Preview
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
POLLACK, POLLACK, ISAAC & DE CICCO, LLP,
Index No.: 504862/2017
Plaintiff(s),
AFFIRMATION IN
-against-
SUPPORT
ARKADY FREKHTMAN ATTORNEY AT LAW PC
D/B/A FREKHTMAN & ASSOCIATES,
Defendant(s).
----------------------------------------------------------------------X
Alex Rybakov, an attorney at law, duly admitted to practice law before the Courts
of the State of New York, and associated with FREKHTMAN & ASSOCIATES,
attorneys for Defendant herein, affirms the following to be true under the penalties of
perjury.
1. Your affirmant, fully familiar with the facts and circumstances surrounding the
within issues, submits this affirmation in support for an Order:
a. pursuant to CPLR.§ 2221 granting renewal and re-argument of defendants’
motion dated March 7, 2019 for an Order pursuant to CPLR § 3126
precluding the defendants from introducing evidence at trial and from
demanding further discovery from the plaintiff;
b. pursuant to CPLR §5015, vacating this Honorable Court’s Order dated
June 4, 2019;
c. together with such other, further, and different relief as this Honorable
1 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
Court may deem just and proper.
2. As will be shown in detail below, Defendant has made a good faith effort to
comply with the Plaintiff’s numerous and repetitious requests for discovery and it is
respectfully submitted that this Honorable Court erred when issuing its March 7, 2019
Order.
3. Furthermore, Defendant has fully responded to all Plaintiff’s demands for
discovery and any additional information that is being sought by the Plaintiff in this action
is within the exclusive possession of the Plaintiff.
4. Defendant’s dilatory actions, if any, fall well-short of the applicable standards
warranting preclusion.
5. Lastly, as the Order issued June 4, 2019 lacks any specificity as to the documents
being sought and as Defendant has previously provided all relevant discovery within its
possession and control, the June 4, 2019 Order must be vacated.
RELEVANT FACTS
6. The within action was initially brought by the plaintiff, POLLACK, POLLACK,
ISAAC & DE CICCO, LLP, and involves a claim for payment made by the Plaintiff for
services alleged to have been performed.
PROCEDURAL HISTORY
7. As a result of the aforementioned dispute, the matter was commenced by the
purchase of index number 153949/2017 and filing of the annexed Summons and Verified
Complaint with the NEW YORK County Clerk on April 28, 2017. Issue was joined by the
service of an Answer with counter claims on or about December 20, 2017 by defendant,
2 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
ARKADY FREKHTMAN ATTORNEY AT LAW PC D/B/A FREKHTMAN &
ASSOCIATES. (Copies of said pleadings are annexed hereto as “Exhibit 1.”)
8. On July 31, 2018, the parties appeared before this Honorable Court for a
Preliminary Conference which resulted in an Order being issued that inter alia, called for
demands for discovery and inspection to be served by both parties on or before October
29, 2018 with items being produced or objected to by December 1, 2018. (A copy of said
Order is annexed hereto as “Exhibit 2.”)
9. On or around October 25, 2018, plaintiff, POLLACK, POLLACK, ISAAC & DE
CICCO, LLP, served discovery demands upon the defendant. On or around May 3, 2019,
Defendant served a response upon the plaintiff. (A copy of said demands and responses are
annexed hereto as “Exhibit 3.”)
10. On January 29, 2019, the parties appeared before this Honorable Court for a
Compliance Conference, which resulted in an So-Ordered Stipulation that the depositions
of all parties be completed by March 13, 2019, that Defendant was to respond to Plaintiff’s
discovery demands dated October 25, 2108 within 30 days, that the parties appear for
another compliance conference on April 16, 2019 and Note of Issue be filed by May 3,
2019. (A copy of said Order is annexed hereto as “Exhibit 4.”)
