Preview
FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSEPH HERTZ,
Index No. 526061/2019
Plaintiff,
IAS Part 66
-against- (Velasquez, J.)
SAMUEL HERTZ, Individually, and as the AFFIRMATION OF IRMA K.
Nominated Executor of the Purported Last Will & NIMETZ, ESQ. IN SUPPORT
Testament of Mira Hertz, dated November 26, 2008, OF MOTION TO COMPEL
and as Trustee of the Purported Mira Hertz Revocable DISCOVERY AND TO
Trust Agreement, dated November 26, 2008, and as EXTEND TIME TO FILE
Trustee of the Purported Mira Hertz Family Trust NOTE OF ISSUE________
Agreement, dated November 26, 2008,
Defendant.
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IRMA K. NIMETZ, an attorney duly admitted to practice before the Courts of the State
of New York, affirms the following under penalty of perjury:
1. I am a partner in the law firm of McCarthy Fingar LLP, attorneys for plaintiff
Joseph Hertz (hereinafter “Plaintiff” or “Joseph Hertz”), in the above-referenced action
(hereinafter the “Action”). I am fully familiar with the facts in this Action and make this
Affirmation in support of Plaintiff’s motion for an Order: (a) pursuant to CPLR 3124, (i)
directing Defendant Samuel Hertz to produce documents pursuant to Plaintiff’s First Notice of
Discovery and Inspection, dated June 12, 2020, and to produce documents pursuant to Plaintiff’s
Post-Deposition Document Demand letter, dated December 20, 2021, following the deposition of
Samuel Hertz on November 15, 2021, and to produce documents pursuant to Plaintiff’s First
Supplemental Notice of Discovery and Inspection, dated January 14, 2022, and (ii) directing the
Defendant Samuel Hertz (hereinafter “Defendant” or “Samuel Hertz”) to appear for a continued
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deposition following such document production; (b) pursuant to CPLR 3124 compelling non-
party witnesses Rivkin Radler LLP (hereinafter “Rivkin Radler”), Scott Eisenmesser, Esq., Yaron
Kornblum, Esq. and Walter Gumersell, Esq. to comply with the subpoenas duces tecum, dated
February 23, 2022, served upon each of them and to pay for their own attorneys’ fees for the law
firm and its partners; (c) pursuant to CPLR § 2004, granting Plaintiff leave to extend the time for
Plaintiff to file a note of issue beyond April 25, 2022 because discovery is not yet complete; and,
(d) for such other and further relief as the Court deems just and proper.
I. Overview
A. The Complaint
2. Plaintiff commenced this Action by e-filing a Summons and Verified Complaint
(the “Complaint”) against Defendant Samuel Hertz (“Defendant”), Individually and as the
Nominated Executor of the Last Will & Testament of Mira Hertz, dated November 26, 2008
(“Purported Will”), as Trustee of the purported Mira Hertz Revocable Trust Agreement
(“Purported Trust”), dated November 26, 2008, and as Trustee of the purported Mira Hertz
Purported Family Trust Agreement, dated November 26, 2008 (“Purported Family Trust”)
seeking a judgment: (1) setting aside and invalidating the Purported Trust and the Purported
Family Trust on the grounds of undue influence by Defendant upon his mother, Mira Hertz; and
(2) ordering the imposition of a constructive trust over all such payments wrongfully withheld by
Defendant from Plaintiff and/or Plaintiff’s children. Compl., ¶¶ 37-39, 41-45, 47-491. Summons
and Complaint, NYSCEF Nos. 1-2, exhibits A-L to Complaint, NYSCEF Nos. 3-14.2
1
Citations to the Verified Complaint in this Action shall hereafter be designated “Compl., ¶ __.”
2
Defendant e-filed a Verified Answer to the Complaint on January 9, 2020. See Verified Answer, NYSCEF
No. 20.
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B. The Purported Will, The Purported Trust and The Purported Family Trust
3. Mira Hertz, a resident of Brooklyn, New York died on April 27, 2015 at New
York Methodist Hospital in Brooklyn (hereinafter “Mira Hertz” or the “Decedent”) at the age of
93. Mira Hertz’s two sons, Joseph Hertz and Samuel Hertz, survived her. Her husband, Wolf
Hertz, predeceased her on March 23, 1992. Compl., ¶¶ 11-2, 16-17.
4. Wolf Hertz, Decedent, Plaintiff and Defendant purchased and managed multi-
family residential properties located in Brooklyn and Manhattan. Compl., ¶ 17. Following
Wolf’s death, Mira Hertz, Samuel Hertz and Joseph Hertz continued managing the residential
properties3 (hereinafter the “Hertz Family Real Estate Entities”).
5. Mira Hertz executed a Last Will and Testament, dated April 14, 2008 (hereinafter
the “April 2008 Will”), drafted by her long-standing estate planning attorney, Bernard Jaffe,
Esq., in which she bequeathed 60% of her residuary estate to her older son Samuel Hertz and
40% to her younger son Joseph Hertz. A copy of the April 2008 Will is annexed hereto as
Exhibit A.
6. Upon information and belief, in July 2008, Defendant arranged for his mother to
meet with Yaron Kornblum, Esq., a partner in Rivkin Radler, who represented Samuel Hertz.
Following a meeting with Defendant and Decedent, Rivkin Radler drafted a codicil (hereinafter
“Codicil”), which added a “no contest” clause to Decedent’s April 2008 Will. Mira Hertz signed
the Codicil on July 23, 2008. A copy of the Codicil is annexed hereto as Exhibit B. Rivkin
3
One of those entities,Samjo Realty Corp. (hereinafter“Samjo”), owns and operates one building in
Manhattan and two buildings in Brooklyn. The other entities include Josam Realty Corp. (hereinafter “Josam”),
which owns and operates two buildings in Brooklyn, and Cores Realty Corporation, Goder Realty Corporation, 93
Underhill Realty Corporation, Wolmir Realty Corporation, Kara Realty Corporation, and Lana Realty Co., LLC,
which each own and operate one building in Brooklyn. Plaintiff and Defendant also own separate real estate entities
individually. As of 1999, the Hertz Family Real Estate Entities were all managed as Ocean Empire Management.
Samjo was owned 100% by Mira; Josam was owned by Mira (40%), Samuel (30%) and Joseph (30%), and the other
entities were owned by Samuel Hertz and Joseph Hertz (50% each).
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Radler sent retainer letters to Samuel Hertz and Mira Hertz, both dated July 23, 2008, for “real
estate matters”, but the letters did not mention legal services for Wills and/or Trust Agreements
for either of them.4 Copies of the retainer letters to Mira Hertz and to Samuel Hertz are annexed
hereto collectively as Exhibit C.
7. Less than four months later, Rivkin Radler drafted forms of a Purported Will,
Purported Trust and Purported Family Trust and other estate planning documents for the
Decedent in which Defendant received all of the Decedent’s assets and interests in the shared
Hertz Family Real Estate Entities 5 and Plaintiff was disinherited. Defendant is the sole
nominated fiduciary and sole beneficiary under the Purported Will, Purported Trust and
Purported Family Trust.
