Preview
FILED: KINGS COUNTY CLERK 05/19/2021 05:07 PM INDEX NO. 527036/2019
NYSCEF DOC. NO. 170 RECEIVED NYSCEF: 05/19/2021
EXHIBIT H
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NYSCEF DOC. NO. 89
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At IAS Part of the Supreme Court of New
York, beld in and for the County of Kings, at the
County Courthouse 3 dams Street,Brooklyn.
New York on the . . y ofHiMEffl5H.
December, 2020
PRESENT: HON. J .C.
....-------..4-,.-------.______ ----------x
SHAOL KOPELOWITZ, Index No, 527036f2019
ORDER TO SHOW CAUSE
Plaintiffs,
-against-
TOBY MOSKOWITZ and MICHABL a/k/a
YECHlEL LICHTENSTEIN,
Defendants.
WARNINC:
YOUR FAH,URE TO APPEAR IN COGRT MAV RESULT IN YOCR IMMEDIATE
ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.
PLEASE TAKE NOTICE THAT THE PURPOSE OF THIS HEARING18 TO PUNISH
TOBY MOSKOWITL MICHAEL LICRTENSTEiN A/K/A YECHIEL ICHTENSTEIN,
19 KENT DEVELÖPMENT LLC, 96 WYTHE ACQUISITION LLC, 215 MOORE ST
LLC, SEIGEN ACQUISITION LLC, 564 ST JOHNS LLC, AND GRAND LIVING LLC
FOR CONTEMPT OF COURT AND SUCH PUNISHMENT MAY CONS$T OF FINE,
IMPRiSONMENT OR BOTK ACCORDING TO LAW.
PLEASE TAKE NOTICE that upon the annexed affirmation of Jeffrey Fleischmann
(aplaintiff'
Esq., attorney for plaintiff j=dg-.ent creditor Shaul Kopelowitz or "Kopelowitz"),
dated December 22, 2020, by which itappears that defendants Toby Moskowitz a/k/a Toby
Moskovits and Michael Lichtensteiri a/k/g YèchieILichtenstein and non-parties 19 Kent
Developmst LLC, 96 Wythe Ae isitionLLC, 2I$ Möore St LLC, Seigett Acq=ishon LLC,
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564 St Johns LLC, and Grand living LLC (collectively, the "subperseéd parties") have without
cause or justification failed; refused and/or neglected properly and ingood faithlo respond
fullyr
to thetdhpaanas duces tecum and information subpoenas and reenisingnotices (collectively,
the "subreenas") duly issued and served upon each; and upon allof the prior pleadings and
proceedings heretofore had herein,
*
am M
LET the subpoenaed parties show cause before thisCourt atTAS Part __, Room
County'
thereof, to be held at the S-pt±pe Court of New York, Countyøf Kings, at the
Courthcase, 360 Adams Street, Brooklyn, New Tork.on the day of January 2021 at 9:3Ó
a.m., or as soon thereafter as counsel can be heard, why an order should not be granted and.
4 a5
entered herein;. Arre--- r
1. an each of the suhpaa ed parties in ec‡tempt of court for
Issúing order.finding
willfully and/or
r.en.1sing neglecting to obey the subpoenas;
2. Issuing a conditicñal order of cantampt and compelling each of the subpocaäed
parties to raspgnd in toto and infullcompliance with the subpüenas within two (2) weeks of this
Coort's hearing and determination of this order to show cause or by a date certain as directed by
the Court, including, but not limitcd to, (a)Cfullyrespanding to the information subpoenas and
de=6nstrating fullthpliance wfth the restraining notices therein1 and (b)producing all
deccstients demanded by plainFf in the subpoenas;
3. plaintiff his costs and theirtèesonable attorney's
Awarding expenses, including fees,
incdiscd as a result1of the failure of the subpoenaed parties to respond, in seeking compliance
with the subpoenas, añd in ntaking this mati.on; and
4. Grañtiñg such 6ther and further reliefas this Court deems just, proper.and equitable.
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SUFFICIENT CAUSE HEREIN ALLEGED,
Le-f
4T.IS-0RDERED4hat a copy of thisOrder, together With the papers upon which itis
service
granted, be served by BV5gHigh5mUI1 r personal asNsayupon each of the non-party súbpoenaéd
parties on the 2021,.and els:t=ñic on the defendants-
on before day of January, by filing
the electronic filing system (NYSCEF)
judgment debtors viaBi96Wts ofthe New tork State Unified.Courtssystem, and such shall be
deemed good and sufficient service; and-it-isJurther
be served and electrnhicall
eCeezts-sees e-nèived4y-plainti
..Br
ORDEREDT y shallbe served so as to he received by the
ENTER
HON· Debra Silber, J.S.C.
