Preview
FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSEPH HERTZ Index No. 526061-2019
Plaintiff,
REPLY AFFIRMATION OF
-against- JUSTIN M. PICCIONE, ESQ.
IN FURTHER SUPPORT OF
SAMUEL HERTZ, Individually, and as the Nominated DEFENDANT’S CROSS-
Executor of the Purported Last Will & Testament of Mira MOTION FOR A STAY
Hertz, dated November 26, 2008, and as Trustee of the
Purported Mira Hertz Revocable Trust Agreement, dated
November 26, 2008, and as Trustee of the Purported Mira
Hertz Family Trust Agreement, dated November 26, 2008,
Defendant.
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JUSTIN M. PICCIONE, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following to be true, under the penalty of perjury:
1. I am a member of the law firm RIVKIN RADLER LLP., (“Rivkin Radler”)
attorneys for the Defendant SAMUEL HERTZ (“Defendant”) in this matter, and submit this
Reply Affirmation in further support of Defendant’s cross-motion for a stay of these proceedings
pursuant to CPLR § 326(a) and § 2201.
2. As set forth below, and as explained more fully in Defendant’s initial moving
papers, pursuant to CPLR § 326(a) and § 2201, this Court should stay the current proceeding and
hold Plaintiff’s motion to disqualify Rivkin Radler in abeyance pending a ruling by this Court on
the Defendant’s motion for consolidation and transfer, which is currently sub judice before this
Court. If the Defendant’s motion to consolidate and transfer is granted, Plaintiff’s motion to
disqualify, which is also currently sub judice, will be adjudicated in the Surrogate’s Court, which
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has substantial experience dealing with matters, such as those present here, involving issues
related to the affairs of a decedent’s estate, including experience adjudicating motions to
disqualify the attorney-draftsperson based on the advocate-witness rule.
3. Moreover, given that a petition seeking to admit the decedent’s (Mira Hertz) Last
Will and Testament and Codicil has been filed in the Kings County Surrogate’s Court, which is a
petition that Plaintiff will no doubt contest, there is now a third legal proceeding involving the
same underlying facts and circumstances. As such, and assuming Defendant’s motion to
consolidate and transfer is granted (which it should be), the Court’s issuance of a stay will
simply maintain the status quo and ensure that the parties – and the Court – are not further
bogged down by the needless duplication of discovery or suffer prejudice because of the very
real potential for inconsistent rulings and verdicts. As such, this Court should grant Defendant’s
motion for a limited stay pending this Court’s decision on Defendant’s motion to
transfer/consolidate.
4. The gist of Plaintiff’s arguments against the issuance of a stay are apparently
three-fold: (1) there is “no basis” for a stay pursuant to either CPLR 326 or CPLR 2202 and that
Defendant’s reliance on such statutes in support of his request for a stay is “misplaced,” (2)
Defendant’s request for a stay is merely a dilatory tactic designed to halt the present proceeding
in an attempt to get this Court to decide Defendant’s motion for consolidation/transfer before
deciding Plaintiff’s motion to disqualify Rivkin Radler, and (3) denying Defendant’s cross-
motion for a stay won’t prejudice the Defendant but granting such motion will, on the other
hand, somehow result in “substantial prejudice” to the Plaintiff. As explained more fully below,
each of Plaintiff’s three main claims against the issuance of stay is meritless and should be
rejected.
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5. Turning first to Plaintiff’s claim that there is “no basis” for a stay pursuant to
CPLR 326 and/or CPLR 2202, such a claim is simply wrong and should be rejected out of hand.
As mentioned in Defendant’s initial moving papers, this Court has not one but two well-defined
statutory grounds on which to issue a stay; namely, CPLR § 326(a) and CPLR § 2201. Indeed,
pursuant to CPLR § 326(a), this Court is permitted to issue a stay of proceedings where, as here,
a party seeks removal under CPLR §325(e), which expressly permits the Supreme Court to
remove a case from the Supreme Court to the Surrogate’s Court where a decedent’s estate is
affected or where an action pending in the Supreme Court affects the administration of a
decedent's estate. See CPLR § 325(e). See also Nichols v. Kruger, 493 N.Y.S.2d 605 (2d Dept.