11. Prior to the April 16, 2019 conference, on or around March 7, 2019, the plaintiff
filed a motion to preclude the defendants from introducing evidence at trial and from
demanding further discovery from the plaintiff. On May 3, 2019, the Defendant served
opposition to plaintiff’s motion which included the much sought after discovery responses
by the Defendant to the plaintiff. (A copy of said Motion and opposition papers are
3 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
annexed hereto as “Exhibit 5.”)
12. On April 16, 2019, the parties appeared as ordered by this Honorable Court for a
Compliance Conference which resulted in a So-Ordered Stipulation to adjourn the status
conference to June 4, 2019, ordered depositions to be held on or before July 15, 2019, and
Note of Issue to be filed by 08/31/2019. (A copy of said Order is annexed hereto as
“Exhibit 6.”)
13. On June 4, 2019, the parties again appeared before this Honorable Court to argue
the motion dated March 7, 2019 and for a further status conference which resulted in
Plaintiff’s March 7, 2019 Motion being granted in accordance with the So-Ordered
Stipulation dated June 4, 2019. (A copy of said Order is annexed hereto as “Exhibit 7.”)
14. On or around June 5, 2019, the aforementioned June 4, 2019 Order was served
with Notice of Entry upon the clerk of New York County. (A copy of said Order with
Notice of Entry is annexed hereto as “Exhibit 8.”)
APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO REARGUE
15. CPLR § 2221(d) specifies that a motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion, but shall not
include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order
determining the prior motion and written notice of its entry.
4 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
16. On a motion to reargue, the movant must show that the Court "allegedly
overlooked or misapprehended" certain "matters of fact or law" considered on the prior
motion. CPLR § 2221(d)(2) Every court retains continuing jurisdiction to reconsider its
prior interlocutory orders during the pendency of the action” (Liss v. Trans Auto Sys., 68
N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986]; see also Kleinser v. Astarita,
61 A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ). Profita v Diaz, 100 AD3d 481
[1st Dept 2012].
17. The within Motion has been specifically identified as a motion to renew and
reargue pursuant to CPLR § 2221.
18. Defendant has filed the within Motion 15 (fifteen) days after service of a copy of
the order determining the prior motion and written notice of its entry, as such the within
Motion is timely.
Matters of fact or law allegedly overlooked or misapprehended by the Court in
determining the prior motion
19. It is respectfully submitted that this Honorable Court allegedly overlooked or
misapprehended certain matters of fact or law in its Order dated June 4, 2019.
20. Specifically, Defendant was in full compliance with Court Orders and has made
good faith attempts to resolve the ongoing discovery disputes. (see Defendant’s
responses to plaintiff’s discovery demands annexed hereto as part of “Exhibits 3 and
5.”)
21. More specifically, it was in fact the Plaintiff whom alleges to have provided
Defendant with “certain work, labor services & materials.” As such, the bulk of
documents and other materials would be in the exclusive possession of the Plaintiff.
(see paragraphs “fourth” and “fifth” of plaintiff’s Complaint which is annexed hereto as
5 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
part of “Exhibit 1.”)
22. Furthermore, the Defendant has exchanged all documents and things in its
possession and upon which it intends to rely on at trial.
23. Additionally, pursuant to 22 NYCRR 202.7 a party bringing a discovery motion
must include a good faith affirmation indicating the time, place, and nature of the
consultation and the issues discusses and any resolutions or indicate why such
consultations were not made.
24. The Defendant must draw this Honorable Court’s attention to the Good Faith
Affirmation annexed to plaintiff’s March 7, 2019 motion claiming that plaintiff has
attempted in good faith to resolve discovery disputes yet fails to note the time, place, and
nature of any such consultation, the issues discussed, any resolutions, nor indicate why
such consultations were not made.
25. The plaintiff, in its Good Faith Affirmation, simply recalls events that occurred
long before the January 29, 2019 Compliance Conference and fails to show any effort
whatsoever in trying to resolve the discovery dispute with the Defendant.
