Preview
FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021
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 Plaintiff, DVK Realty LLC (“Plaintiff”), by and through
their undersigned legal counsel, hereby objects and responds to Defendant’s, Cremb Realty Inc.
(“Defendant”), Notice to Admit, dated January 14, 2021 (the “Notice to Admit”), as follows:
GENERAL OBJECTIONS
1. 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 admission to the extent that a
matter requested to be admitted presents a genuine issue for trial.
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 admissions 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
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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 possession, 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
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. Plaintiff reserves their right to object to the admissibility of any and all items 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
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form.
14. Plaintiff objects to the requests for admissions to the extent that they are duplicative
of the requests for admissions set forth in Defendant’s first Notice to Admit, dated December 8,
2020 (the “First Notice to Admit”).
15. 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.
16. Plaintiff reserves the right to amend, modify, withdraw and/or supplement their
responses as allowed by law.
17. 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. Said Lease is annexed hereto as Exhibit A.
Response
In addition to the General Objections set forth above, Plaintiff 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 to the extent that the
Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no response
is required to this Request. To the extent that a response is required, Plaintiff admits that DVK
Realty, Inc. entered into a lease agreement with James Frontero.
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Request No. 2
That Plaintiff does not possess a document that that is a written assignment of the September 7,
1977 lease.
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
are in contention. Plaintiff further objects to this Request to the extent that it is duplicative of
requests sought in the First Notice to Admit. Based upon the foregoing, no response is required to
this Request. To the extent that a response is required, Plaintiff denies this Request.
Request No. 3
That Plaintiff does not possess 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 there was an amendment to lease dated December 19, 1987 between James Frontero and
D.V.K. Realty, Inc. (annexed as Exhibit B).
Response
In addition to the General Objections set forth above, Plaintiff 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 to the extent that the
Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no
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response is required to this Request. To the extent that a response is required, Plaintiff admits
that James Frontero and D.V.K. Realty, Inc. entered into an amendment of lease.
Request No. 5
That there was a second amendment to lease dated January 17, 1989 between James Frontero and
D.V.K. Realty, Inc. (annexed hereto as Exhibit C).
Response
In addition to the General Objections set forth above, Plaintiff 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 to the extent that the
Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no
response is required to this Request. To the extent that a response is required, Plaintiff admits
that James Frontero and D.V.K. Realty, Inc. entered into a second amendment of lease.
Request No. 6
That there is a third purported amendment to lease dated February 28, 1989 between James
Frontero and D.V.K. Realty, Inc., but said amendment was not signed by James Frontero
(annexed as Exhibit D).
Response
In addition to the General Objections set forth above, Plaintiff 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 to the extent that the
Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no
response is required to this Request. To the extent that a response is required, Plaintiff admits
that James Frontero and D.V.K. Realty, Inc. entered into a third amendment of lease, but denies
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that such third amendment of lease was not executed by James Frontero.
Request No. 7
That on or about May 17, 1989 D.V.K. Realty, Inc. executed the document which is annexed
hereto as Exhibit E.
Response:
In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent
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 the Request
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
are in contention. 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 admit is being used as a substitute for existing
discovery devices. Plaintiff further objects to this Request on the grounds that this Request is
duplicative of Request sought in the First Notice to Admit. Accordingly, no response is required
to this Request. To the extent that a response is required, Plaintiff admits that D.V.K. Realty, Inc.
executed the document annexed hereto as Exhibit “E”.
Request No. 8
That Plaintiff’s do not possess 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 trial and/or otherwise seeks admissions on fundamental and material issues, which
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are in contention. Plaintiff further objects to this Request on the grounds that it is duplicative of
requests contained in the First Notice to Admit. Based upon the foregoing, no response is required.
Subject to the foregoing objections, in addition to the General Objections set forth above, Plaintiff
denies this Request.
Request No. 9
That D.V.K. Realty, Inc. was dissolved on April 14, 1988 (see annexed Exhibit F).
Response
Subject to the General Objections stated above, Plaintiff 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 notices and correspondence to Plaintiff and (c) since the
dissolution of D.V.K. Realty, Inc., Plaintiff has, as successor-in-interest, been, at all relevant times,
the tenant under the subject lease with Defendant.
Dated: New York, New York RIVKIN RADLER LLP
January 28, 2021 Attorneys for Plaintiff
926 RXR Plaza
Uniondale, New York 11556
(516) 357-3000
By: Matthew Meisel /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 manager of DVK Realty LLC. ("Plaintiff').
2. I have read the Verified Respuñses and Objections to the Notice to Admit, and
know the contents thereof, and the same is true to my 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 information and belief is the books and records of Plaintiff.
Sw t before me this
1_ ay o 2021
NOTARY\PUBLIC
. .