1986) (recognizing the Supreme Court's independent authority to make such a transfer pursuant
to § 19(a) of Article VI of the Constitution.). In short, CPLR 326 provides uniform rules of
procedure for removal, or transfer, regardless of the particular courts involved. Subdivision (a),
which is applicable in the present case, facilitates the obtaining of a stay while a motion for
removal is pending. See Vincent C. Alexander, Practice Commentaries, McKinney's CPLR
Rule 326 (2021). As such, because the present action, which seeks to invalidate certain trusts
based on claims of “undue influence,” clearly “affects a decedent’s estate,” and because
Defendant has sought transfer under CPLR §325(e), a stay pursuant CPLR § 326(a) is warranted
and Plaintiff’s motion to disqualify Rivkin Radler should he held in abeyance until the
Defendant’s motion to consolidate and transfer is decided.
6. Although Plaintiff makes the bald assertion in his opposition papers that
Defendant’s reliance on CPLR § 326(a) is “misplaced,” he fails to put forth any credible facts or
meaningful legal authority to substantiate such a claim. Plaintiff’s conclusory statement that
there is “no pending proceeding” in the Kings County Surrogate’s Court is not only irrelevant to
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this Court’s ability to issue a stay, but it’s also factually wrong. There is indeed a pending
proceeding in the Kings County Surrogate’s Court. Specifically, on June 29, 2021, Defendant,
as the nominated executor of the decedent Mira Hertz’s Will, filed a petition for probate and
letters testamentary seeking to probate the Last Will and Testament of Mira Hertz dated
November 26, 2008 along with a Codicil dated July 23, 2008. The probate matter is in its early
stages and the Surrogate’s Court has not yet issued a citation for Plaintiff Joseph Hertz to appear
or otherwise object to the relief requested in the probate petition. In any event, the important
point is that, contrary to Plaintiff’s claim in his opposition papers, there is a pending matter in the
Kings County Surrogate’s Court. See Piccione Aff. in Further Support of Defendant’s Motion to
Consolidate and Transfer dated July 12, 2021, Exh. C (Probate Petition and E-File
Confirmation).
7. In short, because the Defendant has sought to transfer this matter to the
Surrogate’s Court, a stay pursuant to CPLR § 326(a) is warranted and the Defendant’s motion
should be granted.
8. Similarly, because the Defendant has moved not only to transfer this case to
Surrogate’s Court but also for consolidation pursuant to CPLR § 602(a), a stay is also warranted
under CPLR § 2201. Pursuant to that statute, well-settled appellate case law recognizes that, “a
court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications,
application of proof and potential waste of judicial resources.” Matter of Tenenbaum, 81 AD3d
738,739 (2d Dept. 2011)(internal citation and quotations omitted). See also Rhodes v. Mosher,
115 A.D.2d 351 (4th Dept. 1985)(noting that CPLR § 2201 authorizes a Court to “grant a stay of
proceedings in a proper case, upon such terms as may be just.”).
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9. In short, because this case falls squarely within the statutory confines of both
CPLR § 326(a) and § 2201, this Court should grant Defendant’s cross-motion for a stay.
10. Turning next to Plaintiff’s claim that Defendant’s request for a stay is merely a
dilatory tactic designed to halt the present proceeding and prevent the Court from ruling on
Plaintiff’s motion to disqualify Rivkin Radler, here too, Plaintiff’s claim is meritless and should
be rejected. As previously mentioned, the purpose of Defendant’s request for a stay is simply to
maintain the status quo until the Defendant’s motion to consolidate and transfer is decided. In
this way, Defendant hopes to avoid not only the significant time and expense of engaging in
duplicative discovery, duplicative motion practice and maybe even duplicative trials, but also to
avoid the potential for inconsistent rulings and verdicts, which is certainly a very real possibility
given that there are currently three very similar actions that are pending in two different courts.