HON.
DEBRABLW
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------x
SHAUL KOPELOWITZ,
Plaintiff, Index No. 527036/2019
- against - AFFIRMATION OF
JEFFREY FLEISCHMANN
IN SUPPORT OF MOTION
FOR CONTEMPT AND
TOBY MOSKOVITS and MICHAEL a/k/a YECHIEL RELATED RELIEF
LICHTENSTEIN,
Defendants.
---------------------------------------------------------------x
JEFFREY FLEISCHMANN, an attorney duly-admitted to practice law before the courts
of the State of New York, deposes and states as follows under the penalties of perjury:
1. I am counsel for plaintiff-judgment creditor Shaul Kopelowitz (“plaintiff” or
“Kopelowitz”). I submit this affirmation in support of plaintiff’s motion, pursuant to which
defendants are directed to show cause why an Order should not be granted and entered herein (a)
issuing an order finding each of defendants-judgment debtors Toby Moskowitz a/k/s Toby Moskovits
(“Moskowitz”) and Michael Lichtenstein a/k/a Yechiel Lichtenstein (“Lichtenstein”)1 and non-parties
19 Kent Development LLC, 96 Wythe Acquisition LLC, 215 Moore St LLC, Seigen Acquisition
LLC, 564 St Johns LLC, and Grand Living LLC (collectively, the “subpoenaed parties”) in contempt
of court for willfully refusing and/or neglecting to obey the subpoenas; (b) issuing a conditional order
of contempt and compelling each of the subpoenaed parties to respond in toto and in full compliance
with the subpoenas within two (2) weeks of this Court’s hearing and determination of this order to
1
Moskowitz and Lichtenstein shall be referred to herein collectively as the “defendants-judgment
debtors.”
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show cause or by a date certain as directed by the Court, including, but not limited to, (a) fully
responding to the information subpoenas and demonstrating full compliance with the restraining
notices therein; and (b) producing the documents demanded by plaintiff in the subpoenas; (c)
awarding plaintiff his costs and expenses, including their reasonable attorney’s fees, incurred as a
result of the failure of the subpoenaed parties to respond, in seeking compliance with the subpoenas,
and in making this motion; and (d) for such other and further relief as this Court deems just, proper
and equitable.
2. I have personal knowledge of the matters discussed herein except with respect to those
matters stated upon information and belief, and, regarding those matters, it is based on my
communications with individuals with knowledge, my review of documents, and my general
participation as counsel for plaintiffs in this matter and all subsequent proceedings directed toward
enforcing their $3,076,907.71 judgment against the defendant-judgment debtors.
3. As part of ongoing efforts to enforce this judgment, my office served subpoenas duces
tecum and information subpoenas with retraining notices on defendants-judgment debtors and on
each of the other subpoenaed parties that generally seek information respecting the assets and
holdings of, and other financial information about, each of the judgment-debtors.
4. Upon information and belief, each of the subpoenaed parties (other than Moskowitz
and Lichtenstein) is owned and/or controlled, in whole or in part, by Moskowitz and/or Lichtenstein.
5. However, Moskowitz and Lichtenstein have done everything in their power to avoid
paying their debt to Kopelowitz and to fight the properly entered judgment. This now includes
obstructing Kopelowitz’s ability to obtain the documents and information sought by the subpoenas.
6. The subpoenas were all duly and properly served on each of the subpoenaed parties
and they have been ignored. The drastic relief requested by plaintiff in the form of a contempt order
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is mandated based on their failure timely to respond to the subpoenas, which is part and parcel of the
ongoing obstruction.
7. However, because it is the information that is of primary importance to plaintiff in his
efforts to enforce the judgment, he requests a conditional order directing that each of the subpoenaed
parties, including the defendants-judgment debtors, fully respond to the subpoenas by a date certain.
Failing this, both Moskowitz and Lichtenstein should be subject to all appropriate relief that may be
issued in connection with a contempt order, including imprisonment.
Relevant Background
8. In short, Kopelowitz loaned $6,000,000.00 plus interest and fees to the defendants-
judgment debtors and entered into an agreement in connection therewith. The loan amount under the
agreement matured and defendants-judgment debtors failed to pay back any portion of the loan or any
portion of the fees and accrued interest. Thus, defendants-judgment debtors defaulted in their
obligation to repay the sums borrowed from Kopelowitz.
9. As a result of their default, each of Moskowitz and Lichtenstein agreed to and did sign a
judgment by confession in favor of Kopelowitz. Because payment on the outstanding obligation had
not been paid, petitioner submitted the judgment by confession with this Court and, on December 13,
2019, judgment was entered by the Clerk of the Court in the total sum of $6,350,225.00. A copy of the
Confession of Judgment is annexed hereto as Exhibit A.