C. Defendant’s Failure to Produce Documents
8. Throughout this litigation 6 ,Plaintiff has attempted to discover documents in
support of his claims for undue influence and for the imposition of a constructive trust, yet
Defendant and Rivkin Radler7, counsel for the Defendant and the Decedent, have employed one
dilatory tactic after another to impede the discovery of relevant documents.
4
Defendant and/or Rivkin Radler has never produced a retainer letter for “estate planning” addressed to Mira
Hertz and/or Defendant although invoices reflect estate planning work as discussed below.
5
Pursuant to the Purported Family Trust, Decedent transferred her 8% interest in Samjo to the Purported
Family Trust on November 26, 2008.
6
There are three other motions pending which are sub judice: Plaintiff’s motion to disqualify Defendant’s
counsel, Rivkin Radler, the law firm that drafted the Purported Will, Purported Trust and/or Purported Family Trust
and represented both the Decedent and the Defendant; Defendant’s motion to consolidate and transfer; and,
Defendant’s motion to stay discovery. Counsel for the parties appeared virtually for oral argument before the
Honorable Richard Velasquez on November 29, 2021. A chart summarizing the pending motions, submissions by
the parties, and corresponding NYSCEF numbers is annexed hereto as Exhibit D.
7
On February 24, 2022, Plaintiff served subpoenas duces tecum upon non-party witnesses, Rivkin Radler
and three of its partners (Scott Eisenmesser, Esq., Yaron Kornblum, Esq., and Walter Gumersell, Esq.), who drafted
the Purported Will, Purported Trust and Purported Family Trust and/or represented both the Decedent and
Defendant in connection with those estate planning documents. The non-party witnesses served responses and
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9. Although Plaintiff served his first document demand in June 2020, Defendant has
still not produced relevant documents, including but not limited to: Decedent’s financial and/or
banking records; financial records and corporate tax returns for the entities in which the
Decedent had a beneficial interest and/or transferred to the Defendant, Purported Trust and/or the
Purported Family Trust; loans from the Decedent to Defendant; drafts, and/or transmittal letters
from Rivkin Radler to the Decedent of the Purported Will, Purported Trust and/or Purported
Family Trust; drafts and/or transmittal letters concerning a power of attorney and/or a health care
proxy appointing the Defendant as agent; Decedent’s individual, federal, state and local tax
returns; gift tax returns 8 ; documents concerning RS Construction, a company owned by
Defendant to which, upon information and belief, he made improper payments from the Hertz
Family Real Estate Entities9; unredacted invoices and/or transmittal letters sent by Rivkin Radler
to Decedent and/or Defendant; payments (i.e., checks) sent by Defendant and/or Decedent to
Rivkin Radler for preparing the Purported Will, Purported Trust and/or Purported Family Trust.
objections, dated March 24, 2022, but did not produce a single document as discussed below. Copies of the
Subpoenas Duces Tecum and Responses thereto are annexed hereto collectively as Exhibits E and F respectively.
8
Defendant produced a 2008 gift tax return, signed by the Decedent on September 21, 2011, showing
Decedent’s transfer of 8% of Samjo to the Purported Family Trust. Upon information and belief, the Decedent made
other gifts to Defendant which are relevant to Plaintiff’s claims of undue influence and claim for the imposition of a
constructive trust.
9
When Plaintiff accused Defendant of making improper withdrawals from the Hertz Family Real Estate
Entities for Defendant’s personal benefit, arguments between the brothers escalated. Compl., ¶¶ 61-62. Upon
information and belief, in response to Plaintiff’s accusations, Defendant accused Plaintiff of being “paranoid” and
turned Decedent against Plaintiff. Compl., ¶ 62. During his deposition on November 15, 2021, Defendant admitted
writing checks to RS Construction from checking accounts for the Hertz Family Real Estate Entities, but he has not
produced any back up documentation or receipts for these expenditures pursuant to document demands. Citations to
the Deposition Transcript of Samuel Hertz, dated November 15, 2021, shall hereafter be designated as “Samuel
Hertz Dep. Tr., 11/15/21, p. __, lines ___.” Samuel Hertz Dep. Tr., 11/15/21, pp. 54-67, 70-72. Copies of the pages
referenced from Samuel Hertz’s Deposition Transcript, dated November 15, 2021, are annexed hereto collectively as
Exhibit G.
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10. Defendant’s failure to produce documents is especially frustrating since
Defendant testified that he has Decedent’s records in his house.10:
Q. After your mom passed away, did you
clean out her apartment?
A. My wife did, yes.
* * *
Q. Your wife, Hagit?
A. Correct.
Q. What did Hagit do with your mother's
personal papers?
A. She gathered them in some boxes.
Q. Are those boxes in your house?
A. I think so.
* * *
Q. Would they be any place else?
A. I think there was a storage place in the
building, but I don't think she put it there. I
have to ask her. I think it is in the house. I
think so.
Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, p. 149, lines 12-25; p. 150, lines 2-6.
D. The Note of Issue
11. Plaintiff must file a Note of Issue on or before April 25, 2022 pursuant to a
Stipulation Extending Time to File a Note of Issue so ordered by the Honorable Lawrence
Knipel, on February 25, 2022 (“February 25, 2022 So Ordered Stipulation”). See NYSCEF No.
141. The February 25, 2022 So Ordered Stipulation also provided, inter alia, that Plaintiff and
Defendant agreed to complete party discovery, including but not limited to completing the
continued depositions of the parties, and/or responding to document requests, and/or producing
10
In response to a post-deposition demand letter requesting documents in Samuel Hertz’s possession that he
removed from Mira Hertz’s apartment during her lifetime and following her death, Defendant responded he “is not
in possession of any documents responsive to this request.” See ¶ 19 below, Exhibit L.
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documents on or before April 25, 2022.” See Stipulation Extending Time to File Note of Issue,
¶¶ 3, 5, NYSCEF No. 141.
12. Plaintiff cannot file a Note of Issue and Certificate of Readiness for Trial
certifying that necessary discovery has been completed because discovery is not complete.
Accordingly, Plaintiff brings this motion to extend beyond April 25, 2022 the date for filing a
note of issue and certificate of trial readiness until, inter alia, this Court orders Defendant to
comply with the outstanding discovery demands and to appear for a continued deposition.
II. Plaintiff’s Document Demands and Defendant’s Refusal to Produce Documents
13. Throughout the course of this litigation, Defendant has brazenly refused to
produce documents. Plaintiff served Defendant with Plaintiff’s First Notice of Discovery and
Inspection on June 12, 2020 (hereinafter “Plaintiff’s June 2020 Document Demand”). A copy of
Plaintiff’s June 2020 Document Demand is annexed hereto as Exhibit H.
14. After requesting and receiving an extension to respond to Plaintiff’s June 2020
Document Demand, Defendant responded on August 3, 2020 by serving Defendant’s Responses
and Objections to Plaintiff’s First Document Demand (hereinafter “Defendant’s 2020 Document
Response”), without producing a single document.