In short, there is nothing at all “tactical” or “dilatory” about Defendant’s request for a stay. On
the contrary, Defendant merely seeks a limited stay to maintain the status quo until Defendant’s
motion for consolidation and transfer is decided.
11. Also, because this is not the first time that Plaintiff has wrongly accused
Defendant of engaging in “tactical” motion practice (see e.g., Plaintiff’s Memo of Law in
Opposition to Defendant’s motion to transfer and consolidate at p. 12), it’s worth pointing out
(again) that it’s the Plaintiff – and only Plaintiff – who is seeking to disqualify Scott Eisenmesser
and Rivkin Radler from representing the Defendant on grounds of the advocate-witness rule. As
Defendant has previously pointed out to this Court in connection with his opposition to
Plaintiff’s motion to disqualify, perhaps no tool in a litigator’s arsenal lends itself to such
“tactical” use and abuse, along with the potential to cause hardship or delay, as a motion to
disqualify an attorney. This is particularly true in the present case where Plaintiff is seeking not
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only to disqualify the attorney-draftsperson Scott Eisenmesser but is also seeking to disqualify
his entire law firm of more than 200 attorneys. And as further evidence that Plaintiff is
impermissibly using his motion to disqualify a “sword rather than a shield,” Plaintiff
inexplicably waited more than a year after commencing the present lawsuit to file his motion to
disqualify Rivkin Radler. Courts have long-held that the timing of the motion to disqualify
should also be considered as courts have recognized that such motions are often used as a
litigation tactic to cause hardship or delay. See e.g., Talvy v. American Red Cross in Greater NY,
205 A.D.2d 143 (1st Dept. 1994); S&S Hotel Ventures Ltd. Partnership, ("because of such
potential abuse, a Court must guard against the advocate/witness rule's tactical use to disqualify
counsel, and must subject disqualification motions to strict scrutiny.” (internal citations and
quotations omitted).1
12. Lastly, with respect to Plaintiff’s claim that he would suffer “substantial
prejudice” if a limited stay was issued, such a claim is misplaced and should be rejected. As
previously mentioned above, Defendant is simply asking for a stay in order to maintain the status
quo and to allow the Court to rule on Defendant’s motion to transfer and consolidate. This
temporary request for relief would in no way result in any prejudice at all to Plaintiff, let alone
“substantial prejudice” sufficient to warrant denial of Defendant’s request for a stay. In fact, all
three related actions – including the present action – are currently in their early stages. Pre-trial
discovery is still ongoing. Depositions have been scheduled but not yet held. And this case
1
It’s also worth mentioning that Plaintiff’s other attorney, Peter Reilly, Esq., who represents Plaintiff in a related
action pending in Supreme Court, Kings County (Index # 517800/2020), also opposes Defendant’s request for a
stay, claiming, among other things, that Defendant’s “intent” (in requesting a stay) is to “delay, delay, delay.”
See
Aff. of P. Reilly dated August 18, 2021 at p. 2.This is a rather remarkable – and indeed hypocritical – claim given
that the written “agreements” that form the basis for Plaintiff’s lawsuit in this related action (the one Reilly is
handling) were made in 2012 and 2014. But Plaintiff didn’t sue the Defendant until 2020 – nearly six years after the
2014 agreement and just as the statute of limitations was about to expire.Now that’s, to quote Mr. Reilly, a true
example of “delay, delay, delay.”
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certainly isn’t “trial ready.” If fact, the notice of issue final conference with the Court isn’t even
scheduled to take place until December 15, 2021. In short, whatever additional minimal delay in
this proceeding that might result from the issuance of a temporary stay is far outweighed by the
significant harm Defendant would surely suffer if he were forced to defend himself in three
related and simultaneous lawsuits currently pending in two different courts.
13. For the reasons set forth above, I respectfully request that this Court grant
Defendant’s cross-motion for a stay in its entirety.