10. Based on the partial satisfaction of judgment, Kopelowitz commenced this special
proceeding by filing a petition seeking what he believed to be the remaining balance in the sum of
$3,258,850.83. See Petition, Exhibit B.
11. Even though they are fully aware of their debt to Kopelowitz, defendants-judgment
debtors vigorously opposed and moved to dismiss the petition. As a result of the parties’ dispute
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respecting the amount that remains due and owing of the $6,350,225.00 judgment, Hon. Leon
Ruchelsman, J.S.C. appointed a referee to hear and determine this issue.
12. A hearing took place and by Report of Referee dated October 23, 2020 and filed on
November 5, 2020, the referee determined that the balance due on the Kings County Judgment is
$3,076,907.71 as of October 23, 2020, and that interest will accrue thereafter in the amount of
$697.66 per day through the date of payment. See Exhibit C (Report of Referee).
13. Thus, all of the defendants-judgments debtors’ arguments that the judgment had been
wrongfully entered and that there are no monies due and owing by them to Kopelowitz were soundly
rejected.
14. By decision and order dated and filed November 5, 2020, Justice Ruchelsman ruled
that “[t]he court hereby adopts the conclusions reached by the referee.” As such, he further ruled:
“The precise amount owed on the confession of judgment is $3,076,907.71.” See Exhibit D
(November 5, 2020 Kings County Order). By this ruling, Justice Ruchelsman conclusively resolved
the issue of the amount of the judgment that remains due and owing by the Judgment Debtors herein.
The Subpoenas
15. On November 12, 2020, a subpoena duces tecum was served on each of Moskowitz,
Lichtenstein and the other subpoenaed parties by certified mail, return receipt requested. Copies of
the subpoenas duces tecum are annexed hereto as Exhibit E.
16. On November 12, 2020, an information subpoena and restraining notice was served on
each of Moskowitz, Lichtenstein and the other subpoenaed parties by certified mail, return receipt
requested. Copies of the subpoenas duces tecum are annexed hereto as Exhibit F.
17. Copies of the U.S. Certified Mail returns receipts are annexed hereto as Exhibit G.
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18. Each of the subpoenas duly and properly identified the nature of this action and the
reason(s) why the information sought therein was being requested.
19. Despite due and proper service of the subpoenas duces tecum and the information
subpoenas with restraining notice, none of the subpoenaed parties has responded.
20. By failing timely to serve responses (or any response at all), the subpoenaed parties
waived any and all potential objections. For this reason alone, the relief requested herein should be
granted in its entirety without further inquiry.
21. In any event, based on the foregoing, the subpoenaed parties indisputably are in
contempt of the subpoenas based on their failure to respond in good faith or, where applicable, to
produce documents containing the requested information. At no time prior to their respective defaults
in responding to the subpoenas did any of the subpoenaed parties serve notice objecting to the
subpoenas or move this Court to quash or for other relief based on any such objections.
22. There can be no question that Moskowitz and Lichtenstein, as parties to this special
proceeding, are required to respond to post-judgment subpoenas. The same is true with respect to
non-parties, who may be held in contempt for failure to respond to a subpoena duces tecum or to an
information subpoena. See, Idaho Potato Packers Corp. v. Hunts Point Indus. Park, Inc., 58 A.D.2d
547, 396 N.Y.S.2d 12 (1st Dep’t 1977)(affirming contempt order against non-party president of
debtor); Lipstick, Ltd. v. Grupo Tribasa, S.A. de C.V., 304 A.D.2d 482, 483, 758 N.Y.S.2d 317 (1st
Dep’t 2003)(“Sandoval can be punished for defendants' contempt, even though not a party to the
underlying action, upon such notice as the court deems appropriate and accords with due process”);
Jack Mailman & Leonard Flug DDS, P.C. v. Belvecchio, 195 Misc. 2d 275, 276, 757 N.Y.S.2d 216
(2d Dep’t 2002)(“Refusal or neglect to obey an information subpoena is punishable as a contempt of
court under CPLR 5251 and Judiciary Law § 753(5).”); Citibank, N.A. v. Anthony Lincoln-Mercury,
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Inc., 86 A.D.2d 828, 829, 447 N.Y.S.2d 262 (1st Dep’t 1982)(“The Court had the power to punish
Assalone for contempt, regardless of whether he was a party to the underlying action or not, as long
as he had … knowledge of the terms of the restraining order”); Tener v. Cremer, 89 A.D.3d 75, 83,
931 N.Y.S.2d 552 (1st Dep’t 2011)(reversing denial of plaintiff's motion to hold non-party in
contempt for failing to comply with a judicial subpoena); In re Estate of Lupoli, 275 A.D.2d 44, 714
N.Y.S.2d 497 (2d Dep’t 2000)(non-party spouse may be held in contempt for failure to respond to
information subpoena).