26. Inasmuch, the plaintiff has clearly failed to show that the Defendant has failed or
refused to comply with this Honorable Court’s Orders and/or that plaintiff has made a
good faith effort to resolve said disputes.
27. Therefore, as plaintiff’s Good Faith Affirmation is defective, its March 7, 2019
motion should have been denied as a matter of law. Furthermore, the Defendant was in full
compliance with plaintiff’s discovery demands and annexed them to its opposition papers
to the March 7, 2019 motion. Thus, this Honorable Court erred when issuing its June 4,
2019 decision and Defendant’s motion to reargue must be granted and a new Order be
6 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
issued.
APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO RENEW
28. CPLR § 2221(e) specifies that a motion to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would
change the prior determination or shall demonstrate that there has been a change
in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the
prior motion.
29. Here, the within Motion has been specifically identified as a Motion to Renew and
has been filed within 15 (fifteen) days after service of a copy of the Order determining
the prior Motion and written notice of its entry. As such, the within Motion is timely.
30. Defendant has presented new evidence in this motion by way of its exhibits
annexed hereto.
31. Therefore, as new facts have been presented that, if considered, would alter the
prior determination and Order of this Honorable Court, Defendant’s motion to renew must
be granted and this Honorable Court’s Order must be changed to reflect the new evidence
presented.
APPLICABLE STANDARD FOR A MOTION FOR RELIEF FROM
JUDGMENT OR ORDER
32. CPLR § 5015 specifies that in a motion for Relief from judgment or order:
The court which rendered a judgment or order may relieve a party from it
upon such terms as may be just, on motion of any interested person with
such notice as the court may direct, upon the ground of:
7 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
1. excusable default, if such motion is made within one year after
service of a copy of the judgment or order with written notice of its entry
upon the moving party, or, if the moving party has entered the judgment or
order, within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse party;
or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order upon
which it is based.
33. Here, the within Motion has been filed within 15 (fifteen) days after service of a
copy of the Order determining the prior Motion and written notice of its entry. As such,
the within Motion is timely.
53. Additionally, newly presented facts and arguments that were not introduced at the
June 4, 2019 motion appearance have been presented.
54. Further, the June 4, 2019 Order requiring the defendant to produce “the above
noted discovery” is impracticable, ambiguous, overly burdensome, and/or outside the
scope of the CPLR.
55. The June 4, 2019 Order refers to a stipulation for
Defendant to respond to plaintiff’s demand for interrogatories and
demand for documents with substantive responses within 30 days
including all documentation or other evidence that defendant intends to
rely upon for subsequent motions or at trial.
8 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
56. First, the aforementioned “substantive responses” is a subjective standard and
the Plaintiff should not have the authority to determine if defendant’s responses are
sufficient, this authority should remain with this Honorable Court and its interpretation
and application of the CPLR.
57. Second, Defendant has fully responded and produced all relevant discovery
within its possession.
58. Third, this Honorable Court has demanded that the defendant produce discovery
that does not exist, and thus interposed an unfair burden upon the Defendant.
59. Therefore, as Defendant has moved timely, and as newly presented evidence and
arguments clearly show that this Honorable Court’s Order dated June 4, 2019 was based
upon misleading and/or inaccurate information, and as plaintiff has failed to comply with
the New York Codes, Rules, and Regulations as they apply to motions, the June 4, 2019
Order must be vacated.
WHEREFORE, it is respectfully requested that an Order be issued: (1) pursuant
to CPLR.§ 2221 granting renewal and re-argument of defendants’ motion dated December
19, 2018 and filed with this Honorable Court on December 21, 2018 for an Order
dismissing Plaintiff’s Complaint due to Plaintiff’s alleged failure to comply with Court
Orders dated 10/18/17, 02/20/2018, and 03/20/2018 09/20/2018; (2) pursuant to CPLR
§5015, vacating this Honorable Court’s Order dated April 2, 2019; (3) restoring this matter
to active status; and (4) extending the time to file Note of Issue; together with such other,
further, and different relief as this Honorable Court may deem just and proper.
