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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
EXHIBIT “J”
FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021
Hon. Deborah H. Karalunas, J.S.C.
Plaintiff,
FIRST SET OF
-vs- INTERROGATORIES
MELINDA BURDICK BOWE,
Defendant.
YOU ARE HEREBY NOTIFIED to answer under oath pursuant to CPLR 3133 the
following Interrogatories with respect to the Defendant's answer, affirmative defenses and .
counterclaims based upon breach of contract and to serve your answers to these Interrogatories
upon the undersigned attorneys for the Plaintiff Costello, Cooney & Fearon, PLLC within twenty
(20) days after service upon you.
YOU ARE HEREBY NOTIFIED that each and every one of the following
Interrogatories are deemed continuing so as to require supplemental answers if you obtain further
information pertinent thereto between the time the answers are served and the time of trial.
DEFINITIONS AND INSTRUCTIONS:
1. Wherever appropriate in these Interrogatories the singular form of a word shall be
interpreted as plural.
"And" "or"
2. as well as shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of these Interrogatories any information which might
otherwise be construed to be outside their scope.
3. Whenever answering each Interrogatory, the answer should identify each document
relied upon which forms a basis for the answer given or in any way corroborates the answer given
FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
or the substance of the answer given. Every document to be so identified may be produced for
inspection in lieu of such identification.
4. Each Interrogatory listed herein shall be construed to include supplemental
any
information, knowledge or data in response to these Interrogatories which is later discovered by
Defendant.
"document"
5. The term is defined to include all tangible things which human
by
communication is transmitted or stored, including but not limited to, letters,reports, memoranda,
books, drawings, photographs, publications, diaries, contracts, receipts, vouchers, magnetic or
phonographic recordings, statements, invoices, canceled checks or copies or reductions of any of
the foregoing now in the possession, care, custody or control (actual or constructive) of the
Defendant.
documents"
6. The term "all means every document as above-defined known to you
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and every such document which can be located or discovered by reasonably diligent efforts.
"person''
7. .The term means any natural person, corporation, partnership, association,
organization, team or group of natural persons.
behalf"
8. The term "anyone acting on your includes Defendant and her accountants, agents,
attorneys, spouse, children, employees, servants, consultants, contractors, investigators, tax preparers,
technical consultants, representatives or any person or entity acting on her behalf.
"identify"
9. The term when used in reference to a natural person means to state to the
fullest extent possible his or her full name, present or last known address, and position at the time
in question.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
"identify"
10. The term when used in reference to a place means to state to the fullest
extent possible the street address, city and state in which itis situated, or if such identification is
not possible, otherwise to describe its location.
"identify"
11. The term when used in reference to a document means to state the date,
author and type of document (e.g., letter,memorandum, telegram, chart, etc.) or to provide some
other means of identifying it, and to disclose its present location and custodian. If any document
was but no longer is in your possession or subject to your control, state what disposition was made
of it.
"identify"
12. The term when used with respect to an act, occurrence, statement or
conduct (hereinafter collectively called "act") means to describe the substance of the event or
events constituting such act; and to state the date when such act occurred; the identity of each and
every person or persons participating in such act; the identity of allother persons, ifany, present
when such act occurred; whether any minutes, notes, memoranda or other recordation of such act
was made; whether such recordation now exists; and the identity of the person or persons presently
having custody or control of such recordation.
13. You are requested to furnish all information in your possession and all information
available to you, not merely such information as you know of your own personal knowledge but
also all knowledge that is available to you, your representatives, spouse, attorneys, accountants,
bookkeepers, tax preparers, consultants, contractors, and agents, by reason of inquiry including
inquiry of their representative.
14. If you are unable to answer the following Interrogatories completely, answer to the
extent possible, specifically stating the reason for your inability to answer the remainder and
stating whatever information or knowledge you have concerning the unanswered portion.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
15. Unless otherwise specified, the period applicable to these Interrogatories shall
begin on March 17, 2017, and continue to present.