Justin M. PIccione
__________________________
JUSTIN M. PICCIONE
Dated: Uniondale, New York
August 24, 2021
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Preview
FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSEPH HERTZ Index No. 526061-2019 Plaintiff, REPLY AFFIRMATION OF -against- JUSTIN M. PICCIONE, ESQ. IN FURTHER SUPPORT OF SAMUEL HERTZ, Individually, and as the Nominated DEFENDANT’S CROSS- Executor of the Purported Last Will & Testament of Mira MOTION FOR A STAY Hertz, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Family Trust Agreement, dated November 26, 2008, Defendant. ---------------------------------------------------------------------X JUSTIN M. PICCIONE, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true, under the penalty of perjury: 1. I am a member of the law firm RIVKIN RADLER LLP., (“Rivkin Radler”) attorneys for the Defendant SAMUEL HERTZ (“Defendant”) in this matter, and submit this Reply Affirmation in further support of Defendant’s cross-motion for a stay of these proceedings pursuant to CPLR § 326(a) and § 2201. 2. As set forth below, and as explained more fully in Defendant’s initial moving papers, pursuant to CPLR § 326(a) and § 2201, this Court should stay the current proceeding and hold Plaintiff’s motion to disqualify Rivkin Radler in abeyance pending a ruling by this Court on the Defendant’s motion for consolidation and transfer, which is currently sub judice before this Court. If the Defendant’s motion to consolidate and transfer is granted, Plaintiff’s motion to disqualify, which is also currently sub judice, will be adjudicated in the Surrogate’s Court, which 1 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 has substantial experience dealing with matters, such as those present here, involving issues related to the affairs of a decedent’s estate, including experience adjudicating motions to disqualify the attorney-draftsperson based on the advocate-witness rule. 3. Moreover, given that a petition seeking to admit the decedent’s (Mira Hertz) Last Will and Testament and Codicil has been filed in the Kings County Surrogate’s Court, which is a petition that Plaintiff will no doubt contest, there is now a third legal proceeding involving the same underlying facts and circumstances. As such, and assuming Defendant’s motion to consolidate and transfer is granted (which it should be), the Court’s issuance of a stay will simply maintain the status quo and ensure that the parties – and the Court – are not further bogged down by the needless duplication of discovery or suffer prejudice because of the very real potential for inconsistent rulings and verdicts. As such, this Court should grant Defendant’s motion for a limited stay pending this Court’s decision on Defendant’s motion to transfer/consolidate. 4. The gist of Plaintiff’s arguments against the issuance of a stay are apparently three-fold: (1) there is “no basis” for a stay pursuant to either CPLR 326 or CPLR 2202 and that Defendant’s reliance on such statutes in support of his request for a stay is “misplaced,” (2) Defendant’s request for a stay is merely a dilatory tactic designed to halt the present proceeding in an attempt to get this Court to decide Defendant’s motion for consolidation/transfer before deciding Plaintiff’s motion to disqualify Rivkin Radler, and (3) denying Defendant’s cross- motion for a stay won’t prejudice the Defendant but granting such motion will, on the other hand, somehow result in “substantial prejudice” to the Plaintiff. As explained more fully below, each of Plaintiff’s three main claims against the issuance of stay is meritless and should be rejected. 2 2 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 5. Turning first to Plaintiff’s claim that there is “no basis” for a stay pursuant to CPLR 326 and/or CPLR 2202, such a claim is simply wrong and should be rejected out of hand. As mentioned in Defendant’s initial moving papers, this Court has not one but two well-defined statutory grounds on which to issue a stay; namely, CPLR § 326(a) and CPLR § 2201. Indeed, pursuant to CPLR § 326(a), this Court is permitted to issue a stay of proceedings where, as here, a party seeks removal under CPLR §325(e), which expressly permits the Supreme Court to remove a case from the Supreme Court to the Surrogate’s Court where a decedent’s estate is affected or where an action pending in the Supreme Court