Dated: BROOKLYN, NEW YORK
June 20, 2019
9 of 10
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019
Yours, etc.
____________________
Alex Rybakov, Esq.
FREKHTMAN & ASSOCIATES
Attorneys for Defendant
60 Bay 26th Street
Brooklyn, New York 11214
(718) 331-7700
10 of 10
Preview
FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X POLLACK, POLLACK, ISAAC & DE CICCO, LLP, Index No.: 504862/2017 Plaintiff(s), AFFIRMATION IN -against- SUPPORT ARKADY FREKHTMAN ATTORNEY AT LAW PC D/B/A FREKHTMAN & ASSOCIATES, Defendant(s). ----------------------------------------------------------------------X Alex Rybakov, an attorney at law, duly admitted to practice law before the Courts of the State of New York, and associated with FREKHTMAN & ASSOCIATES, attorneys for Defendant herein, affirms the following to be true under the penalties of perjury. 1. Your affirmant, fully familiar with the facts and circumstances surrounding the within issues, submits this affirmation in support for an Order: a. pursuant to CPLR.§ 2221 granting renewal and re-argument of defendants’ motion dated March 7, 2019 for an Order pursuant to CPLR § 3126 precluding the defendants from introducing evidence at trial and from demanding further discovery from the plaintiff; b. pursuant to CPLR §5015, vacating this Honorable Court’s Order dated June 4, 2019; c. together with such other, further, and different relief as this Honorable 1 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 Court may deem just and proper. 2. As will be shown in detail below, Defendant has made a good faith effort to comply with the Plaintiff’s numerous and repetitious requests for discovery and it is respectfully submitted that this Honorable Court erred when issuing its March 7, 2019 Order. 3. Furthermore, Defendant has fully responded to all Plaintiff’s demands for discovery and any additional information that is being sought by the Plaintiff in this action is within the exclusive possession of the Plaintiff. 4. Defendant’s dilatory actions, if any, fall well-short of the applicable standards warranting preclusion. 5. Lastly, as the Order issued June 4, 2019 lacks any specificity as to the documents being sought and as Defendant has previously provided all relevant discovery within its possession and control, the June 4, 2019 Order must be vacated. RELEVANT FACTS 6. The within action was initially brought by the plaintiff, POLLACK, POLLACK, ISAAC & DE CICCO, LLP, and involves a claim for payment made by the Plaintiff for services alleged to have been performed. PROCEDURAL HISTORY 7. As a result of the aforementioned dispute, the matter was commenced by the purchase of index number 153949/2017 and filing of the annexed Summons and Verified Complaint with the NEW YORK County Clerk on April 28, 2017. Issue was joined by the service of an Answer with counter claims on or about December 20, 2017 by defendant, 2 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 ARKADY FREKHTMAN ATTORNEY AT LAW PC D/B/A FREKHTMAN & ASSOCIATES. (Copies of said pleadings are annexed hereto as “Exhibit 1.”) 8. On July 31, 2018, the parties appeared before this Honorable Court for a Preliminary Conference which resulted in an Order being issued that inter alia, called for demands for discovery and inspection to be served by both parties on or before October 29, 2018 with items being produced or objected to by December 1, 2018. (A copy of said Order is annexed hereto as “Exhibit 2.”) 9. On or around October 25, 2018, plaintiff, POLLACK, POLLACK, ISAAC & DE CICCO, LLP, served discovery demands upon the defendant. On or around May 3, 2019, Defendant served a response upon the plaintiff. (A copy of said demands and responses are annexed hereto as “Exhibit 3.”) 10. On January 29, 2019, the parties appeared before this Honorable Court for a Compliance Conference, which resulted in an So-Ordered Stipulation that the depositions of all parties be completed by March 13, 2019, that Defendant was to respond to Plaintiff’s discovery demands dated October 25, 2108 within 30 days, that the parties appear for another compliance conference on April 16, 2019 and Note of Issue be filed by May 3, 2019. (A copy of said Order is annexed hereto as “Exhibit 4.”) 