Preview
FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
DVK REALTY LLC,
Index No.158676/19
Plaintiff,
VERIFIED RESPONSES AND
-against- OBJECTIONS TO DEFENDANT'S
NOTICE TO ADMIT
CREMB REALTY INC.
Defendant.
PLEASE TAKE NOTICE, that PlaintifE, DVK Realty LLC ("Plaintiff"), by and through
their undersigned legal counsel, hereby objects and responds to Defendant's, Cremb Realty Inc.
("Defendmñ"), Notice to Admit, dated December 8, 2020 (the "Notice to Admit"), as follows:
PLEASE TAKE FURTHER NOTICE, that the responses and objections contained
herein are interposed without prejudice to, or waiver of, Plaintiff's right to vacate the Notice to
Admit on the grounds that the Notice to Admit, whether in whole or in part, seeks to compel the
admission of fundamental and material issues, or ultimate facts, that can only be resolved after a
full trial and/or seeks admissions on fundamental and material issues, which are in contention.
Based upon the foregoing, the Notice to Admit is defective and/or improper, and Plaintiff expressly
reserves any and allof itsrights and remedies based upon the defective and/or improper nature of
the Notice to Admit.
GENERAL OBJECTIONS
L Plaintiff objects to the requests for admissions to the extent they seek admissions
and discovery beyond the scope permitted by the New York Civil Practice Law & Rules ("CPLR"),
including, without limitation, CPLR § 3123 and/or other applicable provisions of law.
2. Plaintiff objects to each and every request for an adrdssion to the extent that a
matter requested to be admitted presents a genuine issue for trial.
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3. Plaintiff objects to the requests for admissions to the extent they seek information
protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, the
joint defense or common interest privilege or any other applicable privilege or protection. Any
information subject to any such privilege or immunity that is disclosed by Plaintiff shall not
constitute or be deemed to constitute a waiver of such privilege or immunity.
4. Plaintiff objects to the request for admk¤ions to the extent they seek admissions as
to matters that are not relevant to this action. Nothing contained in any response herein shall be
deemed to be an admission, concession, or waiver by Plaintiff as to the relevance or materiality of
any information.
5, Plaintiff object to the requests for admissions to the extent they seek to require
Plaintiff to respond on behalf of any other person or entity.
6. Plaintiff objects to the requests for admissions to the extent they seek information
that is publicly available, already in Defendant's possesion, custody, or control, or to which
Defendant has equal or greater access through other sources.
7. Plaintiff object to the requests for admissions to the extent they seek the admission
of fundamental and material issues or ultimate or conclusory facts.
8. Plaintiff objects to the requests for admissions to the extent that they seek the
admission of fundamental and material issues, or ultimate facts,in contention and/or issues or facts
that can only be resolved after a full trial,
9. Plaintiff objects to the requests for admissions to the extent that they contain
questions that would require Plaintiff to concede material facts or issues, which are in contention
or dispute.
10, Plaintiff objects to the requests for admissions, in that, the notice to admit is being
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used as a substitute for existing discovery devices, which, as a matter of law is prohibited
11. Plaintiff objects to the requests for admissions, including the definitions therein, if
any, on the grounds, and to the extent, that they are vague, ambiguous, unduly burdensome, and
overly broad.
12. Plaintiffreserves their right to object to the admimibility of any and allitems which
are the subject of the Notice to Admit. Plaintiff's responses herein shall not be construed as an
admission that any such items are relevant, admissible, non-prejudicial or non-inflammatory.
13. Plaintiff objects to the requests for admissions to the extent they are improper as to
fonn.
14. The foregoing general objections (collectively, the "General Objections") apply to
and are incorporated into each specific response below, whether or not expressly incorporated by
reference in such individual response.
15. Plaintiff reserves the right to amend, modify, withdraw and/or supplement their
responses as allowed by law.
16. To the extent that any request set forth in the Notice to Admit is not specifically
addressed herein, then Plaintiff denies such requests.
RESPONSES AND OBJECTIONS TO NOTICES TO ADMIT
Request No. 1
That on September 7, 1977 DVK Realty, Inc. entered into a lease agreement with James Frontero
for the property and premises located on the east side of Pine Hollow Road, south of Locust Street,
in Oyster Bay, County of Nassau, State of New York.