23. Upon information and belief, each of the subpoenaed parties has information regarding
the defendants-judgment debtors’ assets and liabilities (individually and in connection with their
respective LLC interests – including in the LLCs themselves), the location of those assets, and/or
financial or other resources that are relevant, material and necessary for plaintiffs to discover in order
to enforce the Judgment. See CPLR §5224; Sigety v. Abrams, 632 F.2d 969, 975 (2d Cir. 1980).
Their failure to respond “defeats, impairs, impedes [and] prejudices” plaintiffs’ rights, which is all
that is required under Judiciary Law §753 to obtain the relief requested herein. See also, Great Neck
Pennysaver, Inc. v. Central Nassau Publications Inc., 65 A.D.2d 616, 617, 409 N.Y.S.2d 544, 546
(2d Dep’t 1978).
24. As a result of the foregoing, it is respectfully submitted that this Court must find each
of the subpoenaed parties in contempt of court for willfully failing and/or neglecting to obey the
subpoenas, that it impose a fine against each for no less than the statutory amount of damages
sustained by reason of failure to comply, and that it issue a warrant for the arrest of Moskowitz and
Lichtenstein and a representative of each of the other subpoenaed parties to the extent that neither
Moskowitz nor Lichtenstein is a member or other representative of those particular entities. See
Riverside Capital Advisers, Inc v. First Secured Capital Corporation, 43 A.D.3d 1025, 844 N.Y.S.2d
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327 (2d Dep’t 2007)(trial court’s issuance of warrants for arrest of nonparties did not violate
nonparties’ rights to due process where they had the opportunity to contest their compliance with
prior court orders respecting the production of documents).
25. Alternatively, because the enforcement of the Judgment requires the information
sought by the subpoenas, it is respectfully submitted that this Court should first issue a conditional
order of contempt and compel the subpoenaed parties to respond to the subpoenas in order to bring
themselves into full compliance with the subpoenas within two (2) weeks of this Court’s
determination of this motion, or by a date certain as directed by this Court, subject to fine and arrest.
26. In either case, this Court should also award plaintiff his reasonable costs and expenses,
including, but not limited to, his reasonable attorneys’ fees incurred on this motion. See, Judiciary
Law § 773; Jamie v. Jamie, 19 A.D.3d 330, 798 N.Y.S.2d 36 (1st Dep’t 2005).
27. Finally, as the subpoenaed parties failed timely to object to the subpoenas, all
objections that they may be inclined to assert in their amended responses, if any, have been waived
and should be rejected.
28. There has been no prior application made for the relief requested herein.
WHEREFORE, it is respectfully requested that this Court:
A. Issue an order finding defendant-judgment debtorToby Moskovits a/k/a Toby Moskowitz,
defendant-judgment debtor Michael Lichtenstein a/k/a Yechiel Lichtenstein, 19 Kent Development
LLC, 96 Wythe Acquisition LLC, 215 Moore St LLC, Seigen Acquisition LLC, 564 St Johns LLC,
and Grand Living LLC in contempt of court for willfully refusing and/or neglecting to obey and
comply with the subpoenas;
29. In the alternative, issue a conditional order of contempt and compelling each of
Moskowitz, Lichtenstein, 19 Kent Development LLC, 96 Wythe Acquisition LLC, 215 Moore St
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LLC, Seigen Acquisition LLC, 564 St Johns LLC, and Grand Living LLC to respond in toto and in
full compliance with the subpoenas within two (2) weeks of this Court’s hearing and determination of
this order to show cause or by a date certain as directed by the Court, including, but not limited to, (a)
fully responding to the information subpoenas and demonstrating full compliance with the restraining
notices therein; and (b) producing all documents demanded by plaintiff in the subpoenas;
B. Award plaintiff-judgment creditor his costs and expenses, including his reasonable
attorney’s fees incurred as a result of the failure of the subpoenaed parties to respond to the
subpoenas, in seeking compliance with the subpoenas, and in making this motion;
