plaintiff still did not provide any discovery or appear for deposition following the December 16, 2021 conference, and has not done so to date. 16. On or about July 2, 2022, your undersigned sent a demand to prosecute, pursuant to CPLR 3216(b) (See Exhibit L: Proof of Mailing) whereupon on July 8, 2022, Plaintiff re-filed a non-jury Note of Issue. See Exhibit M. 17. Defendant therefore submits that it is obvious that Plaintiff has willfully and contumaciously failed to appear for deposition despite numerous court orders and requests and despite the best efforts of the undersigned counsel, and that he has not provided a good and 1 The order stated “2021” rather than “2022” for all the above dates, but given that the conference was held on December 16, 2021 and the resulting order was entered on December 17, 2021, it is clear that the intended deadlines were in 2022. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022 sufficient explanation for such failure. WHEREFORE, in light of the foregoing, this Court should find that the discovery dispute raised in this motion is properly before it. Dated: New York, NY September 5, 2022 /s/ Abe George___ ABE GEORGE 4 4 of 5 FILED: NEW YORK COUNTY CLERK 09/06/2022 07:14 PM INDEX NO. 653071/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/06/2022 CERTIFICATE OF WORD COUNT The undersigned counsel hereby certifies pursuant to 22 NYCRR § 202.8-b(c) that this Affirmation complies with 22 NYCRR § 202.8-b(a)(i), in that it contains 6,218 words exclusive of the caption and signature block thereof. Dated: New York, NY September 5, 2022 /s/ Abe George_ ABE GEORGE 5 5 of 5