affects the administration of a decedent's estate. See CPLR § 325(e). See also Nichols v. Kruger, 493 N.Y.S.2d 605 (2d Dept. 1986) (recognizing the Supreme Court's independent authority to make such a transfer pursuant to § 19(a) of Article VI of the Constitution.). In short, CPLR 326 provides uniform rules of procedure for removal, or transfer, regardless of the particular courts involved. Subdivision (a), which is applicable in the present case, facilitates the obtaining of a stay while a motion for removal is pending. See Vincent C. Alexander, Practice Commentaries, McKinney's CPLR Rule 326 (2021). As such, because the present action, which seeks to invalidate certain trusts based on claims of “undue influence,” clearly “affects a decedent’s estate,” and because Defendant has sought transfer under CPLR §325(e), a stay pursuant CPLR § 326(a) is warranted and Plaintiff’s motion to disqualify Rivkin Radler should he held in abeyance until the Defendant’s motion to consolidate and transfer is decided. 6. Although Plaintiff makes the bald assertion in his opposition papers that Defendant’s reliance on CPLR § 326(a) is “misplaced,” he fails to put forth any credible facts or meaningful legal authority to substantiate such a claim. Plaintiff’s conclusory statement that there is “no pending proceeding” in the Kings County Surrogate’s Court is not only irrelevant to 3 3 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 this Court’s ability to issue a stay, but it’s also factually wrong. There is indeed a pending proceeding in the Kings County Surrogate’s Court. Specifically, on June 29, 2021, Defendant, as the nominated executor of the decedent Mira Hertz’s Will, filed a petition for probate and letters testamentary seeking to probate the Last Will and Testament of Mira Hertz dated November 26, 2008 along with a Codicil dated July 23, 2008. The probate matter is in its early stages and the Surrogate’s Court has not yet issued a citation for Plaintiff Joseph Hertz to appear or otherwise object to the relief requested in the probate petition. In any event, the important point is that, contrary to Plaintiff’s claim in his opposition papers, there is a pending matter in the Kings County Surrogate’s Court. See Piccione Aff. in Further Support of Defendant’s Motion to Consolidate and Transfer dated July 12, 2021, Exh. C (Probate Petition and E-File Confirmation). 7. In short, because the Defendant has sought to transfer this matter to the Surrogate’s Court, a stay pursuant to CPLR § 326(a) is warranted and the Defendant’s motion should be granted. 8. Similarly, because the Defendant has moved not only to transfer this case to Surrogate’s Court but also for consolidation pursuant to CPLR § 602(a), a stay is also warranted under CPLR § 2201. Pursuant to that statute, well-settled appellate case law recognizes that, “a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources.” Matter of Tenenbaum, 81 AD3d 738,739 (2d Dept. 2011)(internal citation and quotations omitted). See also Rhodes v. Mosher, 115 A.D.2d 351 (4th Dept. 1985)(noting that CPLR § 2201 authorizes a Court to “grant a stay of proceedings in a proper case, upon such terms as may be just.”). 4 4 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 9. In short, because this case falls squarely within the statutory confines of both CPLR § 326(a) and § 2201, this Court should grant Defendant’s cross-motion for a stay. 10. Turning next to Plaintiff’s claim that Defendant’s request for a stay is merely a dilatory tactic designed to halt the present proceeding and prevent the Court from ruling on Plaintiff’s motion to disqualify Rivkin Radler, here too, Plaintiff’s claim is meritless and should be rejected. As previously mentioned, the purpose of Defendant’s request for a stay is simply to maintain the status quo until the Defendant’s motion to consolidate and transfer is decided. In this way, Defendant hopes to avoid not only the significant time and expense of engaging in duplicative discovery, duplicative motion practice and maybe even duplicative trials, but also to avoid the potential for inconsistent rulings and verdicts, which is certainly a very real possibility given that there are currently three very similar actions that are pending in two different courts. In short, there is nothing at all “tactical” or “dilatory” about Defendant’s request for a stay. On the contrary, Defendant merely seeks a limited stay to maintain the status quo until Defendant’s motion for consolidation and transfer is decided. 