Preview
FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023
Exhibit J
FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023
Writer’s Direct Dial: (516) 663-6612
Writer’s Direct Fax: (516) 663-6812
Writer’s E-Mail: esy@rmfpc.com
February 9, 2023
By Email (DRoss@kasowitz.com)
David E. Ross
Kasowitz Benson Torres LLP
1633 Broadway
New York, New York 10019
Re: xxxxxx v. xxxxx et al., Index No. 607197/2022
Dear Mr. Ross,
We represent plaintiff xxxxxx xxxxxx (“Plaintiff”) in connection with the above-referenced
action. This letter serves as a good faith attempt to resolve discovery issues concerning the
subpoenas duces tecum served upon xxxxx xxxxxx, Farideh xxxxxx, Shervin xxxxxx, Henry
Kampfer, Fariburz Kohan, and Feraydoon Kohan (the “Subpoenas”)1.
First, the Subpoenas are palpably improper because they do not seek the disclosure of
specific documents. Instead, the Subpoenas request “all” documents and communications without
providing the specificity required by CPLR § 3120. Defendants cannot use the Subpoenas to
conduct a fishing expedition. See Haroian v. Nusbaum, 84 A.D.2d 532 (2d Dep’t 1981) (holding
that attempts to designate documents by use of the alternate phrases, “All”, “All other”, “Any and
all”, renders a request or notice for production under CPLR 3120 palpably improper); Capacity
Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1483 (2d Dep’t 2020) (“A subpoena duces tecum
may not be used for the purpose of general discovery or to ascertain the existence of evidence”);
Fascaldi v. Fascaldi, 209 A.D.2d 579 (2d Dep’t 1994) (“Here, the plaintiff clearly lacks
knowledge of the existence of specific documents and is improperly utilizing CPLR 3120 to
conduct a fishing expedition). For example, each of the demands in the Subpoenas request, “All
documents and communications” concerning broad topics, such as xxxxxxx xxxxx, xxxx xxxxx,
Jordan xxxxx, the Property, Rockville, and 172 Bargain Liquors. To add, the Subpoenas are overly
broad in that they span a 28-year time frame from January 1, 1995 to the present. See Fascaldi,
209 A.D.2d at 578 (noting that notices for discovery and inspection are overbroad for seeking
“production of all documents pertaining to financial and business transactions of defendants for
minimum of 14-year period”).
Second, the Subpoenas seek utterly irrelevant disclosure that has no relevance to the
1
Notably, our firm separately represents non-party xxxxx xxxxxx (“xxxxx”) in connection with the Subpoena issued to
him for the sole and exclusive purpose of addressing and responding to same.
RUSKIN MOSCOU FALTISCHEK
1 425 R X R P laz a, U nio nda le, N Y 115 56 -1 425 ▼
516. 663. 6600 ▼
2 12. 6 88. 8 300 ▼
F 5 16. 6 63. 66 01 ▼
w w w . r mf pc . c o m
FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023
allegations in this action, such as “All documents and communications” concerning Plaintiff’s
“businesses, finances, property, assets, and liabilities”. See Hudson City Sav. Bank v. 59 Sands
Point, LLC, 153 A.D.3d 611, 613 (2d Dep’t 2017) (holding that defendants met their initial burden
on a motion to quash by establishing that the subpoenas sought utterly irrelevant disclosure). The
Court of Appeals has long held that “[t]he words ‘material and necessary,’ are… to be interpreted
liberally to require disclosure, upon request, of any facts bearing on the controversy which will
assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v.
Crowell-Collier Publ’g. Co., 21 N.Y.2d 403, 406 (1968); see also Forman v. Henkin, 30 N.Y.3d
656, 661 (2018). However, this does not entitle a litigant to “unlimited, uncontrolled, unfettered
disclosure.” Geffner v. Mercy Med. Ctr., 83 A.D.3d 998 (2d Dep’t 2011) (affirming the trial court’s
denial of plaintiff’s motion to compel where many of plaintiff’s demands were overly broad and
unreasonable and sought irrelevant material). This action does not involve all of Plaintiff’s
businesses, finances, property, assets and liabilities. It involves issues relating to his ownership
interest in Rockville Corp. and the Property.
Third, as explained in our February 1, 2023 letter, requests concerning 172 Bargain Liquors
Inc. seemingly arise from defendants’ second (breach of contract) and third (unjust enrichment)
counterclaims, which are legally defective on several grounds including that each claim is time-
barred. As you are aware, both claims are based on allegations that xxxx xxxxx and Plaintiff
entered into purported verbal “profit-share” agreement with respect to 172 Bargain Liquors Inc.
which Plaintiff is alleged to have breached in 2013. See Counterclaims ¶¶ 92, 99; CPLR § 213(1)-
(2). Based on the foregoing, there is no reason for defendants to seek disclosure of documents
regarding time-barred claims that are otherwise facially defective and meritless.
Based on the foregoing, we hereby request that defendants/counterclaim plaintiffs agree,
by no later than Monday, February 13th to withdraw the foregoing Subpoenas by advising the
undersigned, and the non-parties to whom the Subpoenas were issued, of said withdrawal in
writing.
Plaintiff and xxxxx expressly reserve all of their rights, claims, remedies and defenses under
applicable law.