11. Prior to the April 16, 2019 conference, on or around March 7, 2019, the plaintiff filed a motion to preclude the defendants from introducing evidence at trial and from demanding further discovery from the plaintiff. On May 3, 2019, the Defendant served opposition to plaintiff’s motion which included the much sought after discovery responses by the Defendant to the plaintiff. (A copy of said Motion and opposition papers are 3 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 annexed hereto as “Exhibit 5.”) 12. On April 16, 2019, the parties appeared as ordered by this Honorable Court for a Compliance Conference which resulted in a So-Ordered Stipulation to adjourn the status conference to June 4, 2019, ordered depositions to be held on or before July 15, 2019, and Note of Issue to be filed by 08/31/2019. (A copy of said Order is annexed hereto as “Exhibit 6.”) 13. On June 4, 2019, the parties again appeared before this Honorable Court to argue the motion dated March 7, 2019 and for a further status conference which resulted in Plaintiff’s March 7, 2019 Motion being granted in accordance with the So-Ordered Stipulation dated June 4, 2019. (A copy of said Order is annexed hereto as “Exhibit 7.”) 14. On or around June 5, 2019, the aforementioned June 4, 2019 Order was served with Notice of Entry upon the clerk of New York County. (A copy of said Order with Notice of Entry is annexed hereto as “Exhibit 8.”) APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO REARGUE 15. CPLR § 2221(d) specifies that a motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. 4 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 16. On a motion to reargue, the movant must show that the Court "allegedly overlooked or misapprehended" certain "matters of fact or law" considered on the prior motion. CPLR § 2221(d)(2) Every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” (Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986]; see also Kleinser v. Astarita, 61 A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ). Profita v Diaz, 100 AD3d 481 [1st Dept 2012]. 17. The within Motion has been specifically identified as a motion to renew and reargue pursuant to CPLR § 2221. 18. Defendant has filed the within Motion 15 (fifteen) days after service of a copy of the order determining the prior motion and written notice of its entry, as such the within Motion is timely. Matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion 19. It is respectfully submitted that this Honorable Court allegedly overlooked or misapprehended certain matters of fact or law in its Order dated June 4, 2019. 20. Specifically, Defendant was in full compliance with Court Orders and has made good faith attempts to resolve the ongoing discovery disputes. (see Defendant’s responses to plaintiff’s discovery demands annexed hereto as part of “Exhibits 3 and 5.”) 21. More specifically, it was in fact the Plaintiff whom alleges to have provided Defendant with “certain work, labor services & materials.” As such, the bulk of documents and other materials would be in the exclusive possession of the Plaintiff. (see paragraphs “fourth” and “fifth” of plaintiff’s Complaint which is annexed hereto as 5 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 part of “Exhibit 1.”) 22. Furthermore, the Defendant has exchanged all documents and things in its possession and upon which it intends to rely on at trial. 23. Additionally, pursuant to 22 NYCRR 202.7 a party bringing a discovery motion must include a good faith affirmation indicating the time, place, and nature of the consultation and the issues discusses and any resolutions or indicate why such consultations were not made. 24. The Defendant must draw this Honorable Court’s attention to the Good Faith Affirmation annexed to plaintiff’s March 7, 2019 motion claiming that plaintiff has attempted in good faith to resolve discovery disputes yet fails to note the time, place, and nature of any such consultation, the issues discussed, any resolutions, nor indicate why such consultations were not made. 25. The plaintiff, in its Good Faith Affirmation, simply recalls events that occurred long before the January 29, 2019 Compliance Conference and fails to show any effort whatsoever in trying to resolve the discovery dispute with the Defendant. 26. Inasmuch, the plaintiff has clearly failed to show that the Defendant has failed or refused to comply with this Honorable Court’s Orders and/or that plaintiff has made a good faith effort to resolve said disputes. 