"Complaint"
16. The term means and includes CC&F's Complaint in this action.
"Answer"
17. The term means and shall include Defendant's Answer, all
including
affirmative defenses and counterclaim(s) in this action.
"custodian"
18. The term refers to the person having possession, custody or control of any
writing or physical evidence.
"writing"
19. The term means any and allhandwritten material, typewritten material, printed
material, photocopies, photographs and every other means of recording upon any tangible thing,
together with any form of communication or other representation which would constitute a writing
within the meaning of the Civil Practice Law and Rules.
"document" "writing"
20. The terms and are further defined to include all things which are
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electronically or digitally created, transmitted or stored.
identification" "identify"
21. The terms "set forth an or mean to describe a writing with such
particularity as you would require in a motion to produce or document description contained in a
subpoena duces tecum.
to" to"
22. The terms "relates or "related mean documents or information that support,
constitute, form the basis of, memorialize or evidence the information otherwise described or requested
in the request.
Agreement"
23. The term "Operating means and shall refer to CC&F's Operating Agreement,
entered into between Defendant and other members of CC&F effective March 17, 2017, as set forth in the
Complaint, and any amendments thereto.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
Agreement"
24. The term "Of Counsel means and shall refer to the Of Counsel Agreement
entered into between CC&F and Defendant, effective December 1, 2020, as set forth in the Complaint and
Defendant's First Counterclaim.
Account"
25. The term "Capital means and shall refer to Defendant's Capital Account,
maintained beginning March 17, 2017 for CC&F's day-to-day working capital as necessary for
operating expenses.
"Withdrawal"
26. The term means and shall refer to Defendant's withdrawal as a member of
CC&F, on or about November 23, 2020 and as permitted under the terms of the Operating Agreement.
Resignation"
27. The term "Voluntary means and shall refer to Defendant's unilateral
termination of her Of Counsel Agreement on April 18, 2021 and discontinuation of her independent
contractor relationship with CC&F.
"Draw"
28. The term means and shall refer to the bi-monthly advances made to Defendant
toward any compensation earned pursuant to the terms of the Of Counsel Agreement.
"Distribution"
29. The term means and shall refer to. any distribution or disbursement of
profits or other funds made to Defendant as a member of CC&F from March 17, 2017 to April 18, 2021
"Defendant," "Melinda" Bowe"
30. The terms and/or "Ms. mean and shall refer to
Defendant, her accountants, agents, attorneys, spouse, children, employees, servants, consultants,
contractors, investigators, tax preparers, technical consultants, representatives or any person or
entity acting on her behalf.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
INTERROGATORIES TO BE ANSWERED
INTERROGATORY NO. 1:
document"
Identify each and every "governing of CC&F, including paragraph or section of
each, upon which Defendant will rely to support her eighth affirmative defense that one or more of
CC&F's causes of action are barred in whole or in part, and set forth each and every manner itwill
be claim each identified paragraph or section bars any claim, including identifying the claim
supposedly barred.
INTERROGATORY NO. 2:
Identify each and every act, omission or communication relating to Defendant's claim that
one or more of CC&F's causes of action are barred in or whole or in part by consent, ratification,
and/or acquiescence.
INTERROGATORY NO. 3:
With respect to Defendant's Nineteenth Affirmative Defense, set forth each and every
manner itwill be claimed there was an absence of any fiduciary duty owed CC&F by Defendant at
any time between March 17, 2017 and April 18, 2021,
INTERROGATORY NO. 4: .
Concermng Defendant's Twentieth Affirmative Defense, set forth each and every manner
itwill be claimed the quoted language has bearing upon or is relevant to CC&F's causes of action,
Defendant's defense thereto or Defendant's counterclaims, including each and every manner it
will be claimed CC&F is seeking to hold any member liable for its debts, liabilities, or other
obligations.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
INTERROGATORY NO. 5:
As to Defendant's Twenty-First Affirmative Defense, set forth each and every manner it
will be claimed the quoted language has bearing upon or is relevant to CC&F's causes of action,
Defendant's defense thereto or Defendant's counterclaims, including each and every manner it
will be alleged CC&F is seeking to recover from Defendant for any released obligations of CC&F.