Very truly yours,
/s/ Elizabeth S. Sy
Elizabeth S Sy
For the Firm
993896
RUSKIN MOSCOU FALTISCHEK
Preview
FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023 Exhibit J FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023 Writer’s Direct Dial: (516) 663-6612 Writer’s Direct Fax: (516) 663-6812 Writer’s E-Mail: esy@rmfpc.com February 9, 2023 By Email (DRoss@kasowitz.com) David E. Ross Kasowitz Benson Torres LLP 1633 Broadway New York, New York 10019 Re: xxxxxx v. xxxxx et al., Index No. 607197/2022 Dear Mr. Ross, We represent plaintiff xxxxxx xxxxxx (“Plaintiff”) in connection with the above-referenced action. This letter serves as a good faith attempt to resolve discovery issues concerning the subpoenas duces tecum served upon xxxxx xxxxxx, Farideh xxxxxx, Shervin xxxxxx, Henry Kampfer, Fariburz Kohan, and Feraydoon Kohan (the “Subpoenas”)1. First, the Subpoenas are palpably improper because they do not seek the disclosure of specific documents. Instead, the Subpoenas request “all” documents and communications without providing the specificity required by CPLR § 3120. Defendants cannot use the Subpoenas to conduct a fishing expedition. See Haroian v. Nusbaum, 84 A.D.2d 532 (2d Dep’t 1981) (holding that attempts to designate documents by use of the alternate phrases, “All”, “All other”, “Any and all”, renders a request or notice for production under CPLR 3120 palpably improper); Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1483 (2d Dep’t 2020) (“A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence”); Fascaldi v. Fascaldi, 209 A.D.2d 579 (2d Dep’t 1994) (“Here, the plaintiff clearly lacks knowledge of the existence of specific documents and is improperly utilizing CPLR 3120 to conduct a fishing expedition). For example, each of the demands in the Subpoenas request, “All documents and communications” concerning broad topics, such as xxxxxxx xxxxx, xxxx xxxxx, Jordan xxxxx, the Property, Rockville, and 172 Bargain Liquors. To add, the Subpoenas are overly broad in that they span a 28-year time frame from January 1, 1995 to the present. See Fascaldi, 209 A.D.2d at 578 (noting that notices for discovery and inspection are overbroad for seeking “production of all documents pertaining to financial and business transactions of defendants for minimum of 14-year period”). Second, the Subpoenas seek utterly irrelevant disclosure that has no relevance to the 1 Notably, our firm separately represents non-party xxxxx xxxxxx (“xxxxx”) in connection with the Subpoena issued to him for the sole and exclusive purpose of addressing and responding to same. RUSKIN MOSCOU FALTISCHEK 1 425 R X R P laz a, U nio nda le, N Y 115 56 -1 425 ▼ 516. 663. 6600 ▼ 2 12. 6 88. 8 300 ▼ F 5 16. 6 63. 66 01 ▼ w w w . r mf pc . c o m FILED: NASSAU COUNTY CLERK 02/13/2023 05:22 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 02/13/2023 allegations in this action, such as “All documents and communications” concerning Plaintiff’s “businesses, finances, property, assets, and liabilities”. See Hudson City Sav. Bank v. 59 Sands Point, LLC, 153 A.D.3d 611, 613 (2d Dep’t 2017) (holding that defendants met their initial burden on a motion to quash by establishing that the subpoenas sought utterly irrelevant disclosure). The Court of Appeals has long held that “[t]he words ‘material and necessary,’ are… to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publ’g. Co., 21 N.Y.2d 403, 406 (1968); see also Forman v. Henkin, 30 N.Y.3d 656, 661 (2018). However, this does not entitle a litigant to “unlimited, uncontrolled, unfettered disclosure.” Geffner v. Mercy Med. Ctr., 83 A.D.3d 998 (2d Dep’t 2011) (affirming the trial court’s denial of plaintiff’s motion to compel where many of plaintiff’s demands were overly broad and unreasonable and sought irrelevant material). This action does not involve all of Plaintiff’s businesses, finances, property, assets and liabilities. It involves issues relating to his ownership interest in Rockville Corp. and the Property. Third, as explained in our February 1, 2023 letter, requests concerning 172 Bargain Liquors Inc. seemingly arise from defendants’ second (breach of contract) and third (unjust enrichment) counterclaims, which are legally defective on several grounds including that each claim is time- barred. As you are aware, both claims are based on allegations that xxxx xxxxx and Plaintiff entered into purported verbal “profit-share” agreement with respect to 172 Bargain Liquors Inc. which Plaintiff is alleged to have breached in 2013. See Counterclaims ¶¶ 92, 99; CPLR § 213(1)- (2). Based on the foregoing, there is no reason for defendants to seek disclosure of documents regarding time-barred claims that are otherwise facially defective and meritless. Based on the foregoing, we hereby request that defendants/counterclaim plaintiffs agree, by no later than Monday, February 13th to withdraw the foregoing Subpoenas by advising the undersigned, and the non-parties to whom the Subpoenas were issued, of said withdrawal in writing. Plaintiff and xxxxx expressly reserve all of their rights, claims, remedies and defenses under applicable law. Very truly yours, /s/ Elizabeth S. Sy Elizabeth S Sy For the Firm 993896 RUSKIN MOSCOU FALTISCHEK