Response
In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent
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that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or
other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the
Request seeks admissions and/or information which is already in Defendant's possession, custody
and/or control. Plaintiff further objects to this Request on the grounds that it isbeyond the scope
of a proper notice to admit, in that, the notice to admit is being used as a substitute for existing
discovery devices, which, as a matter of law isprohibited. See e.g.,Jet One Group, Inc. v Halcyon
Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the
plaintiff in the notice to admit may be obtained through document discovery"). Plaintiff further
objects to this Request on the grounds that no document is annexed to the notice to admit, and,
therefore, there is nothing for Plaintiff to authenticate. Accordingly, no response is required to
this Request, and Plaintiff expressly reserves the right to move for a protective order and/or to
move to strike the notice to admit.
R_equest No. 2
That there has never been a written assignmcñt of the September 7, 1977 lease.
Response
In addition to the General Objections set forth above, P½tiff objects to this Request, in that, it
seeks to compel the admissioñ of fundamental and material issues, or ultimate facts, that can only
be resolved at trialand/or otherwise seeks admissions on fundamcñtal and material issues, which
are in contention. Based upon the foregoing, no response is required to this Request. See e.g.,
Meadowbrook-Richtnan, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000) ("A notice to admit
pursuant to CPLR 3213(a) is to be used only for disposing of uncontroverted questions of fact or
those that are easily provable, not for the purpose of compelling admission of fundamental and
material issues or ultimate facts that can only be resolved after a full trial. Plaintiff's notice to
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admit improperly demanded that defendant concede matters that were in dispute. Thus.. defendant
had no obligation to furnish admissions in resoonse to olaintiff's notice") (emphasis supplied).
Reguest No. 3
That there has never been a written assumption of the obligations of D.V.K. Realty, Inc. under
September 7, 1977 lease.
Response
See Response to Request No. 2, supra.
Request No. 4
That the Septembct 7, 1977 lease in paragraph 2 allowed two options to extend the term of said
lease for two additional five year periods.
Response
In addition to, the General Objections set forth above, In addition to the General Objections set
forth above, Plaintiff objects to this Request to the extent that the Request seeks admissions and
discovery beyond the scope permitted by the CPLR and/or other applicable provisions of law.
Plaintiff further objects to this Request on the grounds that the Request seeks admissions and/or
information which is already in Defendant's possession, custody and/or control, and, moreover,
the document speaks for itself. Plaintiff further objects to this Request on the grounds that it is
beyond the scope of a proper notice to admit, in that,the notice to admitis beingused as a substitute
for existing discovery devices, which, as a matter of law is prohibited, as specifically, and without
limitation, Defendant can ask this question in a deposition. See e.g.,Jet One Group, Inc. v Halcyon
Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the
plaintiff in the notice to admit may be obtained through document discovery"). Accordingly, no
response is required to this Request and Plaintiff expressly reserves the right to move for a
protective order and/or to move to strike the notice to admit.
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Request No. 5
That the lease contained a provision in the event of subletting or assignment, Lessee, D.V.K.
Realty, Inc., shall at all times remain primarily liable for the performance of all of the terms and
conditions of the lease agreement.
Response
In addition to the General Objections stated above, Plaintiff objects to this Request to the extent
that it seeks admissions of fact, which are not relevant to the issues of law and fact in this action,
nor are they reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further
objects to this Request to the extent that the request isbeyond the scope of a proper notice to admit,
in that, "the purpose of a notice to admit, pursuant to CPLR 3213(a), is to eliminate from the
litigation factual matters which will not be in dispute, not obtain information in lieu of other
discovery devices. It isonly to be used for disposing of unconverted questions of fact or those that
provable."
