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Direct Line 914-385-1029
Email: inimetz@MccarthyFingar.com
June 15, 2022
VIA NYSCEF
Honorable Lawrence Knipel
Supreme Court of the State of New York, Kings County
Central Compliance Conference Part
360 Adams Street
Brooklyn, NY 11201
Re: Joseph Hertz, Plaintiff v. Samuel Hertz, Defendant, Index No. 526061/2019
Dear Justice Knipel:
We represent plaintiff Joseph Hertz (“Plaintiff”) in the above-referenced action. Late this
afternoon, two proposed orders to show cause (“Proposed Orders to Show Cause”) were e-filed,
via NYSCEF, by Rivkin Radler LLP: one on behalf of defendant Samuel Hertz (“Defendant”);
and, one on behalf of non-parties, Rivkin Radler LLP, Scott Eisenmesser, Esq., Yaron
Kornblum, Esq. and Walter Gumersell, Esq. (“Non-Parties”). Both Proposed Orders to Show
Cause seek, inter alia, a temporary restraining order pending the hearing and determination of
their motions for reargument and a stay of the enforcement of your Honor’s Order, dated May
11, 2022 (the “Order”), NYSCEF Nos. 180-181, granting Plaintiff’s motion to compel discovery
and denying their cross-motions for a protective order.
We respectfully submit that, in reviewing the Proposed Orders to Show Cause, this Court
must not make a determination in conflict with any decision made by the Appellate Division,
Second Department, in this particular matter. In this regard, the moving papers of the Defendant
and the Non-Parties barely mention the following:
a. the Defendant and the Non-Parties e-filed a Notice of Appeal of the Order and, then,
e-filed two proposed orders to show cause in the Appellate Division, Second
Department (“Appellate Division Orders to Show Cause”), in which they each sought
a temporary restraining order (“TRO”). pending a determination of their motions for a
stay of the Order in the Appellate Division, Second Department. See NYSCEF Nos.
1, 6-7; Appellate Div. Docket No. 2022-04063;
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Honorable Lawrence Knipel
June 15, 2022
Page 2
b. On June 10, 2022, the Appellate Division (J. Duffy) signed the Appellate Division
Orders to Show Cause, but denied the TROs sought by the Defendant and the Non-
Parties; and
c. As indicated by the Appellate Division Orders to Show Cause, Plaintiff’s opposition
papers to the application for their motions for a stay are due this coming Tuesday,
June 21, 2022, and the motions for a stay will then be fully submitted for a decision.
We respectfully submit that, in seeking interim relief through the Proposed Orders to
Show Cause, the Defendant and the Non-Parties are improperly attempting to “appeal” and
effectively reverse the decision made by the Appellate Division on June 10, 2022, in the
Appellate Division’s denial of their applications for a TRO. Yet, counsel for Defendant and the
Non-Parties only perfunctorily reference the Appellate Division Orders to Show Cause and the
Appellate Division’s denial of their application for a TRO. See Wilck Affirmation, ¶ 13,
NYSCEF No. 187, Exhibit F (signed OSC/strike TRO), NYSCEF No. 193; Piccione
Affirmation, ¶¶ 20, 56-57, NYSCEF No. 196, Exhibit N (signed OSC/strike TRO), NYSCEF
No. 210. If either the Defendant or the Non-Parties desire to challenge the correctness of the
Appellate Division’s refusal to grant them a TRO, their remedy is more properly before either
the Appellate Division or the Court of Appeals.
Finally, the application by Defendant and the Non-Parties should be denied as they are
seeking essentially the same relief, a motion for a stay, in the Appellate Division, Second
Department. See Bey v. Whinnery, 2020 WL 6766383 at *2 (Sup. Ct., Kings Co.
2020)(“[l]itigants who repeatedly make similar motions numerous times can cause unwarranted
costs to their adversaries while imposing a substantial burden on the courts by expending the
court’s limited resources. Where litigants abuse the judicial process by continually filing motions
reasserting claims and seeking relief already requested, equity may enjoin such vexatious
litigation.”)(citations omitted). We note that counsel for the Defendant and the Non-Parties did
not insert the standard paragraph in their affirmations that “no application for the same or similar
relief is pending in this or any other court”.
I am available tomorrow if the Court wishes to schedule oral argument on the Proposed
Orders to Show Cause.