15. In Defendant’s 2020 Document Response, Defendant objected and refused to
produce documents to 52 of the 87 document requests, including request numbers: 4, 6, 7, 12, 14,
16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47,
49, 51, 53, 54, 55, 56, 57, 58, 59, 69, 70, 71, 72, 73, 75, 77, 79, 80, 85, 86, 87.
16. In 35 of his responses to Plaintiff’s June 2020 Document Demand, Defendant
stated, in part: “Subject to and without waiving any objections, documents … will be produced
on a rolling basis, to the extent that such documents exist and are in Defendant’s possession.”
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[Emphasis supplied]. Defendant responded that he would produce documents “on a rolling
basis” to request numbers: 1, 2, 3, 5, 8, 9, 10, 11, 13, 15, 17, 18, 29, 31, 32, 45, 48, 50, 52, 60,
61, 62, 63, 64, 65, 66, 67, 68, 74, 76, 78, 81, 82, 83, 8411. A copy of Defendant’s 2020 Document
Response (with yellow highlighted responses for which Defendant refused to produce
documents, and with blue highlighted responses for documents to be produced “on a rolling
basis”) is annexed hereto as Exhibit I.
17. Pursuant to a Central Compliance Part Conference Order, so ordered by the
Honorable Lawrence Knipel on May 19, 2021, Defendant was to serve a Second Supplemental
Document Response and produce additional documents, if any, in response to Plaintiff’s June
2020 Document Demand on or before July 26, 2021, but Defendant failed to comply12 . See
Central Compliance Part Conference Order, NYSCEF No. 82 (hereinafter the “May 2021
Compliance Part Order”). A Proposed Amended Central Compliance Part Conference Order
(hereinafter “Proposed Amended Compliance Part Order”) was so ordered on or about August
24, 2021, NYSCEF No. 130.
18. Plaintiff deposed Defendant on October 28, 2021 and November 15, 2021. During
the deposition on November 15, 2021, Plaintiff requested documents from Defendant and sent
his counsel a post-deposition document request letter, dated December 20, 2021. A copy of
Plaintiff’s Post-Deposition Demand Letter is annexed hereto as Exhibit J.
19. At a final compliance conference with court attorney referee Janice Purvis on
December 22, 2021, the Court issued a Final Pre-Note Order, which was so ordered on January
11
Plaintiff filed an RJI via NYSCEF on August 13, 2020 seeking a preliminary conference to discuss, inter
alia, a motion to compel Defendant to produce documents and/or a discovery scheduling order. See NYSCEF No.
23. On December 29, 2020, the Court issued a Case Scheduling Order. See NYSCEF No. 25. Pursuant to the
Scheduling Order, a compliance conference was scheduled on May 11, 2021 at 9:30 am.
12
It is undisputed that Plaintiff fully complied with the Compliance Part Order and produced his Response to
Defendant’s First Request for Production of Documents on June 2, 2021.
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5, 2021. See Final Pre-Note Order, NYSCEF No. 139. Pursuant to the Final Pre-Note Order,
Plaintiff served a Plaintiff’s First Supplemental Notice of Discovery and Inspection on January
14, 2022, Defendant responded to Plaintiff’s Post Deposition Document Demand via letter, dated
January 14, 2022, and Defendant responded to Plaintiff’s First Supplemental Notice of
Discovery and Inspection on February 14, 2022. A copy of Plaintiff’s First Supplemental Notice
of Discovery and Inspection is annexed hereto as Exhibit K. A copy of Defendant’s Letter
Response, dated January 14, 2022, to Plaintiff’s Post-Deposition Demand letter is annexed
hereto as Exhibit L. A copy of Defendant’s Responses and Objections to Plaintiff’s First
Supplemental Notice of Discovery and Inspection (with red highlighted responses in red for
responses where Defendant refused to produce documents, and with green highlighted responses
for documents Defendant would produce in March 2022) is annexed hereto as Exhibit M.13
IV. All Documents Requested By Plaintiff Are Material and Necessary to the Prosecution
of this Action and Must Be Produced
20. For almost two years, Plaintiff has been attempting to obtain documents which are
material and necessary to the prosecution of the Action.
A. Defendant’s Promise to Decedent
21. Documents relating to Decedent’s finances and her interests in the Hertz Family
Real Estate Entities are particularly relevant since Defendant admitted, as alleged in the
Complaint, that he and the Decedent entered into an agreement whereby he promised Decedent
that if she disinherited Plaintiff, Defendant would “take care of” Plaintiff’s children. Compl., ¶¶
34, 82-85, 88-96.
13
Defendant has not produced many relevant documents. Instead, he has produced, in approximately 14
piecemeal productions, mostly old photographs and videotapes of the Decedent.
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22. Defendant testified that in keeping with their agreement, he promised the
Decedent that he would “take care of” Plaintiff’s children if she signed the Purported Will,
Purported Trust and Purported Family Trust and gave her entire estate to Defendant:
A. First, the only place we ever really
discussed the will or anything was in the offices
of Rivkin Radler. Not something we spoke about.
Two, the only time she said about the
grandchildren was on one of our trips here. She
turned to me and said "he's got enough. I want
you to take care of the grandchildren." I told
her that I would because she knew she was making
me responsible for everything. So I told her I
would based on the condition that the estate taxes
are paid first so I don't have to deal with that.
And number two, he doesn't challenge the will.
She said okay. That was that.
* * *
Q. This conversation took place in the
offices of Rivkin Radler; is that correct?
A. No, it took place in the car on the Belt
Parkway.
Q. It was on the way to a meeting with
Rivkin Radler in Uniondale; correct?
A. Correct.
Q. You and your mother were the only people
present in the car?
A. Correct.
Q. How did the conversation start?
A. Just chatting about various things, and
at some point my mother turned to me and I could
see that by her tone of voice, the way she said it
I could see she came to a decision. She said very
decisively. She said "He has enough. I want you
to take care of the grandchildren." I understood
what she meant because I assumed. I knew we were
coming here to possibly sign the new will and I
told her okay….
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See Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, p. 136, lines 5-17; p. 137, lines 4-25; p. 138,
lines 2-8.
23. Through Defendant’s extraordinary deposition testimony, he admits that he made
an agreement with the Decedent: Defendant was to receive the Decedent’s entire estate and
Plaintiff was to be completely disinherited. As discussed below, Plaintiff needs to obtain full
and complete full and complete discovery from Defendant and his attorneys as to Defendant’s
“deal” with the Decedent.