11. Also, because this is not the first time that Plaintiff has wrongly accused Defendant of engaging in “tactical” motion practice (see e.g., Plaintiff’s Memo of Law in Opposition to Defendant’s motion to transfer and consolidate at p. 12), it’s worth pointing out (again) that it’s the Plaintiff – and only Plaintiff – who is seeking to disqualify Scott Eisenmesser and Rivkin Radler from representing the Defendant on grounds of the advocate-witness rule. As Defendant has previously pointed out to this Court in connection with his opposition to Plaintiff’s motion to disqualify, perhaps no tool in a litigator’s arsenal lends itself to such “tactical” use and abuse, along with the potential to cause hardship or delay, as a motion to disqualify an attorney. This is particularly true in the present case where Plaintiff is seeking not 5 5 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 only to disqualify the attorney-draftsperson Scott Eisenmesser but is also seeking to disqualify his entire law firm of more than 200 attorneys. And as further evidence that Plaintiff is impermissibly using his motion to disqualify a “sword rather than a shield,” Plaintiff inexplicably waited more than a year after commencing the present lawsuit to file his motion to disqualify Rivkin Radler. Courts have long-held that the timing of the motion to disqualify should also be considered as courts have recognized that such motions are often used as a litigation tactic to cause hardship or delay. See e.g., Talvy v. American Red Cross in Greater NY, 205 A.D.2d 143 (1st Dept. 1994); S&S Hotel Ventures Ltd. Partnership, ("because of such potential abuse, a Court must guard against the advocate/witness rule's tactical use to disqualify counsel, and must subject disqualification motions to strict scrutiny.” (internal citations and quotations omitted).1 12. Lastly, with respect to Plaintiff’s claim that he would suffer “substantial prejudice” if a limited stay was issued, such a claim is misplaced and should be rejected. As previously mentioned above, Defendant is simply asking for a stay in order to maintain the status quo and to allow the Court to rule on Defendant’s motion to transfer and consolidate. This temporary request for relief would in no way result in any prejudice at all to Plaintiff, let alone “substantial prejudice” sufficient to warrant denial of Defendant’s request for a stay. In fact, all three related actions – including the present action – are currently in their early stages. Pre-trial discovery is still ongoing. Depositions have been scheduled but not yet held. And this case 1 It’s also worth mentioning that Plaintiff’s other attorney, Peter Reilly, Esq., who represents Plaintiff in a related action pending in Supreme Court, Kings County (Index # 517800/2020), also opposes Defendant’s request for a stay, claiming, among other things, that Defendant’s “intent” (in requesting a stay) is to “delay, delay, delay.” See Aff. of P. Reilly dated August 18, 2021 at p. 2.This is a rather remarkable – and indeed hypocritical – claim given that the written “agreements” that form the basis for Plaintiff’s lawsuit in this related action (the one Reilly is handling) were made in 2012 and 2014. But Plaintiff didn’t sue the Defendant until 2020 – nearly six years after the 2014 agreement and just as the statute of limitations was about to expire.Now that’s, to quote Mr. Reilly, a true example of “delay, delay, delay.” 6 6 of 7 FILED: KINGS COUNTY CLERK 08/24/2021 11:52 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 08/24/2021 certainly isn’t “trial ready.” If fact, the notice of issue final conference with the Court isn’t even scheduled to take place until December 15, 2021. In short, whatever additional minimal delay in this proceeding that might result from the issuance of a temporary stay is far outweighed by the significant harm Defendant would surely suffer if he were forced to defend himself in three related and simultaneous lawsuits currently pending in two different courts. 13. For the reasons set forth above, I respectfully request that this Court grant Defendant’s cross-motion for a stay in its entirety. Justin M. PIccione __________________________ JUSTIN M. PICCIONE Dated: Uniondale, New York August 24, 2021 7 7 of 7