Respectfully submitted,
Irma K. Nimetz
cc: Justin Piccione, Esq. (via NYSCEF)
Rivkin Radler LLP
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Honorable Lawrence Knipel
June 15, 2022
Page 3
Attorneys for Defendant, Samuel Hertz
David Wilck, Esq. (via NYSCEF)
Rivkin Radler LLP
Attorneys for Non-Parties
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Direct Line 914-385-1029 Email: inimetz@MccarthyFingar.com June 15, 2022 VIA NYSCEF Honorable Lawrence Knipel Supreme Court of the State of New York, Kings County Central Compliance Conference Part 360 Adams Street Brooklyn, NY 11201 Re: Joseph Hertz, Plaintiff v. Samuel Hertz, Defendant, Index No. 526061/2019 Dear Justice Knipel: We represent plaintiff Joseph Hertz (“Plaintiff”) in the above-referenced action. Late this afternoon, two proposed orders to show cause (“Proposed Orders to Show Cause”) were e-filed, via NYSCEF, by Rivkin Radler LLP: one on behalf of defendant Samuel Hertz (“Defendant”); and, one on behalf of non-parties, Rivkin Radler LLP, Scott Eisenmesser, Esq., Yaron Kornblum, Esq. and Walter Gumersell, Esq. (“Non-Parties”). Both Proposed Orders to Show Cause seek, inter alia, a temporary restraining order pending the hearing and determination of their motions for reargument and a stay of the enforcement of your Honor’s Order, dated May 11, 2022 (the “Order”), NYSCEF Nos. 180-181, granting Plaintiff’s motion to compel discovery and denying their cross-motions for a protective order. We respectfully submit that, in reviewing the Proposed Orders to Show Cause, this Court must not make a determination in conflict with any decision made by the Appellate Division, Second Department, in this particular matter. In this regard, the moving papers of the Defendant and the Non-Parties barely mention the following: a. the Defendant and the Non-Parties e-filed a Notice of Appeal of the Order and, then, e-filed two proposed orders to show cause in the Appellate Division, Second Department (“Appellate Division Orders to Show Cause”), in which they each sought a temporary restraining order (“TRO”). pending a determination of their motions for a stay of the Order in the Appellate Division, Second Department. See NYSCEF Nos. 1, 6-7; Appellate Div. Docket No. 2022-04063; {01243425.docx.} Honorable Lawrence Knipel June 15, 2022 Page 2 b. On June 10, 2022, the Appellate Division (J. Duffy) signed the Appellate Division Orders to Show Cause, but denied the TROs sought by the Defendant and the Non- Parties; and c. As indicated by the Appellate Division Orders to Show Cause, Plaintiff’s opposition papers to the application for their motions for a stay are due this coming Tuesday, June 21, 2022, and the motions for a stay will then be fully submitted for a decision. We respectfully submit that, in seeking interim relief through the Proposed Orders to Show Cause, the Defendant and the Non-Parties are improperly attempting to “appeal” and effectively reverse the decision made by the Appellate Division on June 10, 2022, in the Appellate Division’s denial of their applications for a TRO. Yet, counsel for Defendant and the Non-Parties only perfunctorily reference the Appellate Division Orders to Show Cause and the Appellate Division’s denial of their application for a TRO. See Wilck Affirmation, ¶ 13, NYSCEF No. 187, Exhibit F (signed OSC/strike TRO), NYSCEF No. 193; Piccione Affirmation, ¶¶ 20, 56-57, NYSCEF No. 196, Exhibit N (signed OSC/strike TRO), NYSCEF No. 210. If either the Defendant or the Non-Parties desire to challenge the correctness of the Appellate Division’s refusal to grant them a TRO, their remedy is more properly before either the Appellate Division or the Court of Appeals. Finally, the application by Defendant and the Non-Parties should be denied as they are seeking essentially the same relief, a motion for a stay, in the Appellate Division, Second Department. See Bey v. Whinnery, 2020 WL 6766383 at *2 (Sup. Ct., Kings Co. 2020)(“[l]itigants who repeatedly make similar motions numerous times can cause unwarranted costs to their adversaries while imposing a substantial burden on the courts by expending the court’s limited resources. Where litigants abuse the judicial process by continually filing motions reasserting claims and seeking relief already requested, equity may enjoin such vexatious litigation.”)(citations omitted). We note that counsel for the Defendant and the Non-Parties did not insert the standard paragraph in their affirmations that “no application for the same or similar relief is pending in this or any other court”. I am available tomorrow if the Court wishes to schedule oral argument on the Proposed Orders to Show Cause. Respectfully submitted, Irma K. Nimetz cc: Justin Piccione, Esq. (via NYSCEF) Rivkin Radler LLP {01243425.docx.} Honorable Lawrence Knipel June 15, 2022 Page 3 Attorneys for Defendant, Samuel Hertz David Wilck, Esq. (via NYSCEF) Rivkin Radler LLP Attorneys for Non-Parties {01243425.docx.}