C. Grant such other and further relief as it deems just, proper and equitable.
Dated: New York, New York
December 22, 2020 /s/ Jeffrey Fleischmann
Jeffrey Fleischmann
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Preview
FILED: KINGS COUNTY CLERK 05/19/2021 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 170 RECEIVED NYSCEF: 05/19/2021 EXHIBIT H FILED: KINGS COUNTY CLERK 12/30/2020 05/19/2021 02:18 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 89 170 RECEIVED NYSCEF: 12/30/2020 05/19/2021 At IAS Part of the Supreme Court of New York, beld in and for the County of Kings, at the County Courthouse 3 dams Street,Brooklyn. New York on the . . y ofHiMEffl5H. December, 2020 PRESENT: HON. J .C. ....-------..4-,.-------.______ ----------x SHAOL KOPELOWITZ, Index No, 527036f2019 ORDER TO SHOW CAUSE Plaintiffs, -against- TOBY MOSKOWITZ and MICHABL a/k/a YECHlEL LICHTENSTEIN, Defendants. WARNINC: YOUR FAH,URE TO APPEAR IN COGRT MAV RESULT IN YOCR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT. PLEASE TAKE NOTICE THAT THE PURPOSE OF THIS HEARING18 TO PUNISH TOBY MOSKOWITL MICHAEL LICRTENSTEiN A/K/A YECHIEL ICHTENSTEIN, 19 KENT DEVELÖPMENT LLC, 96 WYTHE ACQUISITION LLC, 215 MOORE ST LLC, SEIGEN ACQUISITION LLC, 564 ST JOHNS LLC, AND GRAND LIVING LLC FOR CONTEMPT OF COURT AND SUCH PUNISHMENT MAY CONS$T OF FINE, IMPRiSONMENT OR BOTK ACCORDING TO LAW. PLEASE TAKE NOTICE that upon the annexed affirmation of Jeffrey Fleischmann (aplaintiff' Esq., attorney for plaintiff j=dg-.ent creditor Shaul Kopelowitz or "Kopelowitz"), dated December 22, 2020, by which itappears that defendants Toby Moskowitz a/k/a Toby Moskovits and Michael Lichtensteiri a/k/g YèchieILichtenstein and non-parties 19 Kent Developmst LLC, 96 Wythe Ae isitionLLC, 2I$ Möore St LLC, Seigett Acq=ishon LLC, 1 of 3 FILED: KINGS COUNTY CLERK 12/30/2020 05/19/2021 02:18 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 89 170 RECEIVED NYSCEF: 12/30/2020 05/19/2021 564 St Johns LLC, and Grand living LLC (collectively, the "subperseéd parties") have without cause or justification failed; refused and/or neglected properly and ingood faithlo respond fullyr to thetdhpaanas duces tecum and information subpoenas and reenisingnotices (collectively, the "subreenas") duly issued and served upon each; and upon allof the prior pleadings and proceedings heretofore had herein, * am M LET the subpoenaed parties show cause before thisCourt atTAS Part __, Room County' thereof, to be held at the S-pt±pe Court of New York, Countyøf Kings, at the Courthcase, 360 Adams Street, Brooklyn, New Tork.on the day of January 2021 at 9:3Ó a.m., or as soon thereafter as counsel can be heard, why an order should not be granted and. 4 a5 entered herein;. Arre--- r 1. an each of the suhpaa ed parties in ec‡tempt of court for Issúing order.finding willfully and/or r.en.1sing neglecting to obey the subpoenas; 2. Issuing a conditicñal order of cantampt and compelling each of the subpocaäed parties to raspgnd in toto and infullcompliance with the subpüenas within two (2) weeks of this Coort's hearing and determination of this order to show cause or by a date certain as directed by the Court, including, but not limitcd to, (a)Cfullyrespanding to the information subpoenas and de=6nstrating fullthpliance wfth the restraining notices therein1 and (b)producing all deccstients demanded by plainFf in the subpoenas; 3. plaintiff his costs and theirtèesonable attorney's Awarding expenses, including fees, incdiscd as a result1of the failure of the subpoenaed parties to respond, in seeking compliance with the subpoenas, añd in ntaking this mati.on; and 4. Grañtiñg such 6ther and further reliefas this Court deems just, proper.and equitable. 2 of 3 FILED: KINGS COUNTY CLERK 12/30/2020 05/19/2021 02:18 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 89 170 RECEIVED NYSCEF: 12/30/2020 05/19/2021 SUFFICIENT CAUSE HEREIN ALLEGED, Le-f 4T.IS-0RDERED4hat a copy of thisOrder, together With the papers upon which itis service granted, be served by BV5gHigh5mUI1 r personal asNsayupon each of the non-party súbpoenaéd parties on the 2021,.and els:t=ñic on the defendants- on before day of January, by filing the electronic filing system (NYSCEF) judgment debtors viaBi96Wts ofthe New tork State Unified.Courtssystem, and such shall be deemed good and sufficient service; and-it-isJurther be served and electrnhicall eCeezts-sees e-nèived4y-plainti ..Br ORDEREDT y shallbe served so as to he received by the ENTER HON· Debra Silber, J.S.C. HON. DEBRABLW 3 of 3 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------x SHAUL KOPELOWITZ, Plaintiff, Index No. 527036/2019 - against - AFFIRMATION OF JEFFREY FLEISCHMANN IN SUPPORT OF MOTION FOR CONTEMPT AND TOBY MOSKOVITS and MICHAEL a/k/a YECHIEL RELATED RELIEF LICHTENSTEIN, Defendants. ---------------------------------------------------------------x