INTERROGATORY NO. 6:
Identify each and every client which Defendant will claim she originated for the benefit of
CC&F between March 17, 2017 and April 18, 2021.
INTERROGATORY NO. 7:
Does Defendant contend she was not obligated to repay a negative capital account balance
following her Withdrawal? If so, set forth each and every manner itwill be so claimed, with
specific ieference to any contractual, statutory or common-law authority upon which Defendant
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will rely.
INTERROGATORY NO. 8:
Does Defendant allege she is entitled to any 2021 distiibutions made to CC&F's members?
If so, set forth each and every mãññcr it will be so claimed, with specific reference to any
contractual, or common-law upon which Defendant will rely.
statutory authority
INTERROGATORY NO. 9:
Does Defendant claim she is entitled to retain all funds previously remitted to her by
CC&F? If so, set forth the basis for such contention, with specific reference to any contractual,
statutory or common-law authority upon which Defendant will rely to support such position.
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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022
INTERROGATORY NO. 10:
Set forth an itemization of Defendant's damages claim as a result of CC&F's:
A. Breach of the Operating Agreement;
B. Breach of the Implied Covenant of Good Faith and Fair Dealing;
C. Breach of the Of Counsel Agreement;
D. Conversion;
E. Quantum Meruit; and
F. Unjust Enrichment.
PLEASE TAIC FURTHER NOTICE, that in the event of failure or refusal to comply
with any of these Interrogatories, said Defendant will apply to the Court for an order compelling
compliance pursuant to CPLR 3124.
PLEASE TAKE FURTHER NOTICE, that said Interrogatories shall be deemed to
continue during the pendency of this action, including the trial thereof.
DATED: November 16, 2021
COSTELLO, COO Y & FEARON, PLLC
PAUL 6. FERRARA
Attorneys for the Plaintiff
Office and Post Office Address
211 West Jefferson Street
Syracuse, New York 13202
Telephone: (315) 422-1152
TO: WOODS OVIATT GILMAN, LLP
Attorneys for the Defendant
Office and Post Office Address
1900 Bausch & Lomb Place
Rochester, New York 14604
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Preview
FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 EXHIBIT “J” FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021 Hon. Deborah H. Karalunas, J.S.C. Plaintiff, FIRST SET OF -vs- INTERROGATORIES MELINDA BURDICK BOWE, Defendant. YOU ARE HEREBY NOTIFIED to answer under oath pursuant to CPLR 3133 the following Interrogatories with respect to the Defendant's answer, affirmative defenses and . counterclaims based upon breach of contract and to serve your answers to these Interrogatories upon the undersigned attorneys for the Plaintiff Costello, Cooney & Fearon, PLLC within twenty (20) days after service upon you. YOU ARE HEREBY NOTIFIED that each and every one of the following Interrogatories are deemed continuing so as to require supplemental answers if you obtain further information pertinent thereto between the time the answers are served and the time of trial. DEFINITIONS AND INSTRUCTIONS: 1. Wherever appropriate in these Interrogatories the singular form of a word shall be interpreted as plural. "And" "or" 2. as well as shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Interrogatories any information which might otherwise be construed to be outside their scope. 3. Whenever answering each Interrogatory, the answer should identify each document relied upon which forms a basis for the answer given or in any way corroborates the answer given FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 or the substance of the answer given. Every document to be so identified may be produced for inspection in lieu of such identification. 4. Each Interrogatory listed herein shall be construed to include supplemental any information, knowledge or data in response to these Interrogatories which is later discovered by Defendant. "document" 5. The term is defined to include all tangible things which human by communication is transmitted or stored, including but not limited to, letters,reports, memoranda, books, drawings, photographs, publications, diaries, contracts, receipts, vouchers, magnetic or phonographic recordings, statements, invoices, canceled checks or copies or reductions of any of the foregoing now in the possession, care, custody or control (actual or constructive) of the Defendant. documents" 6. The term "all means every document as above-defined known to you 8 and every such document which can be located or discovered by reasonably diligent efforts. "person'' 7. .The term means any natural person, corporation, partnership, association, organization, team or group of natural persons. behalf" 