are easily See e.g., TSFV Holdings, LLC v Mulberry Development, LLC, 59 Misc3d
1226(A) (Supreme Court New York County 2018). Plaintiff further objects to this Request to the
extent that the Request seeks admissions and discovery beyond the scope permitted by the CPLR
and/or other applicable provisions of law. Plaintiff further objects to this Request on the grounds
that the Request seeks admissions and/or information which is already in Defendant's possession,
custody and/or control, and, in con-nection therewith, the document speaks for itself. Plaintiff
further objects to this Request on the grounds that itis beyond the scope of a proper notice to
admit, in that, the notice to admit isbeing used as a substitute for existing discovery devices, which,
as a matter of law is prohibited, in that, inter alia, this question may be asked at a deposition. See
e.g., Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover,
the information sought the plaintiff in the notice to admit be obtained through document
by may
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discovery"). Accordingly, no response is required to this Request, and Plaintiff expressly reserves
the right to move for a protective order and/or to move to strike the notice to admit
Reauest No. 6
days'
That the lease provided that upon a default, the lease could be terminated upon twenty
property."
written notice and Lessor would be entitled to reenter, repossess and enjoy the
Response
See Response to Request No. 5, supra.
Request No. 7
That the lease provided that the lease would insure to the benefit of the heirs, administrators,
executors, successors and assigns of Lessor.
Response:
In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent
that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or
other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the
Request seeks admissions and/or information which is in Defendant's possession,
already custody
and/or control, and, moreover, the document, including itsterms, speaks for itself. Plaintiff further
objects to this Request on the grounds that it isbeyond the scope of a proper notice to admit, in
that, the notice to admit is being used as a substitute for existing discovery devices, which, as a
matter of law is prohibited, and specifically, Defendant may ask this question at a deposition. See
e.g., Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover,
the information sought by the plaintiff in the notice to admit may be obtained through document .
discovery"). Accordingly, no response is required to thisRequest, and Plaintiff expressly reserves
the right to move for a protective order and/or to move to strike the notice to admit.
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Reauest No. 8
That there was an ameñdment to lease dated December 19, 1987 between James Frontero and
D.V.K. Realty, Inc.
Response
See Response to Request No. 1, supra.
Request No. 9
That there was an ameraman-t to lease dated January 17, 1989 between James Frontero and D.V.K.
Inc."
Realty,
Response
See Response to Request No 1, supra.
Request No. 10
1st
That paragraph 2 of the second amendment stated that the lease would comacñce on the day
31st
of January 1978 and shall end on the day of December 2008. That Lessee shall have the option
to extend the term of this lease for five (5) additional periods of five years each.
Response
See Response to Request No. 7, supra.
Request No. 11
That there is a third purported amendment to lease dated February 28, 1989 between James
Frontero and D.V.K. Realty Inc., but said third amcñdment was not signed by James Frontero.
Response
In addition to, and without waiver of, the General Objections set forth above, Plaintiff denies this
Request.
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Reguest No. 12
That on May 17, 1989, D.V.K. Realty, Inc. exercised the first and second options for renewal
provided under a certain lease dated September 7, 1977 and exercised said option so the lease
dated September 7, 1977 as amended December 19, 1987, January 17, 1989 and February 28, 1989
would expire on December 31, 2018.
Response:
In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it
seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only
be resolved at trialand/or otherwise seeks admissions on fundamental and material issues, which
are in contention. See e.g.,Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000)
("A notice to admit pursuant to CPLR 3213(a) is to be used only for disposing of uncontroverted
questions of fact or those that are easily provable, not for the purpose of compelling admission of
fundamental and material issues or ultimate facts that can only be resolved after a full trial.
Plaintiff's notice to admit improperly demanded that defendant concede matters that were in
dispute. Thus, defendant had no oblication to furnish admissiom in response to plaintiff's notice")
(emphasis supplied). Plaintiff further objects to this Request on the grounds that it isbeyond the
scope of a proper notice to admit, in that, the notice to admit is being used as a substitute for
existing discovery devices, which, as a matter of law is prohibited, specifically, and without
limitation, this question may be sked at a deposition. See e.g.,Jet One Group, Inc. v Halcyon Jet
Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the plaintiff
in the notice to admit may be obtained through document discovery"). Accordingly, no response
is required to this Request, and Plaintiff expressly reserves the right to move for a protective order
and/or to move to strike the notice to admit.
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Request No. 13
That there is no documentary evidence that D.V.K. Realty, Inc. converted to the Plaintiff entity
as part of an overall corporate restructuring in 1997.