JEFFREY FLEISCHMANN, an attorney duly-admitted to practice law before the courts of the State of New York, deposes and states as follows under the penalties of perjury: 1. I am counsel for plaintiff-judgment creditor Shaul Kopelowitz (“plaintiff” or “Kopelowitz”). I submit this affirmation in support of plaintiff’s motion, pursuant to which defendants are directed to show cause why an Order should not be granted and entered herein (a) issuing an order finding each of defendants-judgment debtors Toby Moskowitz a/k/s Toby Moskovits (“Moskowitz”) and Michael Lichtenstein a/k/a Yechiel Lichtenstein (“Lichtenstein”)1 and non-parties 19 Kent Development LLC, 96 Wythe Acquisition LLC, 215 Moore St LLC, Seigen Acquisition LLC, 564 St Johns LLC, and Grand Living LLC (collectively, the “subpoenaed parties”) in contempt of court for willfully refusing and/or neglecting to obey the subpoenas; (b) issuing a conditional order of contempt and compelling each of the subpoenaed parties to respond in toto and in full compliance with the subpoenas within two (2) weeks of this Court’s hearing and determination of this order to 1 Moskowitz and Lichtenstein shall be referred to herein collectively as the “defendants-judgment debtors.” 1 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 show cause or by a date certain as directed by the Court, including, but not limited to, (a) fully responding to the information subpoenas and demonstrating full compliance with the restraining notices therein; and (b) producing the documents demanded by plaintiff in the subpoenas; (c) awarding plaintiff his costs and expenses, including their reasonable attorney’s fees, incurred as a result of the failure of the subpoenaed parties to respond, in seeking compliance with the subpoenas, and in making this motion; and (d) for such other and further relief as this Court deems just, proper and equitable. 2. I have personal knowledge of the matters discussed herein except with respect to those matters stated upon information and belief, and, regarding those matters, it is based on my communications with individuals with knowledge, my review of documents, and my general participation as counsel for plaintiffs in this matter and all subsequent proceedings directed toward enforcing their $3,076,907.71 judgment against the defendant-judgment debtors. 3. As part of ongoing efforts to enforce this judgment, my office served subpoenas duces tecum and information subpoenas with retraining notices on defendants-judgment debtors and on each of the other subpoenaed parties that generally seek information respecting the assets and holdings of, and other financial information about, each of the judgment-debtors. 4. Upon information and belief, each of the subpoenaed parties (other than Moskowitz and Lichtenstein) is owned and/or controlled, in whole or in part, by Moskowitz and/or Lichtenstein. 5. However, Moskowitz and Lichtenstein have done everything in their power to avoid paying their debt to Kopelowitz and to fight the properly entered judgment. This now includes obstructing Kopelowitz’s ability to obtain the documents and information sought by the subpoenas. 6. The subpoenas were all duly and properly served on each of the subpoenaed parties and they have been ignored. The drastic relief requested by plaintiff in the form of a contempt order 2 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 is mandated based on their failure timely to respond to the subpoenas, which is part and parcel of the ongoing obstruction. 7. However, because it is the information that is of primary importance to plaintiff in his efforts to enforce the judgment, he requests a conditional order directing that each of the subpoenaed parties, including the defendants-judgment debtors, fully respond to the subpoenas by a date certain. Failing this, both Moskowitz and Lichtenstein should be subject to all appropriate relief that may be issued in connection with a contempt order, including imprisonment. Relevant Background 8. In short, Kopelowitz loaned $6,000,000.00 plus interest and fees to the defendants- judgment debtors and entered into an agreement in connection therewith. The loan amount under the agreement matured and defendants-judgment debtors failed to pay back any portion of the loan or any portion of the fees and accrued interest. Thus, defendants-judgment debtors defaulted in their obligation to repay the sums borrowed from Kopelowitz. 