Preview
FILED: NEW YORK COUNTY CLERK 01/17/2020 03:01 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ROBERT HARRIS, :
: Index No. 650175/2017
Plaintiff, :
: Hon. Nancy Bannon
vs. : Part 42
:
INTIMO, INC., NATHAN NATHAN : Mot. Seq. No. ___
individually , TOMMY NATHAN, individually, :
MORIS ZILKHA, individually, PRESTIGE : AFFIRMATION OF
EMPLOYEE ADMINISTRATORS, INC. a/k/a : DAVID B. LICHTENBERG
PRESTIGE EMPLOYEE ADMINISTRATORS, :
PRESTIGE EMPLOYEE ADMINISTRATORS :
II, INC. a/k/a PRESTIGE EMPLOYEE :
ADMINISTRATORS and JOHN DOES 1-10, :
and ABC CORPS. 1-8, fictitious names for :
persons or entities whose roles and identities :
are unknown, :
:
Defendants. :
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I, David B. Lichtenberg, Esq., an attorney admitted to practice before the Courts of the
State of York, hereby affirm as follows under the penalty of perjury:
1. I am a Partner at Fisher & Phillips LLP, attorneys for Defendants Prestige
Employee Administrators, Inc. and Prestige Employee Administrators II, Inc. (collectively
“Prestige”). In that capacity, I have personal knowledge of the facts set forth in this Affirmation,
which I submit in support of Prestige’s Motion for Summary Judgment.
2. Attached hereto as Exhibit A are true and correct copies of portions of the
deposition transcript of Plaintiff Robert Harris (“Harris”), dated November 20, 2019.
3. Attached hereto as Exhibit B are true and correct copies of portions of the
deposition transcript of Defendant Nathan Nathan, dated November 25, 2019.
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NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020
4. Attached hereto as Exhibit C are true and correct copies of portions of the
deposition transcript of Defendant Tommy Nathan, dated November 26, 2019.
5. Attached hereto as Exhibit D are true and correct copies of email chains that include
an email sent on or about December 30, 2009 from Nathan Nathan to Harris regarding certain
“salary thresholds and compensation” that they “discussed” and to which they “agreed.”
6. Attached hereto as Exhibit E are true and correct copies of search results for
Prestige Employee Administrators, Inc. and Prestige Employee Administrators II, Inc. retrieved
online from the New York State Department of State Division of Corporations.
7. Attached hereto as Exhibit F is a true and correct copy of an extract from Prestige’s
website titled, “What is a PEO?”
8. Attached hereto as Exhibit G is a Service Agreement entered into between Prestige
Employee Administrators, Inc. and Intimo, Inc. on or about April 1, 2010.
9. Attached hereto as Exhibit H are true and correct copies of portions of the
deposition transcript of Moris Zilkha, dated November 26, 2019.
10. Attached hereto as Exhibit I are true and correct copies of portions of the deposition
transcript of Ryan Yannalfo, dated November 25, 2019.
11. Attached hereto as Exhibit J is a true and correct copy of Harris’s Employee
Acknowledgment, dated March 29, 2010. Prestige produced a copy of this document in its
possession bearing the following Bates number: Prestige 000039.
12. Attached hereto as Exhibit K is a true and correct copy of Harris’s Authorization &
Waiver, which is undated. Prestige produced a copy of this document in its possession bearing the
following Bates number: Prestige 000040.
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NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020
13. Attached hereto as Exhibit L are true and correct copies of an EE Termination
Checklist and Employee Termination Report concerning Harris.
14. Attached hereto as Exhibit M are true and correct copies of Harris’s First Amended
Complaint, dated May, 31, 2019, along with the referenced exhibits that were filed with it.
15. Attached hereto as Exhibit N are true and correct copies of Harris’s original
Complaint, dated January 10, 2017, along with the referenced exhibits that were filed with it.
16. Attached hereto as Exhibit O is a true and correct copy of the Answer to First
Amended Complaint and Cross-Claims filed by Defendants Intimo, Inc., Nathan Nathan, Tommy
Nathan, and Moris Zilkha.
17. Attached hereto as Exhibit P are true and correct copies of portions of Harris’s
Motion to Amend his First Amended Complaint to add claims for fraud and promissory estoppel,
dated December 14, 2019.
18. Harris’s counsel filed the Note of Issue on December 31, 2019.
Dated: Murray Hill, NJ
January 17, 2020
David B. Lichtenberg, Esq.
