Preview
FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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PAMELA GOLDSTEIN,
ELLYN & TONY BERK, AFFIDAVIT IN SUPPORT
and PAUL BENJAMIN, on behalf of themselves
and allothers similarly situated, Index No. 60767/2018
Plaintiffs, Hon. Linda S. Jamieson
-against-
HOULIHAN/LAWRENCE INC.,
Defendant.
-- -------------------------------------------------X
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
PHILIP M. HALPERN, being duly sworn, deposes and says:
1. I am a member of the finn of Collier Halpern & Newberg, LLP, attorneys for
defendant Houlihan/Lawrence Inc. ("Defendant"), am fully familiar with all of the facts and
circumstances set forth herein and submit this affidavit in support of Defendant's motion for an
Order pursuant to CPLR §§ 3211(a)(1), (a)(3), and (a)(7) dismissing with prejudice the first
plaintiffs'
through fourth causes of action alleged in Amended Complaint dated October 1, 2018
(the "Complaint") upon the grounds that there exists documentary evidence which flatly
contradicts the causes of action alleged in the Complaint, that plaintiffs Dr. Ellyn Berk and Tony
Berk may not pursue their requested relief by filing suit in their individual capacities, and that
the Complaint fails to state any cause of action upon which relief may be granted, together with
such other, further and different relief that this Court may deem just and proper in the
circumstances and the costs and disbursements of this motion.
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FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018
2. On or about July 14, 2018, plaintiff Pamela Goldstein commenced the instant
Complaint."
action by filing a Summons and Complaint, titled "Class Action
3. On or about October 1, 2018, plaintiffs Pamela Goldstein, Ellyn and Tony Berk
Complaint,"
and Paul Benjamin filed a "First Amended Class Action a copy of which (without
exhibits) is annexed hereto and marked as Exhibit A.
4. At the court conference held on September 20, 2018, the parties agreed to a
briefing schedule for the instant motion and on or about September 28, 2018 a stipulation
concerning that briefing schedule was filed by counsel for plaintiffs via NYSCEF. A copy of the
stipulation is annexed hereto and marked as Exhibit B.
WHEREFORE, your deponent respectfully requests that this Court grant Defendant's
instant motion to dismiss the Complaint in its entirety, together with such other, further and
different relief as this Court may deem just and proper in the circumstances and the costs and
disbursements of this motion.
Philip M. Halpern
Sworn to before me this
day of October, 2018
ARY P LIC O
SHARI BETH HOCHBERG
Notary Public,State of New York
No. 02HO6339555
Qualifiedin Queens County
Commission Expires April4, 20
2
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FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018
Certificate of Counsel
Pursuant to Rule 17 of the Commercial Division Rules
I, Philip M. Halpern, counsel for Defendant who is filing the within document, hereby
certify, pursuant to Rule 17 of the Commercial Division Rules, that the word count for the
foregoing document, excluding the caption, table of contents, table of authorities, and signature
block, is H l words. This document therefore complies with the rule, which limits briefs,
memoranda, affirmations, and affidavits to 7,000 words. I certify that this is the word count
Microsoft Word 2010 generated for this document.
Dated: White Plains, New York
October 30, 2018
COLLIER HALPERN & NEWBERG, LLP
By:
Philip M. Halpern
A Member of the Firm
One North Lexington Avenue
White Plains, New York 10601
(914) 684-6800
Attorneys for Defendant
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Preview
FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --------------------------------------------------------------------X PAMELA GOLDSTEIN, ELLYN & TONY BERK, AFFIDAVIT IN SUPPORT and PAUL BENJAMIN, on behalf of themselves and allothers similarly situated, Index No. 60767/2018 Plaintiffs, Hon. Linda S. Jamieson -against- HOULIHAN/LAWRENCE INC., Defendant. -- -------------------------------------------------X STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) PHILIP M. HALPERN, being duly sworn, deposes and says: 1. I am a member of the finn of Collier Halpern & Newberg, LLP, attorneys for defendant Houlihan/Lawrence Inc. ("Defendant"), am fully familiar with all of the facts and circumstances set forth herein and submit this affidavit in support of Defendant's motion for an Order pursuant to CPLR §§ 3211(a)(1), (a)(3), and (a)(7) dismissing with prejudice the first plaintiffs' through fourth causes of action alleged in Amended Complaint dated October 1, 2018 (the "Complaint") upon the grounds that there exists documentary evidence which flatly contradicts the causes of action alleged in the Complaint, that plaintiffs Dr. Ellyn Berk and Tony Berk may not pursue their requested relief by filing suit in their individual capacities, and that the Complaint fails to state any cause of action upon which relief may be granted, together with such other, further and different relief that this Court may deem just and proper in the circumstances and the costs and disbursements of this motion. 1 of 3 FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018 2. On or about July 14, 2018, plaintiff Pamela Goldstein commenced the instant Complaint." action by filing a Summons and Complaint, titled "Class Action 3. On or about October 1, 2018, plaintiffs Pamela Goldstein, Ellyn and Tony Berk Complaint," and Paul Benjamin filed a "First Amended Class Action a copy of which (without exhibits) is annexed hereto and marked as Exhibit A. 4. At the court conference held on September 20, 2018, the parties agreed to a briefing schedule for the instant motion and on or about September 28, 2018 a stipulation concerning that briefing schedule was filed by counsel for plaintiffs via NYSCEF. A copy of the stipulation is annexed hereto and marked as Exhibit B. WHEREFORE, your deponent respectfully requests that this Court grant Defendant's instant motion to dismiss the Complaint in its entirety, together with such other, further and different relief as this Court may deem just and proper in the circumstances and the costs and disbursements of this motion. Philip M. Halpern Sworn to before me this day of October, 2018 ARY P LIC O SHARI BETH HOCHBERG Notary Public,State of New York No. 02HO6339555 Qualifiedin Queens County Commission Expires April4, 20 2 2 of 3 FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 10/30/2018 Certificate of Counsel Pursuant to Rule 17 of the Commercial Division Rules I, Philip M. Halpern, counsel for Defendant who is filing the within document, hereby certify, pursuant to Rule 17 of the Commercial Division Rules, that the word count for the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, is H l words. This document therefore complies with the rule, which limits briefs, memoranda, affirmations, and affidavits to 7,000 words. I certify that this is the word count Microsoft Word 2010 generated for this document. Dated: White Plains, New York October 30, 2018 COLLIER HALPERN & NEWBERG, LLP By: Philip M. Halpern A Member of the Firm One North Lexington Avenue White Plains, New York 10601 (914) 684-6800 Attorneys for Defendant 3 of 3