B. Documents Defendant is Refusing to Produce
26. Defendant’s deposition testimony reinforces Defendant’s management of the
Decedent’s financial affairs. Yet, despite these undisputed facts, Defendant is refusing to
produce the following documents concerning Decedent’s move from her apartment located
across the hall from Plaintiff at 121 Sterling Avenue, Unit 3B, Brooklyn, NY, to an apartment
closer to Defendant at 35 Prospect Park West, Apt., 6D, Brooklyn, NY 11215:
Requests in Plaintiff’s Supplemental Summary of Defendant’s
Document Demand Objections/Refusal To Produce
42. All documents and communications, from “…“…Defendant also objects to this Request
November 26, 2005 to the present, concerning: because it seeks documents that are irrelevant
(a) Decedent’s decision to move from 121 to the subject matter involved in this action and
Sterling Place, Unit 3B, Brooklyn, NY 11217 is not reasonably calculated to lead to the
to 35 Prospect Park West, Apt. 6D, Brooklyn, discovery of admissible evidence. In addition,
NY 11215; (b) the purchase and renovation of Defendant further objects to this Request to the
35 Prospect Park West, Apt. 6D, Brooklyn, NY extent that it seeks production of documents
11215 by Decedent, and/or by any trust, by any protected by the attorney-client privilege, the
entity, and/or by Defendant, and/or by any work product doctrine, or any other applicable
entity in which Defendant or Decedent had an privileges and which does not fall within the
interest; (c) any appraisal and/or valuation of narrow exception to the attorney-client
35 Prospect Park West, Apt. 6D, Brooklyn, NY privilege under CPLR 4503(b).”
11215; (d) the sale of 35 Prospect Park West,
Apt. 6D, Brooklyn, NY 11215 and proceeds
from such sale.
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27. Decedent’s decision to move from her apartment in the same building as Plaintiff
to one closer to Defendant is material and relevant to this Action. Pl. Mem. of Law, pp. 2-414.
Defendant testified that Apartment 6D at 35 Prospect Park West was transferred to the Purported
Trust and recently sold for $2.4 million which is relevant to, inter alia, Plaintiff’s second cause
of action for a constructive trust. See Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, pp. 152-153.
28. Plaintiff alleged that Defendant was in a confidential relationship with Decedent,
controlled her finances and exercised undue influence and duress to convince her to sign the
Purported Will, Purported Trust and Purported Family Trust, pursuant to which she transferred
her interest in Samjo to the Purported Family Trust. Compl., ¶¶ 27, 38, 63-85. Plaintiff also
asserted a claim for a constructive trust over 50% of the assets of the Decedent’s estate. Compl,
¶¶ 88-96. As such, documents relating to Samjo and/or any of the Plaintiff’s finances, bank
records or interests in the Hertz Family Real Estate Entities are relevant. Defendant refuses to
produce such documents as follows:
Requests in Plaintiff’s Supplemental Summary of Defendant’s
Document Demand Objections/Refusal To Produce
36. All documents concerning Samjo Realty “…Defendant further objects to this Request to
Corp., from November 26, 2005 through the extent that it seeks production of
Decedent’s date of death, including but not documents protected by the attorney-client
limited to: (a) articles of incorporation, by privilege, the work product doctrine, or any
laws, minutes, share registers; (b) the initial other applicable privileges and which does not
funding of the corporation; (c) financial fall within the narrow exception to the
statements, and/or ledger sheets or other attorney-client privilege under CPLR 4503(b).”
documents reflecting receipts, disbursements
or balance sheets; (d) Federal, State and local
tax returns; (e) bank and/or brokerage account
statements; (f) the current valuation of assets,
including appraisals of real estate or other
assets; (g) the acquisition of real estate or other
assets; (h) loans made from the Decedent or
Samjo Realty Corp. to, or received by Samjo
14
Citations to Plaintiff’s Memorandum of Law, dated April 22, 2022, in support of the motion to compel and
extend the time to file a note of issue shall hereafter be designated as “Pl. Mem. of Law, p. __.”
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Requests in Plaintiff’s Supplemental Summary of Defendant’s
Document Demand Objections/Refusal To Produce
Realty Corp. from, anyone or any entity,
including banks; (i) the interest of and/or
shares held by Defendant and the valuation of
such shares; (j) assignment of loans from any
entity; (k) the interest of and/or shares held by
Decedent, the Purported Mira Hertz Revocable
Trust, and/or the Purported Mira Hertz Family
Trust, and the valuation of such shares; and/or
(l) the sale and/or transfer of shares of Samjo
Realty Corp. to anyone and/or to any trust,
including but not limited to the Purported Mira
Hertz Revocable Trust, and/or the Purported
Mira Hertz Family Trust
40. All documents concerning any loans made “…In addition, Defendant further objects to
to Defendant from any entity in which this Request to the extent that it seeks
Defendant and/or Decedent had an ownership production of documents protected by the
interest, including but not limited to a loan to attorney-client privilege, the work product
Defendant for Defendant’s purchase of the doctrine, or any other applicable privileges and
property and business called Northeastern Tire which does not fall within the narrow
& Auto, Inc., and/or for Defendant’s or Hagit exception to the attorney-client privilege under
Hertz’s purchase of any residence CPLR 4503(b).”
41. All documents and communications “…Defendant also objects to this Request
concerning the purchase, sale, ownership because it seeks documents that are irrelevant
and/or maintenance, and/or transfer of real to the subject matter involved in this action and
estate wherever located: (a) by the Decedent, is not reasonably calculated to lead to the
or by a company owned in part or in whole by discovery of admissible evidence. In addition,
the Decedent, or by any entity in which Defendant further objects to this Request to the
Decedent had an interest, or by the Purported extent that it seeks production of documents
Mira Hertz Revocable Trust, and/or by the protected by the attorney-client privilege, the
Purported Mira Hertz Family Trust, to: work product doctrine, or any other applicable
Defendant and/or Hagit Hertz; or, (b) from privileges and which does not fall within the
anyone to the Decedent, or to a company narrow exception to the attorney-client
owned in part or in whole by the Decedent, or privilege under CPLR 4503(b).”
to any entity in which the Decedent had an
interest, or to the Purported Mira Hertz
Revocable Trust, and/or to the Purported Mira
Hertz Family Trust
43. With respect to real estate owned, in part or “…“…Defendant also objects to this Request
in whole by the Decedent and/or entities in because it seeks documents that are irrelevant
which the Decedent had an interest, including to the subject matter involved in this action and
but not limited to Samjo Realty Corp. and/or is not reasonably calculated to lead to the
Josam Realty Corp., partnerships, limited discovery of admissible evidence. In addition,
liability companies, and/or by the Purported Defendant further objects to this Request to the
Mira Hertz Revocable Trust, and/or by the extent that it seeks production of documents
{01228379.docx.}
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FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022
Requests in Plaintiff’s Supplemental Summary of Defendant’s
Document Demand Objections/Refusal To Produce
Purported Mira Hertz Family Trust, the protected by the attorney-client privilege, the
following documents are requested: work product doctrine, or any other applicable
privileges and which does not fall within the
a. All bank and brokerage accounts, narrow exception to the attorney-client
including but not limited to, savings privilege under CPLR 4503(b).”