9. As a result of their default, each of Moskowitz and Lichtenstein agreed to and did sign a judgment by confession in favor of Kopelowitz. Because payment on the outstanding obligation had not been paid, petitioner submitted the judgment by confession with this Court and, on December 13, 2019, judgment was entered by the Clerk of the Court in the total sum of $6,350,225.00. A copy of the Confession of Judgment is annexed hereto as Exhibit A. 10. Based on the partial satisfaction of judgment, Kopelowitz commenced this special proceeding by filing a petition seeking what he believed to be the remaining balance in the sum of $3,258,850.83. See Petition, Exhibit B. 11. Even though they are fully aware of their debt to Kopelowitz, defendants-judgment debtors vigorously opposed and moved to dismiss the petition. As a result of the parties’ dispute 3 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 respecting the amount that remains due and owing of the $6,350,225.00 judgment, Hon. Leon Ruchelsman, J.S.C. appointed a referee to hear and determine this issue. 12. A hearing took place and by Report of Referee dated October 23, 2020 and filed on November 5, 2020, the referee determined that the balance due on the Kings County Judgment is $3,076,907.71 as of October 23, 2020, and that interest will accrue thereafter in the amount of $697.66 per day through the date of payment. See Exhibit C (Report of Referee). 13. Thus, all of the defendants-judgments debtors’ arguments that the judgment had been wrongfully entered and that there are no monies due and owing by them to Kopelowitz were soundly rejected. 14. By decision and order dated and filed November 5, 2020, Justice Ruchelsman ruled that “[t]he court hereby adopts the conclusions reached by the referee.” As such, he further ruled: “The precise amount owed on the confession of judgment is $3,076,907.71.” See Exhibit D (November 5, 2020 Kings County Order). By this ruling, Justice Ruchelsman conclusively resolved the issue of the amount of the judgment that remains due and owing by the Judgment Debtors herein. The Subpoenas 15. On November 12, 2020, a subpoena duces tecum was served on each of Moskowitz, Lichtenstein and the other subpoenaed parties by certified mail, return receipt requested. Copies of the subpoenas duces tecum are annexed hereto as Exhibit E. 16. On November 12, 2020, an information subpoena and restraining notice was served on each of Moskowitz, Lichtenstein and the other subpoenaed parties by certified mail, return receipt requested. Copies of the subpoenas duces tecum are annexed hereto as Exhibit F. 17. Copies of the U.S. Certified Mail returns receipts are annexed hereto as Exhibit G. 4 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 18. Each of the subpoenas duly and properly identified the nature of this action and the reason(s) why the information sought therein was being requested. 19. Despite due and proper service of the subpoenas duces tecum and the information subpoenas with restraining notice, none of the subpoenaed parties has responded. 20. By failing timely to serve responses (or any response at all), the subpoenaed parties waived any and all potential objections. For this reason alone, the relief requested herein should be granted in its entirety without further inquiry. 21. In any event, based on the foregoing, the subpoenaed parties indisputably are in contempt of the subpoenas based on their failure to respond in good faith or, where applicable, to produce documents containing the requested information. At no time prior to their respective defaults in responding to the subpoenas did any of the subpoenaed parties serve notice objecting to the subpoenas or move this Court to quash or for other relief based on any such objections. 22. There can be no question that Moskowitz and Lichtenstein, as parties to this special proceeding, are required to respond to post-judgment subpoenas. The same is true with respect to non-parties, who may be held in contempt for failure to respond to a subpoena duces tecum or to an information subpoena. See, Idaho Potato Packers Corp. v. Hunts Point Indus. Park, Inc., 58 A.D.2d 547, 396 N.Y.S.2d 12 (1st Dep’t 1977)(affirming contempt order against non-party president of debtor); Lipstick, Ltd. v. Grupo Tribasa, S.A. de C.V., 304 A.D.2d 482, 483, 758 N.Y.S.2d 317 (1st Dep’t 2003)(“Sandoval can be punished for defendants' contempt, even though not a party to the underlying action, upon such notice as the court deems appropriate and accords with due process”); Jack Mailman & Leonard Flug DDS, P.C. v. Belvecchio, 195 Misc. 2d 275, 276, 757 N.Y.S.2d 216 (2d Dep’t 2002)(“Refusal or neglect to obey an information subpoena is punishable as a contempt of court under CPLR 5251 and Judiciary Law § 753(5).”); Citibank, N.A. v. Anthony Lincoln-Mercury, 5 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 Inc., 86 A.D.2d 828, 829, 447 N.Y.S.2d 262 (1st Dep’t 1982)(“The Court had the power to punish Assalone for contempt, regardless of whether he was a party to the underlying action or not, as long as he had … knowledge of the terms of the restraining order”); Tener v. Cremer, 89 A.D.3d 75, 83, 931 N.Y.S.2d 552 (1st Dep’t 2011)(reversing denial of plaintiff's motion to hold non-party in contempt for failing to comply with a judicial subpoena); In re Estate of Lupoli, 275 A.D.2d 44, 714 N.Y.S.2d 497 (2d Dep’t 2000)(non-party spouse may be held in contempt for failure to respond to information subpoena). 