Response
In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it
seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only
be resolved at trialand/or otherwise seeks admissions on fundamental and material issues, which
are in contention. Based upon the foregoing, no response is required. See e.g., TSFV Holdings,
LLC V Mulberry Development, LLC, 59 Misc3d 1226(A) (Supreme Court New York County
2018); Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000). Subject to the
foregoing objection, in addition to the General Objections set forth above, Plaintiff denies this
Request.
Request No 14
That DVK Realty LLC is not a signatory on any of the following documents: (1) lease dated
September 7, 1977; (2) amendment to lease dated December 19, 1987, between James Frontero
and D.V.K. Realty, Inc.; (3) second amendment to lease dated January 17, 1989 between James
Frontero and D.V.K. Realty, Inc. or (4) third purported amendment to lease dated February 28,
Inc."
1989 between James Frontero and D.V.K, Realty,
Response
In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it
seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only
be resolved at trial and/or otherwise seeks admissions on fundamental and material issues, which
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are in contention. Based upon the foregoing, no response is required. See e.g., TSFV Holdings,
LLC V Mulberry Development, LLC, 59 Misc3d 1226(A) (Supreme Court New York County
2018); Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000); New Image
Construction, Inc. v TDR Enterprises Incorporated, 74 AD3d 680 (1st Dept 2010).
Request No. 15
That there is only written exercise of options to renew signed by D.V.K. Realty, Inc.
Response
See Response to Request No. 14, supra.
Request No. 16
That Plaintiff never presented Defendant with documents evidencing that Defendant and
Landlord's predecessor were fully aware of and consented to the conversion.
Response
See Response to Request No. 13, supra.
Request No. 17
That D.V.K. Realty, Inc. was dissolved on April 14, 1998.
Response
Subject to the General Objections stated above, Pl aintiff admits this Request, and further states,
without prejudice to the foregoing admission that (a)Plaintiff has presented documentary evidence
to Defendant regarding the dissolution of the entity, (b) Defendant has recognized Plaintiff as the
tenant and has sent notice and correspondence to Plaintiff and (c) since the dissolution of D.V.K.
Realty, Inc., Plaintiff has, as successor-in-interest, been, at allrelevant times, the tenant under the
subject lease with Defendant.
R_equest No. 18
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That the only asset of DVK Realty LLC is their claim to tenancy under (1) lease dated September
7, 1977; (2) amendment to lease dated December 19, 198 between James Frontero and D.V.K.
Realty, Inc.; (3) second amendment to lease dated January 17, 1989 between James Frontero and
D.V.K. Realty, Inc.; or (4) third purported amendment to lease dated February 28, 1989 between
James Frontero and D.V.K. Realty, Inc.
Response to Reauest No. 18
In addition to the General Objections stated above, Plaintiff objects to this Request to the extent
that it seeks admissions of fact, which are not relevant to the issues of law and fact in this action,
nor are they reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further
objects to this Request to the extent that the request is beyond the scope of a proper notice to admit,
in that, "the purpose of a notice to admit, pursuant to CPLR 3213(a), is to eliminate from the
litigation factual matters which will not be in dispute, not obtain information in lieu of other
discovery devices. Itis only to be used for disposing ofunconverted questions of fact or those that
provable."
are easily See e.g., TSFY Holdings, LLC v Mulberry Development, LLC, 59 Misc3d
1226(A) (Supsvum Court New York County 2018). Plaintiff further objects to this Request, in
that, it seeks to compel the admission of fundamental and material issues, or ultimate facts, that
can only be resolved at trialand/or otherwise seeks admissions on fundamental and material issues,
which are in contention. Based upon the foregoing, no response is required to this Request.
Dated: New York, New York RIVKIN RADLER LLP
January 7, 2021 Attorneys for Plaintiff
926 RXR Plaza
Uniondale, New York 11556
(516) 357-3000
By: Eattheat Relael /s/
Matthew Meisel, Esq.