MICHAEd.J HELLER
NotaryPublic,Stue of New York
No. 02EIE5004844
Qualifiedin NassauCounty
Coramission ExpiresNov. 23,20.22
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Preview
FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 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 Plaintiff, DVK Realty LLC (“Plaintiff”), by and through their undersigned legal counsel, hereby objects and responds to Defendant’s, Cremb Realty Inc. (“Defendant”), Notice to Admit, dated January 14, 2021 (the “Notice to Admit”), as follows: GENERAL OBJECTIONS 1. 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 admission to the extent that a matter requested to be admitted presents a genuine issue for trial. 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 admissions 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 1 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 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 possession, 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 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. Plaintiff reserves their right to object to the admissibility of any and all items 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 2 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 form. 14. Plaintiff objects to the requests for admissions to the extent that they are duplicative of the requests for admissions set forth in Defendant’s first Notice to Admit, dated December 8, 2020 (the “First Notice to Admit”). 15. 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. 16. Plaintiff reserves the right to amend, modify, withdraw and/or supplement their responses as allowed by law. 17. 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. Said Lease is annexed hereto as Exhibit A. Response In addition to the General Objections set forth above, Plaintiff 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 to the extent that the Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no response is required to this Request. To the extent that a response is required, Plaintiff admits that DVK Realty, Inc. entered into a lease agreement with James Frontero. 3 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 Request No. 2 That Plaintiff does not possess a document that that is a written assignment of the September 7, 1977 lease. 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 are in contention. Plaintiff further objects to this Request to the extent that it is duplicative of requests sought in the First Notice to Admit. Based upon the foregoing, no response is required to this Request. To the extent that a response is required, Plaintiff denies this Request. Request No. 3 That Plaintiff does not possess 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 there was an amendment to lease dated December 19, 1987 between James Frontero and D.V.K. Realty, Inc. (annexed as Exhibit B). Response In addition to the General Objections set forth above, Plaintiff 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 to the extent that the Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no 4 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 response is required to this Request. To the extent that a response is required, Plaintiff admits that James Frontero and D.V.K. Realty, Inc. entered into an amendment of lease. Request No. 5 That there was a second amendment to lease dated January 17, 1989 between James Frontero and D.V.K. Realty, Inc. (annexed hereto as Exhibit C). Response In addition to the General Objections set forth above, Plaintiff 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 to the extent that the Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no response is required to this Request. To the extent that a response is required, Plaintiff admits that James Frontero and D.V.K. Realty, Inc. entered into a second amendment of lease. Request No. 6 That there is a third purported amendment to lease dated February 28, 1989 between James Frontero and D.V.K. Realty, Inc., but said amendment was not signed by James Frontero (annexed as Exhibit D). Response In addition to the General Objections set forth above, Plaintiff 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 to the extent that the Request is duplicative of requests contained in the First Notice to Admit. Accordingly, no response is required to this Request. To the extent that a response is required, Plaintiff admits that James Frontero and D.V.K. Realty, Inc. entered into a third amendment of lease, but denies 5 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 that such third amendment of lease was not executed by James Frontero. Request No. 7 That on or about May 17, 1989 D.V.K. Realty, Inc. executed the document which is annexed hereto as Exhibit E. Response: In addition to the General Objections set forth above, Plaintiff objects to this Request to the extent 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 the Request 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 are in contention. 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 admit is being used as a substitute for existing discovery devices. Plaintiff further objects to this Request on the grounds that this Request is duplicative of Request sought in the First Notice to Admit. Accordingly, no response is required to this Request. To the extent that a response is required, Plaintiff admits that D.V.K. Realty, Inc. executed the document annexed hereto as Exhibit “E”. Request No. 8 That Plaintiff’s do not possess 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 trial and/or otherwise seeks admissions on fundamental and material issues, which 6 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 are in contention. Plaintiff further objects to this Request on the grounds that it is duplicative of requests contained in the First Notice to Admit. Based upon the foregoing, no response is required. Subject to the foregoing objections, in addition to the General Objections set forth above, Plaintiff denies this Request. Request No. 9 That D.V.K. Realty, Inc. was dissolved on April 14, 1988 (see annexed Exhibit F). Response Subject to the General Objections stated above, Plaintiff 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 notices and correspondence to Plaintiff and (c) since the dissolution of D.V.K. Realty, Inc., Plaintiff has, as successor-in-interest, been, at all relevant times, the tenant under the subject lease with Defendant. Dated: New York, New York RIVKIN RADLER LLP January 28, 2021 Attorneys for Plaintiff 926 RXR Plaza Uniondale, New York 11556 (516) 357-3000 By: Matthew Meisel /s/ Matthew Meisel, Esq. TO: ALL APPEARING PARTIES VIA NYSCEF 7 of 8 FILED: NASSAU COUNTY CLERK 02/02/2021 07:23 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/02/2021 VERIFICATION PAGE STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) MATTHEW KING, being duly sworn, deposes and says: 1. I am a manager of DVK Realty LLC. ("Plaintiff'). 2. I have read the Verified Respuñses and Objections to the Notice to Admit, and know the contents thereof, and the same is true to my 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 information and belief is the books and records of Plaintiff. Sw t before me this 1_ ay o 2021 NOTARY\PUBLIC . . MICHAEd.J HELLER NotaryPublic,Stue of New York No. 02EIE5004844 Qualifiedin NassauCounty Coramission ExpiresNov. 23,20.22 8 of 8