23. Upon information and belief, each of the subpoenaed parties has information regarding the defendants-judgment debtors’ assets and liabilities (individually and in connection with their respective LLC interests – including in the LLCs themselves), the location of those assets, and/or financial or other resources that are relevant, material and necessary for plaintiffs to discover in order to enforce the Judgment. See CPLR §5224; Sigety v. Abrams, 632 F.2d 969, 975 (2d Cir. 1980). Their failure to respond “defeats, impairs, impedes [and] prejudices” plaintiffs’ rights, which is all that is required under Judiciary Law §753 to obtain the relief requested herein. See also, Great Neck Pennysaver, Inc. v. Central Nassau Publications Inc., 65 A.D.2d 616, 617, 409 N.Y.S.2d 544, 546 (2d Dep’t 1978). 24. As a result of the foregoing, it is respectfully submitted that this Court must find each of the subpoenaed parties in contempt of court for willfully failing and/or neglecting to obey the subpoenas, that it impose a fine against each for no less than the statutory amount of damages sustained by reason of failure to comply, and that it issue a warrant for the arrest of Moskowitz and Lichtenstein and a representative of each of the other subpoenaed parties to the extent that neither Moskowitz nor Lichtenstein is a member or other representative of those particular entities. See Riverside Capital Advisers, Inc v. First Secured Capital Corporation, 43 A.D.3d 1025, 844 N.Y.S.2d 6 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 327 (2d Dep’t 2007)(trial court’s issuance of warrants for arrest of nonparties did not violate nonparties’ rights to due process where they had the opportunity to contest their compliance with prior court orders respecting the production of documents). 25. Alternatively, because the enforcement of the Judgment requires the information sought by the subpoenas, it is respectfully submitted that this Court should first issue a conditional order of contempt and compel the subpoenaed parties to respond to the subpoenas in order to bring themselves into full compliance with the subpoenas within two (2) weeks of this Court’s determination of this motion, or by a date certain as directed by this Court, subject to fine and arrest. 26. In either case, this Court should also award plaintiff his reasonable costs and expenses, including, but not limited to, his reasonable attorneys’ fees incurred on this motion. See, Judiciary Law § 773; Jamie v. Jamie, 19 A.D.3d 330, 798 N.Y.S.2d 36 (1st Dep’t 2005). 27. Finally, as the subpoenaed parties failed timely to object to the subpoenas, all objections that they may be inclined to assert in their amended responses, if any, have been waived and should be rejected. 28. There has been no prior application made for the relief requested herein. WHEREFORE, it is respectfully requested that this Court: A. Issue an order finding defendant-judgment debtorToby Moskovits a/k/a Toby Moskowitz, defendant-judgment debtor Michael Lichtenstein a/k/a Yechiel Lichtenstein, 19 Kent Development LLC, 96 Wythe Acquisition LLC, 215 Moore St LLC, Seigen Acquisition LLC, 564 St Johns LLC, and Grand Living LLC in contempt of court for willfully refusing and/or neglecting to obey and comply with the subpoenas; 29. In the alternative, issue a conditional order of contempt and compelling each of Moskowitz, Lichtenstein, 19 Kent Development LLC, 96 Wythe Acquisition LLC, 215 Moore St 7 of 8 FILED: KINGS COUNTY CLERK 12/23/2020 05/19/2021 05:01 05:07 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 80 170 RECEIVED NYSCEF: 12/23/2020 05/19/2021 LLC, Seigen Acquisition LLC, 564 St Johns LLC, and Grand Living LLC to respond in toto and in full compliance with the subpoenas within two (2) weeks of this Court’s hearing and determination of this order to show cause or by a date certain as directed by the Court, including, but not limited to, (a) fully responding to the information subpoenas and demonstrating full compliance with the restraining notices therein; and (b) producing all documents demanded by plaintiff in the subpoenas; B. Award plaintiff-judgment creditor his costs and expenses, including his reasonable attorney’s fees incurred as a result of the failure of the subpoenaed parties to respond to the subpoenas, in seeking compliance with the subpoenas, and in making this motion; C. Grant such other and further relief as it deems just, proper and equitable. Dated: New York, New York December 22, 2020 /s/ Jeffrey Fleischmann Jeffrey Fleischmann 8 of 8