TO: ALL APPEARING PARTIES VIA NYSCEF
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VERIFICATION PAGE
STATE OF NEW YORK )
) ss.:
cOUNTY OF NASSAU )
MATTHEW KING, being duly sworn, deposes and says:
1. I am a mañager of DVK Realty LLC. ("Plaintiff").
2. I have read the Verified Responses and Objections to the Notice to Admit, and
know the contents thereof, and the same is true to rny own knowledge, except as to those matters
therein stated to be alleged upon information and belief, and as to those matters I believe them to
be true. The source of my infonnation and belief is the books and records of Plaintiff.
MATTHEW G
Sworn t fore me this
78"
day ry, 2021
NOTARY PUBLIC
MICHAEL J. HELLER
Notary Stee
Public, of New York
No. 02HES004844
Qualifiedin Nassau
County
Coramission ExpiresNov. 23, 202.
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Preview
FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU DVK REALTY LLC, Index No.158676/19 Plaintiff, VERIFIED RESPONSES AND -against- OBJECTIONS TO DEFENDANT'S NOTICE TO ADMIT CREMB REALTY INC. Defendant. PLEASE TAKE NOTICE, that PlaintifE, DVK Realty LLC ("Plaintiff"), by and through their undersigned legal counsel, hereby objects and responds to Defendant's, Cremb Realty Inc. ("Defendmñ"), Notice to Admit, dated December 8, 2020 (the "Notice to Admit"), as follows: PLEASE TAKE FURTHER NOTICE, that the responses and objections contained herein are interposed without prejudice to, or waiver of, Plaintiff's right to vacate the Notice to Admit on the grounds that the Notice to Admit, whether in whole or in part, seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only be resolved after a full trial and/or seeks admissions on fundamental and material issues, which are in contention. Based upon the foregoing, the Notice to Admit is defective and/or improper, and Plaintiff expressly reserves any and allof itsrights and remedies based upon the defective and/or improper nature of the Notice to Admit. GENERAL OBJECTIONS L Plaintiff objects to the requests for admissions to the extent they seek admissions and discovery beyond the scope permitted by the New York Civil Practice Law & Rules ("CPLR"), including, without limitation, CPLR § 3123 and/or other applicable provisions of law. 2. Plaintiff objects to each and every request for an adrdssion to the extent that a matter requested to be admitted presents a genuine issue for trial. 1 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 3. Plaintiff objects to the requests for admissions to the extent they seek information protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, the joint defense or common interest privilege or any other applicable privilege or protection. Any information subject to any such privilege or immunity that is disclosed by Plaintiff shall not constitute or be deemed to constitute a waiver of such privilege or immunity. 4. Plaintiff objects to the request for admk¤ions to the extent they seek admissions as to matters that are not relevant to this action. Nothing contained in any response herein shall be deemed to be an admission, concession, or waiver by Plaintiff as to the relevance or materiality of any information. 5, Plaintiff object to the requests for admissions to the extent they seek to require Plaintiff to respond on behalf of any other person or entity. 6. Plaintiff objects to the requests for admissions to the extent they seek information that is publicly available, already in Defendant's possesion, custody, or control, or to which Defendant has equal or greater access through other sources. 7. Plaintiff object to the requests for admissions to the extent they seek the admission of fundamental and material issues or ultimate or conclusory facts. 8. Plaintiff objects to the requests for admissions to the extent that they seek the admission of fundamental and material issues, or ultimate facts,in contention and/or issues or facts that can only be resolved after a full trial, 9. Plaintiff objects to the requests for admissions to the extent that they contain questions that would require Plaintiff to concede material facts or issues, which are in contention or dispute. 10, Plaintiff objects to the requests for admissions, in that, the notice to admit is being 2 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 used as a substitute for existing discovery devices, which, as a matter of law is prohibited 11. Plaintiff objects to the requests for admissions, including the definitions therein, if any, on the grounds, and to the extent, that they are vague, ambiguous, unduly burdensome, and overly broad. 12. Plaintiffreserves their right to object to the admimibility of any and allitems which are the subject of the Notice to Admit. Plaintiff's responses herein shall not be construed as an admission that any such items are relevant, admissible, non-prejudicial or non-inflammatory. 13. Plaintiff objects to the requests for admissions to the extent they are improper as to fonn. 14. The foregoing general objections (collectively, the "General Objections") apply to and are incorporated into each specific response below, whether or not expressly incorporated by reference in such individual response. 