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FILED: NEW YORK COUNTY CLERK 01/17/2020 03:01 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x ROBERT HARRIS, : : Index No. 650175/2017 Plaintiff, : : Hon. Nancy Bannon vs. : Part 42 : INTIMO, INC., NATHAN NATHAN : Mot. Seq. No. ___ individually , TOMMY NATHAN, individually, : MORIS ZILKHA, individually, PRESTIGE : AFFIRMATION OF EMPLOYEE ADMINISTRATORS, INC. a/k/a : DAVID B. LICHTENBERG PRESTIGE EMPLOYEE ADMINISTRATORS, : PRESTIGE EMPLOYEE ADMINISTRATORS : II, INC. a/k/a PRESTIGE EMPLOYEE : ADMINISTRATORS and JOHN DOES 1-10, : and ABC CORPS. 1-8, fictitious names for : persons or entities whose roles and identities : are unknown, : : Defendants. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x I, David B. Lichtenberg, Esq., an attorney admitted to practice before the Courts of the State of York, hereby affirm as follows under the penalty of perjury: 1. I am a Partner at Fisher & Phillips LLP, attorneys for Defendants Prestige Employee Administrators, Inc. and Prestige Employee Administrators II, Inc. (collectively “Prestige”). In that capacity, I have personal knowledge of the facts set forth in this Affirmation, which I submit in support of Prestige’s Motion for Summary Judgment. 2. Attached hereto as Exhibit A are true and correct copies of portions of the deposition transcript of Plaintiff Robert Harris (“Harris”), dated November 20, 2019. 3. Attached hereto as Exhibit B are true and correct copies of portions of the deposition transcript of Defendant Nathan Nathan, dated November 25, 2019. 1 FP 36923161.1 1 of 3 FILED: NEW YORK COUNTY CLERK 01/17/2020 03:01 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020 4. Attached hereto as Exhibit C are true and correct copies of portions of the deposition transcript of Defendant Tommy Nathan, dated November 26, 2019. 5. Attached hereto as Exhibit D are true and correct copies of email chains that include an email sent on or about December 30, 2009 from Nathan Nathan to Harris regarding certain “salary thresholds and compensation” that they “discussed” and to which they “agreed.” 6. Attached hereto as Exhibit E are true and correct copies of search results for Prestige Employee Administrators, Inc. and Prestige Employee Administrators II, Inc. retrieved online from the New York State Department of State Division of Corporations. 7. Attached hereto as Exhibit F is a true and correct copy of an extract from Prestige’s website titled, “What is a PEO?” 8. Attached hereto as Exhibit G is a Service Agreement entered into between Prestige Employee Administrators, Inc. and Intimo, Inc. on or about April 1, 2010. 9. Attached hereto as Exhibit H are true and correct copies of portions of the deposition transcript of Moris Zilkha, dated November 26, 2019. 10. Attached hereto as Exhibit I are true and correct copies of portions of the deposition transcript of Ryan Yannalfo, dated November 25, 2019. 11. Attached hereto as Exhibit J is a true and correct copy of Harris’s Employee Acknowledgment, dated March 29, 2010. Prestige produced a copy of this document in its possession bearing the following Bates number: Prestige 000039. 12. Attached hereto as Exhibit K is a true and correct copy of Harris’s Authorization & Waiver, which is undated. Prestige produced a copy of this document in its possession bearing the following Bates number: Prestige 000040. 2 FP 36923161.1 2 of 3 FILED: NEW YORK COUNTY CLERK 01/17/2020 03:01 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 01/17/2020 13. Attached hereto as Exhibit L are true and correct copies of an EE Termination Checklist and Employee Termination Report concerning Harris. 14. Attached hereto as Exhibit M are true and correct copies of Harris’s First Amended Complaint, dated May, 31, 2019, along with the referenced exhibits that were filed with it. 15. Attached hereto as Exhibit N are true and correct copies of Harris’s original Complaint, dated January 10, 2017, along with the referenced exhibits that were filed with it. 16. Attached hereto as Exhibit O is a true and correct copy of the Answer to First Amended Complaint and Cross-Claims filed by Defendants Intimo, Inc., Nathan Nathan, Tommy Nathan, and Moris Zilkha. 17. Attached hereto as Exhibit P are true and correct copies of portions of Harris’s Motion to Amend his First Amended Complaint to add claims for fraud and promissory estoppel, dated December 14, 2019. 18. Harris’s counsel filed the Note of Issue on December 31, 2019. Dated: Murray Hill, NJ January 17, 2020 David B. Lichtenberg, Esq. 3 FP 36923161.1 3 of 3