accounts, checking accounts, money
market accounts, stocks and bonds in
the name of the Decedent, the Purported
Mira Hertz Revocable Trust, and/or by
the Purported Mira Hertz Family Trust
or any other trust;
b. All ledger sheets or other documents
reflecting receipts, disbursements or
balance sheets;
c. All loans, mortgages and/or
refinancings; and
d. All Federal, State and local tax returns
45. All documents and communications “…Defendant also objects to this Request
concerning any accounts at Signature Bank, because it seeks documents that are irrelevant
Bank Leumi and/or Bank Hapoalim in which to the subject matter involved in this action
Preview
FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSEPH HERTZ, Index No. 526061/2019 Plaintiff, IAS Part 66 -against- (Velasquez, J.) SAMUEL HERTZ, Individually, and as the AFFIRMATION OF IRMA K. Nominated Executor of the Purported Last Will & NIMETZ, ESQ. IN SUPPORT Testament of Mira Hertz, dated November 26, 2008, OF MOTION TO COMPEL and as Trustee of the Purported Mira Hertz Revocable DISCOVERY AND TO Trust Agreement, dated November 26, 2008, and as EXTEND TIME TO FILE Trustee of the Purported Mira Hertz Family Trust NOTE OF ISSUE________ Agreement, dated November 26, 2008, Defendant. ---------------------------------------------------------------------X IRMA K. NIMETZ, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalty of perjury: 1. I am a partner in the law firm of McCarthy Fingar LLP, attorneys for plaintiff Joseph Hertz (hereinafter “Plaintiff” or “Joseph Hertz”), in the above-referenced action (hereinafter the “Action”). I am fully familiar with the facts in this Action and make this Affirmation in support of Plaintiff’s motion for an Order: (a) pursuant to CPLR 3124, (i) directing Defendant Samuel Hertz to produce documents pursuant to Plaintiff’s First Notice of Discovery and Inspection, dated June 12, 2020, and to produce documents pursuant to Plaintiff’s Post-Deposition Document Demand letter, dated December 20, 2021, following the deposition of Samuel Hertz on November 15, 2021, and to produce documents pursuant to Plaintiff’s First Supplemental Notice of Discovery and Inspection, dated January 14, 2022, and (ii) directing the Defendant Samuel Hertz (hereinafter “Defendant” or “Samuel Hertz”) to appear for a continued {01228379.docx.} 1 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 deposition following such document production; (b) pursuant to CPLR 3124 compelling non- party witnesses Rivkin Radler LLP (hereinafter “Rivkin Radler”), Scott Eisenmesser, Esq., Yaron Kornblum, Esq. and Walter Gumersell, Esq. to comply with the subpoenas duces tecum, dated February 23, 2022, served upon each of them and to pay for their own attorneys’ fees for the law firm and its partners; (c) pursuant to CPLR § 2004, granting Plaintiff leave to extend the time for Plaintiff to file a note of issue beyond April 25, 2022 because discovery is not yet complete; and, (d) for such other and further relief as the Court deems just and proper. I. Overview A. The Complaint 2. Plaintiff commenced this Action by e-filing a Summons and Verified Complaint (the “Complaint”) against Defendant Samuel Hertz (“Defendant”), Individually and as the Nominated Executor of the Last Will & Testament of Mira Hertz, dated November 26, 2008 (“Purported Will”), as Trustee of the purported Mira Hertz Revocable Trust Agreement (“Purported Trust”), dated November 26, 2008, and as Trustee of the purported Mira Hertz Purported Family Trust Agreement, dated November 26, 2008 (“Purported Family Trust”) seeking a judgment: (1) setting aside and invalidating the Purported Trust and the Purported Family Trust on the grounds of undue influence by Defendant upon his mother, Mira Hertz; and (2) ordering the imposition of a constructive trust over all such payments wrongfully withheld by Defendant from Plaintiff and/or Plaintiff’s children. Compl., ¶¶ 37-39, 41-45, 47-491. Summons and Complaint, NYSCEF Nos. 1-2, exhibits A-L to Complaint, NYSCEF Nos. 3-14.2 1 Citations to the Verified Complaint in this Action shall hereafter be designated “Compl., ¶ __.” 2 Defendant e-filed a Verified Answer to the Complaint on January 9, 2020. See Verified Answer, NYSCEF No. 20. {01228379.docx.} 2 2 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 B. The Purported Will, The Purported Trust and The Purported Family Trust 3. Mira Hertz, a resident of Brooklyn, New York died on April 27, 2015 at New York Methodist Hospital in Brooklyn (hereinafter “Mira Hertz” or the “Decedent”) at the age of 93. Mira Hertz’s two sons, Joseph Hertz and Samuel Hertz, survived her. Her husband, Wolf Hertz, predeceased her on March 23, 1992. Compl., ¶¶ 11-2, 16-17. 4. Wolf Hertz, Decedent, Plaintiff and Defendant purchased and managed multi- family residential properties located in Brooklyn and Manhattan. Compl., ¶ 17. Following Wolf’s death, Mira Hertz, Samuel Hertz and Joseph Hertz continued managing the residential properties3 (hereinafter the “Hertz Family Real Estate Entities”). 5. Mira Hertz executed a Last Will and Testament, dated April 14, 2008 (hereinafter the “April 2008 Will”), drafted by her long-standing estate planning attorney, Bernard Jaffe, Esq., in which she bequeathed 60% of her residuary estate to her older son Samuel Hertz and 40% to her younger son Joseph Hertz. A copy of the April 2008 Will is annexed hereto as Exhibit A. 6. Upon information and belief, in July 2008, Defendant arranged for his mother to meet with Yaron Kornblum, Esq., a partner in Rivkin Radler, who represented Samuel Hertz. Following a meeting with Defendant and Decedent, Rivkin Radler drafted a codicil (hereinafter “Codicil”), which added a “no contest” clause to Decedent’s April 2008 Will. Mira Hertz signed the Codicil on July 23, 2008. A copy of the Codicil is annexed hereto as Exhibit B. Rivkin 3 One of those entities,Samjo Realty Corp. (hereinafter“Samjo”), owns and operates one building in Manhattan and two buildings in Brooklyn. The other entities include Josam Realty Corp. (hereinafter “Josam”), which owns and operates two buildings in Brooklyn, and Cores Realty Corporation, Goder Realty Corporation, 93 Underhill Realty Corporation, Wolmir Realty Corporation, Kara Realty Corporation, and Lana Realty Co., LLC, which each own and operate one building in Brooklyn. Plaintiff and Defendant also own separate real estate entities individually. As of 1999, the Hertz Family Real Estate Entities were all managed as Ocean Empire Management. Samjo was owned 100% by Mira; Josam was owned by Mira (40%), Samuel (30%) and Joseph (30%), and the other entities were owned by Samuel Hertz and Joseph Hertz (50% each). {01228379.docx.} 3 3 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 Radler sent retainer letters to Samuel Hertz and Mira Hertz, both dated July 23, 2008, for “real estate matters”, but the letters did not mention legal services for Wills and/or Trust Agreements for either of them.4 Copies of the retainer letters to Mira Hertz and to Samuel Hertz are annexed hereto collectively as Exhibit C. 7. Less than four months later, Rivkin Radler drafted forms of a Purported Will, Purported Trust and Purported Family Trust and other estate planning documents for the Decedent in which Defendant received all of the Decedent’s assets and interests in the shared Hertz Family Real Estate Entities 5 and Plaintiff was disinherited. Defendant is the sole nominated fiduciary and sole beneficiary under the Purported Will, Purported Trust and Purported Family Trust. C. Defendant’s Failure to Produce Documents 8. Throughout this litigation 6 ,Plaintiff has attempted to discover documents in support of his claims for undue influence and for the imposition of a constructive trust, yet Defendant and Rivkin Radler7, counsel for the Defendant and the Decedent, have employed one dilatory tactic after another to impede the discovery of relevant documents. 