Preview
FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
————————————————————————X
YANGSIL KANG, individually and as a shareholder
on behalf of ELIM HOME CARE AGENCY, LLC and
EVERGREEN ADULT DAYCARE CENTER, INC.,
Plaintiffs, Index No.: 707381/2019
-against- AFFIRMATION OF
GOOD FAITH
SR HOMECARE OF NY, INC.,
EVERGREEN ADULT DAY CARE IN FLUSHING, INC.,
EVERGREEN J.S.C. ADULT DAY CARE IN NY, INC.,
EVERGREEN FLUSHING NEW YORK LLC,
EVERGREEN SENIOR DAY CARE CENTER, INC.,
EVERGREEN HOMECARE SERVICE OF NY, INC.,
BYUNGKI KOO a/k/a JAMES KOO and
HYUNGJONG KOO a/k/a TAMMY KOO,
Defendants,
ELIM HOME CARE AGENCY, LLC and
EVERGREEN ADULT DAY CARE CENTER, INC.,
Nominal Defendants.
———————————————————————————X
JIN HAN, Esq., an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the following under penalty of perjury:
1. I am the attorney of record for the Plaintiff, YANGSIL KANG, individually and in her
shareholder derivative capacity, and make this affirmation of good faith in support of the
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FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019
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within Cross Motion, pursuant to CPLR 3126, to Strike Pleadings and in Opposition to
Defendants’ Motion to Strike Pleadings.
2. The Stipulation Resolving Motion Sequence Number 3 (“Mot.Seq.3”), which is attached
as an exhibit in the primary Affirmation, was the culmination of numerous emails and
telephone calls between myself and opposing counsel sincerely attempting in good faith
to resolve the present discovery dispute. (Exhibit E).
3. As stated in Paragraph 11 of the primary Affirmation, “After multiple good faith emails
and telephone conversations attempting to resolve the discovery dispute, the parties on
August 26, 2021 entered a Stipulation Resolving Mot.Seq.3.” (Exhibit E).
4. Accordingly, in good faith, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E, Para. 6).
5. When it became apparent that Defendants were engaging in a document dumping
strategem, as detailed in the primary Affirmation, at least 5 emails were exchanged
between myself and opposing counsel (see Exhibits F, G, H, I, J ), not to mention
numerous texts and telephone calls as specifically referenced in the email exchange.
6. On October 19, 2021, I emailed opposing counsel, “After multiple good faith emails and
telephone conversations attempting to resolve our discovery dispute in Motion Sequence
No. 3, I thought we had both worked hard to come to an acceptable resolution.
Apparently, I was mistaken.” (Exhibit F).
7. In good faith, I attempted yet again to resolve this discovery dispute stating, “Can we
have a telephone conference tomorrow at 3pm, 4pm or 5pm, Thursday at 1pm, or Friday
at 3pm, 4pm or 5pm to yet again try to resolve this discovery dispute in good faith prior
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FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023
to my bringing a motion under CPLR 3124 and 3126 seeking judicial intervention?”
(Exhibit F)
8. On October 26, 2021, I clearly communicated to opposing counsel as follows:
“Moreover, you have evidently supplied no documents whatsoever which purport to be
responsive to the vast number of the Demands, except for Demand #5. In fact, you have
virtually ignored the specific failures to produce delineated and demanded in our Motion
to Compel in Motion Sequence #3. You are not compliant.” (Exhibit I).
9. To this current date, which is over 1 year and 9 months since the original Demand to
Produce, Defendants have unreasonably refused to provide the specific requested
discovery.
10. There have been numerous attempts to resolve the underlying discovery dispute without
resort to judicial intervention. However, these good faith efforts have failed,
necessitating the instant motion.
11. This instant motion, however, is not strictly speaking a discovery motion but a violation
of and failure to comply with a Court Order and does not necessitate a meet and confer.
Dated: New York, New York
February 13, 2023
Yours, etc.
/s/ Jin Han, Esq.
Law Offices of Jin Han, P.C
100 Park Avenue, Suite 1600
New York, NY 10017
Tel (917) 701-7976
jinhan@jinhanlaw.com
Attorney for Plaintiffs
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FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023
To: Andrew Grossman, Esq.