15. Plaintiff reserves the right to amend, modify, withdraw and/or supplement their responses as allowed by law. 16. To the extent that any request set forth in the Notice to Admit is not specifically addressed herein, then Plaintiff denies such requests. RESPONSES AND OBJECTIONS TO NOTICES TO ADMIT Request No. 1 That on September 7, 1977 DVK Realty, Inc. entered into a lease agreement with James Frontero for the property and premises located on the east side of Pine Hollow Road, south of Locust Street, in Oyster Bay, County of Nassau, State of New York. Response In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent 3 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the Request seeks admissions and/or information which is already in Defendant's possession, custody and/or control. Plaintiff further objects to this Request on the grounds that it isbeyond the scope of a proper notice to admit, in that, the notice to admit is being used as a substitute for existing discovery devices, which, as a matter of law isprohibited. See e.g.,Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the plaintiff in the notice to admit may be obtained through document discovery"). Plaintiff further objects to this Request on the grounds that no document is annexed to the notice to admit, and, therefore, there is nothing for Plaintiff to authenticate. Accordingly, no response is required to this Request, and Plaintiff expressly reserves the right to move for a protective order and/or to move to strike the notice to admit. R_equest No. 2 That there has never been a written assignmcñt of the September 7, 1977 lease. Response In addition to the General Objections set forth above, P½tiff objects to this Request, in that, it seeks to compel the admissioñ of fundamental and material issues, or ultimate facts, that can only be resolved at trialand/or otherwise seeks admissions on fundamcñtal and material issues, which are in contention. Based upon the foregoing, no response is required to this Request. See e.g., Meadowbrook-Richtnan, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000) ("A notice to admit pursuant to CPLR 3213(a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial. Plaintiff's notice to 4 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 admit improperly demanded that defendant concede matters that were in dispute. Thus.. defendant had no obligation to furnish admissions in resoonse to olaintiff's notice") (emphasis supplied). Reguest No. 3 That there has never been a written assumption of the obligations of D.V.K. Realty, Inc. under September 7, 1977 lease. Response See Response to Request No. 2, supra. Request No. 4 That the Septembct 7, 1977 lease in paragraph 2 allowed two options to extend the term of said lease for two additional five year periods. Response In addition to, the General Objections set forth above, In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the Request seeks admissions and/or information which is already in Defendant's possession, custody and/or control, and, moreover, the document speaks for itself. Plaintiff further objects to this Request on the grounds that it is beyond the scope of a proper notice to admit, in that,the notice to admitis beingused as a substitute for existing discovery devices, which, as a matter of law is prohibited, as specifically, and without limitation, Defendant can ask this question in a deposition. See e.g.,Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the plaintiff in the notice to admit may be obtained through document discovery"). Accordingly, no response is required to this Request and Plaintiff expressly reserves the right to move for a protective order and/or to move to strike the notice to admit. 5 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 Request No. 5 That the lease contained a provision in the event of subletting or assignment, Lessee, D.V.K. Realty, Inc., shall at all times remain primarily liable for the performance of all of the terms and conditions of the lease agreement. Response In addition to the General Objections stated above, Plaintiff objects to this Request to the extent that it seeks admissions of fact, which are not relevant to the issues of law and fact in this action, nor are they reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request to the extent that the request isbeyond the scope of a proper notice to admit, in that, "the purpose of a notice to admit, pursuant to CPLR 3213(a), is to eliminate from the litigation factual matters which will not be in dispute, not obtain information in lieu of other discovery devices. It isonly to be used for disposing of unconverted questions of fact or those that provable." are easily See e.g., TSFV Holdings, LLC v Mulberry Development, LLC, 59 Misc3d 1226(A) (Supreme Court New York County 2018). Plaintiff further objects to this Request to the extent that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the Request seeks admissions and/or information which is already in Defendant's possession, custody and/or control, and, in con-nection therewith, the document speaks