4 Defendant and/or Rivkin Radler has never produced a retainer letter for “estate planning” addressed to Mira Hertz and/or Defendant although invoices reflect estate planning work as discussed below. 5 Pursuant to the Purported Family Trust, Decedent transferred her 8% interest in Samjo to the Purported Family Trust on November 26, 2008. 6 There are three other motions pending which are sub judice: Plaintiff’s motion to disqualify Defendant’s counsel, Rivkin Radler, the law firm that drafted the Purported Will, Purported Trust and/or Purported Family Trust and represented both the Decedent and the Defendant; Defendant’s motion to consolidate and transfer; and, Defendant’s motion to stay discovery. Counsel for the parties appeared virtually for oral argument before the Honorable Richard Velasquez on November 29, 2021. A chart summarizing the pending motions, submissions by the parties, and corresponding NYSCEF numbers is annexed hereto as Exhibit D. 7 On February 24, 2022, Plaintiff served subpoenas duces tecum upon non-party witnesses, Rivkin Radler and three of its partners (Scott Eisenmesser, Esq., Yaron Kornblum, Esq., and Walter Gumersell, Esq.), who drafted the Purported Will, Purported Trust and Purported Family Trust and/or represented both the Decedent and Defendant in connection with those estate planning documents. The non-party witnesses served responses and {01228379.docx.} 4 4 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 9. Although Plaintiff served his first document demand in June 2020, Defendant has still not produced relevant documents, including but not limited to: Decedent’s financial and/or banking records; financial records and corporate tax returns for the entities in which the Decedent had a beneficial interest and/or transferred to the Defendant, Purported Trust and/or the Purported Family Trust; loans from the Decedent to Defendant; drafts, and/or transmittal letters from Rivkin Radler to the Decedent of the Purported Will, Purported Trust and/or Purported Family Trust; drafts and/or transmittal letters concerning a power of attorney and/or a health care proxy appointing the Defendant as agent; Decedent’s individual, federal, state and local tax returns; gift tax returns 8 ; documents concerning RS Construction, a company owned by Defendant to which, upon information and belief, he made improper payments from the Hertz Family Real Estate Entities9; unredacted invoices and/or transmittal letters sent by Rivkin Radler to Decedent and/or Defendant; payments (i.e., checks) sent by Defendant and/or Decedent to Rivkin Radler for preparing the Purported Will, Purported Trust and/or Purported Family Trust. objections, dated March 24, 2022, but did not produce a single document as discussed below. Copies of the Subpoenas Duces Tecum and Responses thereto are annexed hereto collectively as Exhibits E and F respectively. 8 Defendant produced a 2008 gift tax return, signed by the Decedent on September 21, 2011, showing Decedent’s transfer of 8% of Samjo to the Purported Family Trust. Upon information and belief, the Decedent made other gifts to Defendant which are relevant to Plaintiff’s claims of undue influence and claim for the imposition of a constructive trust. 9 When Plaintiff accused Defendant of making improper withdrawals from the Hertz Family Real Estate Entities for Defendant’s personal benefit, arguments between the brothers escalated. Compl., ¶¶ 61-62. Upon information and belief, in response to Plaintiff’s accusations, Defendant accused Plaintiff of being “paranoid” and turned Decedent against Plaintiff. Compl., ¶ 62. During his deposition on November 15, 2021, Defendant admitted writing checks to RS Construction from checking accounts for the Hertz Family Real Estate Entities, but he has not produced any back up documentation or receipts for these expenditures pursuant to document demands. Citations to the Deposition Transcript of Samuel Hertz, dated November 15, 2021, shall hereafter be designated as “Samuel Hertz Dep. Tr., 11/15/21, p. __, lines ___.” Samuel Hertz Dep. Tr., 11/15/21, pp. 54-67, 70-72. Copies of the pages referenced from Samuel Hertz’s Deposition Transcript, dated November 15, 2021, are annexed hereto collectively as Exhibit G. {01228379.docx.} 5 5 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 10. Defendant’s failure to produce documents is especially frustrating since Defendant testified that he has Decedent’s records in his house.10: Q. After your mom passed away, did you clean out her apartment? A. My wife did, yes. * * * Q. Your wife, Hagit? A. Correct. Q. What did Hagit do with your mother's personal papers? A. She gathered them in some boxes. Q. Are those boxes in your house? A. I think so. * * * Q. Would they be any place else? A. I think there was a storage place in the building, but I don't think she put it there. I have to ask her. I think it is in the house. I think so. Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, p. 149, lines 12-25; p. 150, lines 2-6. D. The Note of Issue 11. Plaintiff must file a Note of Issue on or before April 25, 2022 pursuant to a Stipulation Extending Time to File a Note of Issue so ordered by the Honorable Lawrence Knipel, on February 25, 2022 (“February 25, 2022 So Ordered Stipulation”). See NYSCEF No. 141. The February 25, 2022 So Ordered Stipulation also provided, inter alia, that Plaintiff and Defendant agreed to complete party discovery, including but not limited to completing the continued depositions of the parties, and/or responding to document requests, and/or producing 10 In response to a post-deposition demand letter requesting documents in Samuel Hertz’s possession that he removed from Mira Hertz’s apartment during her lifetime and following her death, Defendant responded he “is not in possession of any documents responsive to this request.” See ¶ 19 below, Exhibit L. {01228379.docx.} 6 6 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 documents on or before April 25, 2022.” See Stipulation Extending Time to File Note of Issue, ¶¶ 3, 5, NYSCEF No. 141. 12. Plaintiff cannot file a Note of Issue and Certificate of Readiness for Trial certifying that necessary discovery has been completed because discovery is not complete. Accordingly, Plaintiff brings this motion to extend beyond April 25, 2022 the date for filing a note of issue and certificate of trial readiness until, inter alia, this Court orders Defendant to comply with the outstanding discovery demands and to appear for a continued deposition. II. Plaintiff’s Document Demands and Defendant’s Refusal to Produce Documents 13. Throughout the course of this litigation, Defendant has brazenly refused to produce documents. Plaintiff served Defendant with Plaintiff’s First Notice of Discovery and Inspection on June 12, 2020 (hereinafter “Plaintiff’s June 2020 Document Demand”). A copy of Plaintiff’s June 2020 Document Demand is annexed hereto as Exhibit H. 14. After requesting and receiving an extension to respond to Plaintiff’s June 2020 Document Demand, Defendant responded on August 3, 2020 by serving Defendant’s Responses and Objections to Plaintiff’s First Document Demand (hereinafter “Defendant’s 2020 Document Response”), without producing a single document. 15. In Defendant’s 2020 Document Response, Defendant objected and refused to produce documents to 52 of the 87 document requests, including request numbers: 4, 6, 7, 12, 14, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 49, 51, 53, 54, 55, 56, 57, 58, 59, 69, 70, 71, 72, 73, 75, 77, 79, 80, 85, 86, 87. 