Rha, Kim, Grossman & McIlwain, LLP
266 West 37th Street, Suite 1600
New York, NY 10018
Tel (718) 321-9797
agrossman@rhakimlaw.com
Attorneys for Defendants
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Preview
FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ————————————————————————X YANGSIL KANG, individually and as a shareholder on behalf of ELIM HOME CARE AGENCY, LLC and EVERGREEN ADULT DAYCARE CENTER, INC., Plaintiffs, Index No.: 707381/2019 -against- AFFIRMATION OF GOOD FAITH SR HOMECARE OF NY, INC., EVERGREEN ADULT DAY CARE IN FLUSHING, INC., EVERGREEN J.S.C. ADULT DAY CARE IN NY, INC., EVERGREEN FLUSHING NEW YORK LLC, EVERGREEN SENIOR DAY CARE CENTER, INC., EVERGREEN HOMECARE SERVICE OF NY, INC., BYUNGKI KOO a/k/a JAMES KOO and HYUNGJONG KOO a/k/a TAMMY KOO, Defendants, ELIM HOME CARE AGENCY, LLC and EVERGREEN ADULT DAY CARE CENTER, INC., Nominal Defendants. ———————————————————————————X JIN HAN, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under penalty of perjury: 1. I am the attorney of record for the Plaintiff, YANGSIL KANG, individually and in her shareholder derivative capacity, and make this affirmation of good faith in support of the 1 of 4 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023 within Cross Motion, pursuant to CPLR 3126, to Strike Pleadings and in Opposition to Defendants’ Motion to Strike Pleadings. 2. The Stipulation Resolving Motion Sequence Number 3 (“Mot.Seq.3”), which is attached as an exhibit in the primary Affirmation, was the culmination of numerous emails and telephone calls between myself and opposing counsel sincerely attempting in good faith to resolve the present discovery dispute. (Exhibit E). 3. As stated in Paragraph 11 of the primary Affirmation, “After multiple good faith emails and telephone conversations attempting to resolve the discovery dispute, the parties on August 26, 2021 entered a Stipulation Resolving Mot.Seq.3.” (Exhibit E). 4. Accordingly, in good faith, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E, Para. 6). 5. When it became apparent that Defendants were engaging in a document dumping strategem, as detailed in the primary Affirmation, at least 5 emails were exchanged between myself and opposing counsel (see Exhibits F, G, H, I, J ), not to mention numerous texts and telephone calls as specifically referenced in the email exchange. 6. On October 19, 2021, I emailed opposing counsel, “After multiple good faith emails and telephone conversations attempting to resolve our discovery dispute in Motion Sequence No. 3, I thought we had both worked hard to come to an acceptable resolution. Apparently, I was mistaken.” (Exhibit F). 7. In good faith, I attempted yet again to resolve this discovery dispute stating, “Can we have a telephone conference tomorrow at 3pm, 4pm or 5pm, Thursday at 1pm, or Friday at 3pm, 4pm or 5pm to yet again try to resolve this discovery dispute in good faith prior 2 of 4 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023 to my bringing a motion under CPLR 3124 and 3126 seeking judicial intervention?” (Exhibit F) 8. On October 26, 2021, I clearly communicated to opposing counsel as follows: “Moreover, you have evidently supplied no documents whatsoever which purport to be responsive to the vast number of the Demands, except for Demand #5. In fact, you have virtually ignored the specific failures to produce delineated and demanded in our Motion to Compel in Motion Sequence #3. You are not compliant.” (Exhibit I). 9. To this current date, which is over 1 year and 9 months since the original Demand to Produce, Defendants have unreasonably refused to provide the specific requested discovery. 10. There have been numerous attempts to resolve the underlying discovery dispute without resort to judicial intervention. However, these good faith efforts have failed, necessitating the instant motion. 11. This instant motion, however, is not strictly speaking a discovery motion but a violation of and failure to comply with a Court Order and does not necessitate a meet and confer. Dated: New York, New York February 13, 2023 Yours, etc. /s/ Jin Han, Esq. Law Offices of Jin Han, P.C 100 Park Avenue, Suite 1600 New York, NY 10017 Tel (917) 701-7976 jinhan@jinhanlaw.com Attorney for Plaintiffs 3 of 4 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/13/2023 To: Andrew Grossman, Esq. Rha, Kim, Grossman & McIlwain, LLP 266 West 37th Street, Suite 1600 New York, NY 10018 Tel (718) 321-9797 agrossman@rhakimlaw.com Attorneys for Defendants 4 of 4