27. Therefore, as plaintiff’s Good Faith Affirmation is defective, its March 7, 2019 motion should have been denied as a matter of law. Furthermore, the Defendant was in full compliance with plaintiff’s discovery demands and annexed them to its opposition papers to the March 7, 2019 motion. Thus, this Honorable Court erred when issuing its June 4, 2019 decision and Defendant’s motion to reargue must be granted and a new Order be 6 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 issued. APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO RENEW 28. CPLR § 2221(e) specifies that a motion to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. 29. Here, the within Motion has been specifically identified as a Motion to Renew and has been filed within 15 (fifteen) days after service of a copy of the Order determining the prior Motion and written notice of its entry. As such, the within Motion is timely. 30. Defendant has presented new evidence in this motion by way of its exhibits annexed hereto. 31. Therefore, as new facts have been presented that, if considered, would alter the prior determination and Order of this Honorable Court, Defendant’s motion to renew must be granted and this Honorable Court’s Order must be changed to reflect the new evidence presented. APPLICABLE STANDARD FOR A MOTION FOR RELIEF FROM JUDGMENT OR ORDER 32. CPLR § 5015 specifies that in a motion for Relief from judgment or order: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 7 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based. 33. Here, the within Motion has been filed within 15 (fifteen) days after service of a copy of the Order determining the prior Motion and written notice of its entry. As such, the within Motion is timely. 53. Additionally, newly presented facts and arguments that were not introduced at the June 4, 2019 motion appearance have been presented. 54. Further, the June 4, 2019 Order requiring the defendant to produce “the above noted discovery” is impracticable, ambiguous, overly burdensome, and/or outside the scope of the CPLR. 55. The June 4, 2019 Order refers to a stipulation for Defendant to respond to plaintiff’s demand for interrogatories and demand for documents with substantive responses within 30 days including all documentation or other evidence that defendant intends to rely upon for subsequent motions or at trial. 8 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 56. First, the aforementioned “substantive responses” is a subjective standard and the Plaintiff should not have the authority to determine if defendant’s responses are sufficient, this authority should remain with this Honorable Court and its interpretation and application of the CPLR. 57. Second, Defendant has fully responded and produced all relevant discovery within its possession. 58. Third, this Honorable Court has demanded that the defendant produce discovery that does not exist, and thus interposed an unfair burden upon the Defendant. 59. Therefore, as Defendant has moved timely, and as newly presented evidence and arguments clearly show that this Honorable Court’s Order dated June 4, 2019 was based upon misleading and/or inaccurate information, and as plaintiff has failed to comply with the New York Codes, Rules, and Regulations as they apply to motions, the June 4, 2019 Order must be vacated. WHEREFORE, it is respectfully requested that an Order be issued: (1) pursuant to CPLR.§ 2221 granting renewal and re-argument of defendants’ motion dated December 19, 2018 and filed with this Honorable Court on December 21, 2018 for an Order dismissing Plaintiff’s Complaint due to Plaintiff’s alleged failure to comply with Court Orders dated 10/18/17, 02/20/2018, and 03/20/2018 09/20/2018; (2) pursuant to CPLR §5015, vacating this Honorable Court’s Order dated April 2, 2019; (3) restoring this matter to active status; and (4) extending the time to file Note of Issue; together with such other, further, and different relief as this Honorable Court may deem just and proper. Dated: BROOKLYN, NEW YORK June 20, 2019 9 of 10 FILED: NEW YORK COUNTY CLERK 06/25/2019 12:10 PM INDEX NO. 153949/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/25/2019 Yours, etc. ____________________ Alex Rybakov, Esq. FREKHTMAN & ASSOCIATES Attorneys for Defendant 60 Bay 26th Street Brooklyn, New York 11214 (718) 331-7700 10 of 10