8. The term "anyone acting on your includes Defendant and her accountants, agents, attorneys, spouse, children, employees, servants, consultants, contractors, investigators, tax preparers, technical consultants, representatives or any person or entity acting on her behalf. "identify" 9. The term when used in reference to a natural person means to state to the fullest extent possible his or her full name, present or last known address, and position at the time in question. -2- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 "identify" 10. The term when used in reference to a place means to state to the fullest extent possible the street address, city and state in which itis situated, or if such identification is not possible, otherwise to describe its location. "identify" 11. The term when used in reference to a document means to state the date, author and type of document (e.g., letter,memorandum, telegram, chart, etc.) or to provide some other means of identifying it, and to disclose its present location and custodian. If any document was but no longer is in your possession or subject to your control, state what disposition was made of it. "identify" 12. The term when used with respect to an act, occurrence, statement or conduct (hereinafter collectively called "act") means to describe the substance of the event or events constituting such act; and to state the date when such act occurred; the identity of each and every person or persons participating in such act; the identity of allother persons, ifany, present when such act occurred; whether any minutes, notes, memoranda or other recordation of such act was made; whether such recordation now exists; and the identity of the person or persons presently having custody or control of such recordation. 13. You are requested to furnish all information in your possession and all information available to you, not merely such information as you know of your own personal knowledge but also all knowledge that is available to you, your representatives, spouse, attorneys, accountants, bookkeepers, tax preparers, consultants, contractors, and agents, by reason of inquiry including inquiry of their representative. 14. If you are unable to answer the following Interrogatories completely, answer to the extent possible, specifically stating the reason for your inability to answer the remainder and stating whatever information or knowledge you have concerning the unanswered portion. -3- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 15. Unless otherwise specified, the period applicable to these Interrogatories shall begin on March 17, 2017, and continue to present. "Complaint" 16. The term means and includes CC&F's Complaint in this action. "Answer" 17. The term means and shall include Defendant's Answer, all including affirmative defenses and counterclaim(s) in this action. "custodian" 18. The term refers to the person having possession, custody or control of any writing or physical evidence. "writing" 19. The term means any and allhandwritten material, typewritten material, printed material, photocopies, photographs and every other means of recording upon any tangible thing, together with any form of communication or other representation which would constitute a writing within the meaning of the Civil Practice Law and Rules. "document" "writing" 20. The terms and are further defined to include all things which are 8 electronically or digitally created, transmitted or stored. identification" "identify" 21. The terms "set forth an or mean to describe a writing with such particularity as you would require in a motion to produce or document description contained in a subpoena duces tecum. to" to" 22. The terms "relates or "related mean documents or information that support, constitute, form the basis of, memorialize or evidence the information otherwise described or requested in the request. Agreement" 23. The term "Operating means and shall refer to CC&F's Operating Agreement, entered into between Defendant and other members of CC&F effective March 17, 2017, as set forth in the Complaint, and any amendments thereto. -4- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 Agreement" 24. The term "Of Counsel means and shall refer to the Of Counsel Agreement entered into between CC&F and Defendant, effective December 1, 2020, as set forth in the Complaint and Defendant's First Counterclaim. Account" 25. The term "Capital means and shall refer to Defendant's Capital Account, maintained beginning March 17, 2017 for CC&F's day-to-day working capital as necessary for operating expenses. "Withdrawal" 26. The term means and shall refer to Defendant's withdrawal as a member of CC&F, on or about November 23, 2020 and as permitted under the terms of the Operating Agreement. Resignation" 27. The term "Voluntary means and shall refer to Defendant's unilateral termination of her Of Counsel Agreement on April 18, 2021 and discontinuation of her independent contractor relationship with CC&F. "Draw" 28. The term means and shall refer to the bi-monthly advances made to Defendant toward any compensation earned pursuant to the terms of the Of Counsel Agreement. "Distribution" 29. The term means and shall refer to. any distribution or disbursement of profits or other funds made to Defendant as a member of CC&F from March 17, 2017 to April 18, 2021 "Defendant," "Melinda" Bowe" 30. The terms and/or "Ms. mean and shall refer to Defendant, her accountants, agents, attorneys, spouse, children, employees, servants, consultants, contractors, investigators, tax preparers, technical consultants, representatives or any person or entity acting on her behalf. -5- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 INTERROGATORIES TO BE ANSWERED INTERROGATORY NO. 1: document" Identify each and every "governing of CC&F, including paragraph or section of each, upon which Defendant will rely to support her eighth affirmative defense that one or more of CC&F's causes of action are barred in whole or in part, and set forth each and every manner itwill be claim each identified paragraph or section bars any claim, including identifying the claim supposedly barred. INTERROGATORY NO. 2: Identify each and every act, omission or communication relating to Defendant's claim that one or more of CC&F's causes of action are barred in or whole or in part by consent, ratification, and/or acquiescence. INTERROGATORY NO. 3: With respect to Defendant's Nineteenth Affirmative Defense, set forth each and every manner itwill be claimed there was an absence of any fiduciary duty owed CC&F by Defendant at any time between March 17, 2017 and April 18, 2021, INTERROGATORY NO. 4: . Concermng Defendant's Twentieth Affirmative Defense, set forth each and every manner itwill be claimed the quoted language has bearing upon or is relevant to CC&F's causes of action, Defendant's defense thereto or Defendant's counterclaims, including each and every manner it will be claimed CC&F is seeking to hold any member liable for its debts, liabilities, or other obligations. -6- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 INTERROGATORY NO. 5: As to Defendant's Twenty-First Affirmative Defense, set forth each and every manner it will be claimed the quoted language has bearing upon or is relevant to CC&F's causes of action, Defendant's defense thereto or Defendant's counterclaims, including each and every manner it will be alleged CC&F is seeking to recover from Defendant for any released obligations of CC&F. INTERROGATORY NO. 6: Identify each and every client which Defendant will claim she originated for the benefit of CC&F between March 17, 2017 and April 18, 2021. INTERROGATORY NO. 7: Does Defendant contend she was not obligated to repay a negative capital account balance following her Withdrawal? If so, set forth each and every manner itwill be so claimed, with specific ieference to any contractual, statutory or common-law authority upon which Defendant 3 will rely. INTERROGATORY NO. 8: Does Defendant allege she is entitled to any 2021 distiibutions made to CC&F's members? If so, set forth each and every mãññcr it will be so claimed, with specific reference to any contractual, or common-law upon which Defendant will rely. statutory authority INTERROGATORY NO. 9: Does Defendant claim she is entitled to retain all funds previously remitted to her by CC&F? If so, set forth the basis for such contention, with specific reference to any contractual, statutory or common-law authority upon which Defendant will rely to support such position. -7- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/24/2022 INTERROGATORY NO. 10: Set forth an itemization of Defendant's damages claim as a result of CC&F's: A. Breach of the Operating Agreement; B. Breach of the Implied Covenant of Good Faith and Fair Dealing; C. Breach of the Of Counsel Agreement; D. Conversion; E. Quantum Meruit; and F. Unjust Enrichment. PLEASE TAIC FURTHER NOTICE, that in the event of failure or refusal to comply with any of these Interrogatories, said Defendant will apply to the Court for an order compelling compliance pursuant to CPLR 3124. PLEASE TAKE FURTHER NOTICE, that said Interrogatories shall be deemed to continue during the pendency of this action, including the trial thereof. DATED: November 16, 2021 COSTELLO, COO Y & FEARON, PLLC PAUL 6. FERRARA Attorneys for the Plaintiff Office and Post Office Address 211 West Jefferson Street Syracuse, New York 13202 Telephone: (315) 422-1152 TO: WOODS OVIATT GILMAN, LLP Attorneys for the Defendant Office and Post Office Address 1900 Bausch & Lomb Place Rochester, New York 14604 -8-