16. In 35 of his responses to Plaintiff’s June 2020 Document Demand, Defendant stated, in part: “Subject to and without waiving any objections, documents … will be produced on a rolling basis, to the extent that such documents exist and are in Defendant’s possession.” {01228379.docx.} 7 7 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 [Emphasis supplied]. Defendant responded that he would produce documents “on a rolling basis” to request numbers: 1, 2, 3, 5, 8, 9, 10, 11, 13, 15, 17, 18, 29, 31, 32, 45, 48, 50, 52, 60, 61, 62, 63, 64, 65, 66, 67, 68, 74, 76, 78, 81, 82, 83, 8411. A copy of Defendant’s 2020 Document Response (with yellow highlighted responses for which Defendant refused to produce documents, and with blue highlighted responses for documents to be produced “on a rolling basis”) is annexed hereto as Exhibit I. 17. Pursuant to a Central Compliance Part Conference Order, so ordered by the Honorable Lawrence Knipel on May 19, 2021, Defendant was to serve a Second Supplemental Document Response and produce additional documents, if any, in response to Plaintiff’s June 2020 Document Demand on or before July 26, 2021, but Defendant failed to comply12 . See Central Compliance Part Conference Order, NYSCEF No. 82 (hereinafter the “May 2021 Compliance Part Order”). A Proposed Amended Central Compliance Part Conference Order (hereinafter “Proposed Amended Compliance Part Order”) was so ordered on or about August 24, 2021, NYSCEF No. 130. 18. Plaintiff deposed Defendant on October 28, 2021 and November 15, 2021. During the deposition on November 15, 2021, Plaintiff requested documents from Defendant and sent his counsel a post-deposition document request letter, dated December 20, 2021. A copy of Plaintiff’s Post-Deposition Demand Letter is annexed hereto as Exhibit J. 19. At a final compliance conference with court attorney referee Janice Purvis on December 22, 2021, the Court issued a Final Pre-Note Order, which was so ordered on January 11 Plaintiff filed an RJI via NYSCEF on August 13, 2020 seeking a preliminary conference to discuss, inter alia, a motion to compel Defendant to produce documents and/or a discovery scheduling order. See NYSCEF No. 23. On December 29, 2020, the Court issued a Case Scheduling Order. See NYSCEF No. 25. Pursuant to the Scheduling Order, a compliance conference was scheduled on May 11, 2021 at 9:30 am. 12 It is undisputed that Plaintiff fully complied with the Compliance Part Order and produced his Response to Defendant’s First Request for Production of Documents on June 2, 2021. {01228379.docx.} 8 8 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 5, 2021. See Final Pre-Note Order, NYSCEF No. 139. Pursuant to the Final Pre-Note Order, Plaintiff served a Plaintiff’s First Supplemental Notice of Discovery and Inspection on January 14, 2022, Defendant responded to Plaintiff’s Post Deposition Document Demand via letter, dated January 14, 2022, and Defendant responded to Plaintiff’s First Supplemental Notice of Discovery and Inspection on February 14, 2022. A copy of Plaintiff’s First Supplemental Notice of Discovery and Inspection is annexed hereto as Exhibit K. A copy of Defendant’s Letter Response, dated January 14, 2022, to Plaintiff’s Post-Deposition Demand letter is annexed hereto as Exhibit L. A copy of Defendant’s Responses and Objections to Plaintiff’s First Supplemental Notice of Discovery and Inspection (with red highlighted responses in red for responses where Defendant refused to produce documents, and with green highlighted responses for documents Defendant would produce in March 2022) is annexed hereto as Exhibit M.13 IV. All Documents Requested By Plaintiff Are Material and Necessary to the Prosecution of this Action and Must Be Produced 20. For almost two years, Plaintiff has been attempting to obtain documents which are material and necessary to the prosecution of the Action. A. Defendant’s Promise to Decedent 21. Documents relating to Decedent’s finances and her interests in the Hertz Family Real Estate Entities are particularly relevant since Defendant admitted, as alleged in the Complaint, that he and the Decedent entered into an agreement whereby he promised Decedent that if she disinherited Plaintiff, Defendant would “take care of” Plaintiff’s children. Compl., ¶¶ 34, 82-85, 88-96. 13 Defendant has not produced many relevant documents. Instead, he has produced, in approximately 14 piecemeal productions, mostly old photographs and videotapes of the Decedent. {01228379.docx.} 9 9 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 22. Defendant testified that in keeping with their agreement, he promised the Decedent that he would “take care of” Plaintiff’s children if she signed the Purported Will, Purported Trust and Purported Family Trust and gave her entire estate to Defendant: A. First, the only place we ever really discussed the will or anything was in the offices of Rivkin Radler. Not something we spoke about. Two, the only time she said about the grandchildren was on one of our trips here. She turned to me and said "he's got enough. I want you to take care of the grandchildren." I told her that I would because she knew she was making me responsible for everything. So I told her I would based on the condition that the estate taxes are paid first so I don't have to deal with that. And number two, he doesn't challenge the will. She said okay. That was that. * * * Q. This conversation took place in the offices of Rivkin Radler; is that correct? A. No, it took place in the car on the Belt Parkway. Q. It was on the way to a meeting with Rivkin Radler in Uniondale; correct? A. Correct. Q. You and your mother were the only people present in the car? A. Correct. Q. How did the conversation start? A. Just chatting about various things, and at some point my mother turned to me and I could see that by her tone of voice, the way she said it I could see she came to a decision. She said very decisively. She said "He has enough. I want you to take care of the grandchildren." I understood what she meant because I assumed. I knew we were coming here to possibly sign the new will and I told her okay…. {01228379.docx.} 10 10 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 See Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, p. 136, lines 5-17; p. 137, lines 4-25; p. 138, lines 2-8. 23. Through Defendant’s extraordinary deposition testimony, he admits that he made an agreement with the Decedent: Defendant was to receive the Decedent’s entire estate and Plaintiff was to be completely disinherited. As discussed below, Plaintiff needs to obtain full and complete full and complete discovery from Defendant and his attorneys as to Defendant’s “deal” with the Decedent. B. Documents Defendant is Refusing to Produce 26. Defendant’s deposition testimony reinforces Defendant’s management of the Decedent’s financial affairs. Yet, despite these undisputed facts, Defendant is refusing to produce the following documents concerning Decedent’s move from her apartment located across the hall from Plaintiff at 121 Sterling Avenue, Unit 3B, Brooklyn, NY, to an apartment closer to Defendant at 35 Prospect Park West, Apt., 6D, Brooklyn, NY 11215: Requests in Plaintiff’s Supplemental Summary of Defendant’s Document Demand Objections/Refusal To Produce 42. All documents and communications, from “…“…Defendant also objects to this Request November 26, 2005 to the present, concerning: because it seeks documents that are irrelevant (a) Decedent’s decision to move from 121 to the subject matter involved in this action and Sterling Place, Unit 3B, Brooklyn, NY 11217 is not reasonably calculated to lead to the to 35 Prospect Park West, Apt. 6D, Brooklyn, discovery of admissible evidence. In addition, NY 11215; (b) the purchase and renovation of Defendant further objects to this Request to the 35 Prospect Park West, Apt. 6D, Brooklyn, NY extent that it seeks production of documents 11215 by Decedent, and/or by any trust, by any protected by the attorney-client privilege, the entity, and/or by Defendant, and/or by any work product doctrine, or any other applicable entity in which Defendant or Decedent had an privileges and which does not fall within the interest; (c) any appraisal and/or valuation of narrow exception to the attorney-client 35 Prospect Park West, Apt. 6D, Brooklyn, NY privilege under CPLR 4503(b).” 