for itself. Plaintiff further objects to this Request on the grounds that itis beyond the scope of a proper notice to admit, in that, the notice to admit isbeing used as a substitute for existing discovery devices, which, as a matter of law is prohibited, in that, inter alia, this question may be asked at a deposition. See e.g., Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought the plaintiff in the notice to admit be obtained through document by may 6 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 discovery"). Accordingly, no response is required to this Request, and Plaintiff expressly reserves the right to move for a protective order and/or to move to strike the notice to admit Reauest No. 6 days' That the lease provided that upon a default, the lease could be terminated upon twenty property." written notice and Lessor would be entitled to reenter, repossess and enjoy the Response See Response to Request No. 5, supra. Request No. 7 That the lease provided that the lease would insure to the benefit of the heirs, administrators, executors, successors and assigns of Lessor. Response: In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent that the Request seeks admissions and discovery beyond the scope permitted by the CPLR and/or other applicable provisions of law. Plaintiff further objects to this Request on the grounds that the Request seeks admissions and/or information which is in Defendant's possession, already custody and/or control, and, moreover, the document, including itsterms, speaks for itself. Plaintiff further objects to this Request on the grounds that it isbeyond the scope of a proper notice to admit, in that, the notice to admit is being used as a substitute for existing discovery devices, which, as a matter of law is prohibited, and specifically, Defendant may ask this question at a deposition. See e.g., Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the plaintiff in the notice to admit may be obtained through document . discovery"). Accordingly, no response is required to thisRequest, and Plaintiff expressly reserves the right to move for a protective order and/or to move to strike the notice to admit. 7 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 Reauest No. 8 That there was an ameñdment to lease dated December 19, 1987 between James Frontero and D.V.K. Realty, Inc. Response See Response to Request No. 1, supra. Request No. 9 That there was an ameraman-t to lease dated January 17, 1989 between James Frontero and D.V.K. Inc." Realty, Response See Response to Request No 1, supra. Request No. 10 1st That paragraph 2 of the second amendment stated that the lease would comacñce on the day 31st of January 1978 and shall end on the day of December 2008. That Lessee shall have the option to extend the term of this lease for five (5) additional periods of five years each. Response See Response to Request No. 7, supra. Request No. 11 That there is a third purported amendment to lease dated February 28, 1989 between James Frontero and D.V.K. Realty Inc., but said third amcñdment was not signed by James Frontero. Response In addition to, and without waiver of, the General Objections set forth above, Plaintiff denies this Request. 8 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 Reguest No. 12 That on May 17, 1989, D.V.K. Realty, Inc. exercised the first and second options for renewal provided under a certain lease dated September 7, 1977 and exercised said option so the lease dated September 7, 1977 as amended December 19, 1987, January 17, 1989 and February 28, 1989 would expire on December 31, 2018. Response: In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only be resolved at trialand/or otherwise seeks admissions on fundamental and material issues, which are in contention. See e.g.,Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000) ("A notice to admit pursuant to CPLR 3213(a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial. Plaintiff's notice to admit improperly demanded that defendant concede matters that were in dispute. Thus, defendant had no oblication to furnish admissiom in response to plaintiff's notice") (emphasis supplied). Plaintiff further objects to this Request on the grounds that it isbeyond the scope of a proper notice to admit, in that, the notice to admit is being used as a substitute for existing discovery devices, which, as a matter of law is prohibited, specifically, and without limitation, this question may be sked at a deposition. See e.g.,Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 (2d Dept 2013) ("Moreover, the information sought by the plaintiff in the notice to admit may be obtained through document discovery"). Accordingly, no response is required to this Request, and Plaintiff expressly reserves the right to move for a protective order and/or to move to strike the notice to admit. 