11215; (d) the sale of 35 Prospect Park West, Apt. 6D, Brooklyn, NY 11215 and proceeds from such sale. {01228379.docx.} 11 11 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 27. Decedent’s decision to move from her apartment in the same building as Plaintiff to one closer to Defendant is material and relevant to this Action. Pl. Mem. of Law, pp. 2-414. Defendant testified that Apartment 6D at 35 Prospect Park West was transferred to the Purported Trust and recently sold for $2.4 million which is relevant to, inter alia, Plaintiff’s second cause of action for a constructive trust. See Exhibit G, Samuel Hertz Dep. Tr., 11/15/21, pp. 152-153. 28. Plaintiff alleged that Defendant was in a confidential relationship with Decedent, controlled her finances and exercised undue influence and duress to convince her to sign the Purported Will, Purported Trust and Purported Family Trust, pursuant to which she transferred her interest in Samjo to the Purported Family Trust. Compl., ¶¶ 27, 38, 63-85. Plaintiff also asserted a claim for a constructive trust over 50% of the assets of the Decedent’s estate. Compl, ¶¶ 88-96. As such, documents relating to Samjo and/or any of the Plaintiff’s finances, bank records or interests in the Hertz Family Real Estate Entities are relevant. Defendant refuses to produce such documents as follows: Requests in Plaintiff’s Supplemental Summary of Defendant’s Document Demand Objections/Refusal To Produce 36. All documents concerning Samjo Realty “…Defendant further objects to this Request to Corp., from November 26, 2005 through the extent that it seeks production of Decedent’s date of death, including but not documents protected by the attorney-client limited to: (a) articles of incorporation, by privilege, the work product doctrine, or any laws, minutes, share registers; (b) the initial other applicable privileges and which does not funding of the corporation; (c) financial fall within the narrow exception to the statements, and/or ledger sheets or other attorney-client privilege under CPLR 4503(b).” documents reflecting receipts, disbursements or balance sheets; (d) Federal, State and local tax returns; (e) bank and/or brokerage account statements; (f) the current valuation of assets, including appraisals of real estate or other assets; (g) the acquisition of real estate or other assets; (h) loans made from the Decedent or Samjo Realty Corp. to, or received by Samjo 14 Citations to Plaintiff’s Memorandum of Law, dated April 22, 2022, in support of the motion to compel and extend the time to file a note of issue shall hereafter be designated as “Pl. Mem. of Law, p. __.” {01228379.docx.} 12 12 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 Requests in Plaintiff’s Supplemental Summary of Defendant’s Document Demand Objections/Refusal To Produce Realty Corp. from, anyone or any entity, including banks; (i) the interest of and/or shares held by Defendant and the valuation of such shares; (j) assignment of loans from any entity; (k) the interest of and/or shares held by Decedent, the Purported Mira Hertz Revocable Trust, and/or the Purported Mira Hertz Family Trust, and the valuation of such shares; and/or (l) the sale and/or transfer of shares of Samjo Realty Corp. to anyone and/or to any trust, including but not limited to the Purported Mira Hertz Revocable Trust, and/or the Purported Mira Hertz Family Trust 40. All documents concerning any loans made “…In addition, Defendant further objects to to Defendant from any entity in which this Request to the extent that it seeks Defendant and/or Decedent had an ownership production of documents protected by the interest, including but not limited to a loan to attorney-client privilege, the work product Defendant for Defendant’s purchase of the doctrine, or any other applicable privileges and property and business called Northeastern Tire which does not fall within the narrow & Auto, Inc., and/or for Defendant’s or Hagit exception to the attorney-client privilege under Hertz’s purchase of any residence CPLR 4503(b).” 41. All documents and communications “…Defendant also objects to this Request concerning the purchase, sale, ownership because it seeks documents that are irrelevant and/or maintenance, and/or transfer of real to the subject matter involved in this action and estate wherever located: (a) by the Decedent, is not reasonably calculated to lead to the or by a company owned in part or in whole by discovery of admissible evidence. In addition, the Decedent, or by any entity in which Defendant further objects to this Request to the Decedent had an interest, or by the Purported extent that it seeks production of documents Mira Hertz Revocable Trust, and/or by the protected by the attorney-client privilege, the Purported Mira Hertz Family Trust, to: work product doctrine, or any other applicable Defendant and/or Hagit Hertz; or, (b) from privileges and which does not fall within the anyone to the Decedent, or to a company narrow exception to the attorney-client owned in part or in whole by the Decedent, or privilege under CPLR 4503(b).” to any entity in which the Decedent had an interest, or to the Purported Mira Hertz Revocable Trust, and/or to the Purported Mira Hertz Family Trust 43. With respect to real estate owned, in part or “…“…Defendant also objects to this Request in whole by the Decedent and/or entities in because it seeks documents that are irrelevant which the Decedent had an interest, including to the subject matter involved in this action and but not limited to Samjo Realty Corp. and/or is not reasonably calculated to lead to the Josam Realty Corp., partnerships, limited discovery of admissible evidence. In addition, liability companies, and/or by the Purported Defendant further objects to this Request to the Mira Hertz Revocable Trust, and/or by the extent that it seeks production of documents {01228379.docx.} 13 13 of 22 FILED: KINGS COUNTY CLERK 04/22/2022 07:48 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 04/22/2022 Requests in Plaintiff’s Supplemental Summary of Defendant’s Document Demand Objections/Refusal To Produce Purported Mira Hertz Family Trust, the protected by the attorney-client privilege, the following documents are requested: work product doctrine, or any other applicable privileges and which does not fall within the a. All bank and brokerage accounts, narrow exception to the attorney-client including but not limited to, savings privilege under CPLR 4503(b).” accounts, checking accounts, money market accounts, stocks and bonds in the name of the Decedent, the Purported Mira Hertz Revocable Trust, and/or by the Purported Mira Hertz Family Trust or any other trust; b. All ledger sheets or other documents reflecting receipts, disbursements or balance sheets; c. All loans, mortgages and/or refinancings; and d. All Federal, State and local tax returns 45. All documents and communications “…Defendant also objects to this Request concerning any accounts at Signature Bank, because it seeks documents that are irrelevant Bank Leumi and/or Bank Hapoalim in which to the subject matter involved in this action