9 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 Request No. 13 That there is no documentary evidence that D.V.K. Realty, Inc. converted to the Plaintiff entity as part of an overall corporate restructuring in 1997. Response In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only be resolved at trialand/or otherwise seeks admissions on fundamental and material issues, which are in contention. Based upon the foregoing, no response is required. See e.g., TSFV Holdings, LLC V Mulberry Development, LLC, 59 Misc3d 1226(A) (Supreme Court New York County 2018); Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000). Subject to the foregoing objection, in addition to the General Objections set forth above, Plaintiff denies this Request. Request No 14 That DVK Realty LLC is not a signatory on any of the following documents: (1) lease dated September 7, 1977; (2) amendment to lease dated December 19, 1987, between James Frontero and D.V.K. Realty, Inc.; (3) second amendment to lease dated January 17, 1989 between James Frontero and D.V.K. Realty, Inc. or (4) third purported amendment to lease dated February 28, Inc." 1989 between James Frontero and D.V.K, Realty, Response In addition to the General Objections set forth above, Plaintiff objects to this Request, in that, it seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only be resolved at trial and/or otherwise seeks admissions on fundamental and material issues, which 10 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 are in contention. Based upon the foregoing, no response is required. See e.g., TSFV Holdings, LLC V Mulberry Development, LLC, 59 Misc3d 1226(A) (Supreme Court New York County 2018); Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 (1st Dept 2000); New Image Construction, Inc. v TDR Enterprises Incorporated, 74 AD3d 680 (1st Dept 2010). Request No. 15 That there is only written exercise of options to renew signed by D.V.K. Realty, Inc. Response See Response to Request No. 14, supra. Request No. 16 That Plaintiff never presented Defendant with documents evidencing that Defendant and Landlord's predecessor were fully aware of and consented to the conversion. Response See Response to Request No. 13, supra. Request No. 17 That D.V.K. Realty, Inc. was dissolved on April 14, 1998. Response Subject to the General Objections stated above, Pl aintiff admits this Request, and further states, without prejudice to the foregoing admission that (a)Plaintiff has presented documentary evidence to Defendant regarding the dissolution of the entity, (b) Defendant has recognized Plaintiff as the tenant and has sent notice and correspondence to Plaintiff and (c) since the dissolution of D.V.K. Realty, Inc., Plaintiff has, as successor-in-interest, been, at allrelevant times, the tenant under the subject lease with Defendant. R_equest No. 18 11 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 That the only asset of DVK Realty LLC is their claim to tenancy under (1) lease dated September 7, 1977; (2) amendment to lease dated December 19, 198 between James Frontero and D.V.K. Realty, Inc.; (3) second amendment to lease dated January 17, 1989 between James Frontero and D.V.K. Realty, Inc.; or (4) third purported amendment to lease dated February 28, 1989 between James Frontero and D.V.K. Realty, Inc. Response to Reauest No. 18 In addition to the General Objections stated above, Plaintiff objects to this Request to the extent that it seeks admissions of fact, which are not relevant to the issues of law and fact in this action, nor are they reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request to the extent that the request is beyond the scope of a proper notice to admit, in that, "the purpose of a notice to admit, pursuant to CPLR 3213(a), is to eliminate from the litigation factual matters which will not be in dispute, not obtain information in lieu of other discovery devices. Itis only to be used for disposing ofunconverted questions of fact or those that provable." are easily See e.g., TSFY Holdings, LLC v Mulberry Development, LLC, 59 Misc3d 1226(A) (Supsvum Court New York County 2018). Plaintiff further objects to this Request, in that, it seeks to compel the admission of fundamental and material issues, or ultimate facts, that can only be resolved at trialand/or otherwise seeks admissions on fundamental and material issues, which are in contention. Based upon the foregoing, no response is required to this Request. Dated: New York, New York RIVKIN RADLER LLP January 7, 2021 Attorneys for Plaintiff 926 RXR Plaza Uniondale, New York 11556 (516) 357-3000 By: Eattheat Relael /s/ Matthew Meisel, Esq. TO: ALL APPEARING PARTIES VIA NYSCEF 12 of 13 FILED: NASSAU COUNTY CLERK 01/07/2021 11:21 AM INDEX NO. 617063/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/07/2021 VERIFICATION PAGE STATE OF NEW YORK ) ) ss.: cOUNTY OF NASSAU ) MATTHEW KING, being duly sworn, deposes and says: 1. I am a mañager of DVK Realty LLC. ("Plaintiff"). 2. I have read the Verified Responses and Objections to the Notice to Admit, and know the contents thereof, and the same is true to rny own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. The source of my infonnation and belief is the books and records of Plaintiff. MATTHEW G Sworn t fore me this 78" day ry, 2021 NOTARY PUBLIC MICHAEL J. HELLER Notary Stee Public, of New York No. 02HES004844 Qualifiedin Nassau County Coramission ExpiresNov. 23, 202. 13 of 13