Preview
FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019
NYSCEF DOC. NO. 114 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- ATTORNEY AFFIRMATION IN
SUPPORT OF PLAINTIFF’S CROSS-
MOTION TO STRIKE PLEADINGS AND
IN OPPOSITION TO DEFENDANTS’
MOTION TO STRIKE PLEADINGS
SR HOMECARE OF NY, INC.,
EVERGREEN ADULT DAY CARE IN FLUSHING, INC., Motion Sequences 5 & 6
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,
Défendants,
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:
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1. I am the attorney of record for the Plaintiff, YANGSIL KANG, individually and in her
shareholder derivative capacity, and I make this Affirmation based on conversations with
plaintiff and other witnesses, on personal knowledge through my investigation of the case
and through a review and understanding of the documents and files retained by my office
for the prosecution of this matter.
2. I make this Affirmation in support of Plaintiff’s within Cross Motion No. 6, pursuant to
CPLR 3126, to Strike Defendants’ Pleading due to their willful and contumacious
conduct in repeatedly refusing to comply with Plaintiff’s discovery demands, in defying
the Stipulation herein resolving a prior discovery dispute, in engaging in a “document
dumping” stratagem, and in violating this Court’s prior discovery Order. That long
pattern of delay and non-compliance is set forth in detail below in “Procedural History”.
It explains why Plaintiff has been compelled to bring her Cross Motion No. 6 to Strike
Defendants’ Pleadings.
3. Similarly, that “Procedural History” shows that Defendants’ Motion No. 5 to Strike
Plaintiff’s Pleadings is in fact a veritable screen intended to distract this Court’s attention
away from Defendants’ own abject discovery failures. In any event, Defendant’s Motion
No. 5 is not only a red herring on the merits, it is completely unfounded.
I. PROCEDURAL HISTORY
A. BACKGROUND
4. On June 9, 2021, I served a Notice and Demand for Production of Documents and Things
on defense counsel. (Exhibit A).
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5. On June 22, 2021, Defendants served their First Demand for Discovery and Inspection.
(Exhibit B).
6. On July 8, 2021, Defendants’ discovery response to Plaintiff’s Demand for Production of
Documents and Things repeatedly objected to, and mostly refused to, produce documents
whenever there was a request for documents of or related to the “Affiliated Evergreen
Adult Day Care Entities,” on the grounds that the “‘affiliated entities’ [according to
Defendants’ counsel] are undefined.” (Paragraphs 8, 9, 10, 11, 12, 13, 14, 16, 19, 21, and
26 of Defendants’ Response, Exhibit C).
7. This objection was asserted in utter sloppiness. In fact, “Affiliated Evergreen Adult Day
Care Entities” was clearly defined and specified in Plaintiff’s Demand for Discovery on
Page 4, Paragraph Q of Exhibit A, as meaning “the following ten (10) entities: Evergreen
Senior Services, Inc., Evergreen Adult Day Care Center, Inc., Evergreen Senior Day Care
Center, Inc., Evergreen Adult Day Care in Flushing, Inc., Evergreen J.S.C. Adult Day
Care in New York, Inc., Evergreen Flushing New York LLC, Evergreen Homecare
Service of NY, Inc., SR Homecare of NY, Inc. and Elim Home Care Agency, LLC.”
(Exhibit C).
8. Therefore, Defendants’ refusal to provide such documents was improper and
unreasonable.
9. Additionally, Defendants’ discovery response repeatedly objected to and repeatedly
refused to produce certain financial and other documents stating, “Defendants object to
this demand as Plaintiff has shown no entitlement to these records.” (Paragraphs 8, 9, 10,
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11, 12, 13, 14, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37 of Defendants’
Response, Exhibit C).
10. Defendants’ refusal to provide such documents was improper and unreasonable. It is
impossible to see how such financial documents are not relevant to Plaintiff’s claims as
both a stockholder and employee for an accounting of the earnings and profits of the
Defendants. Moreover, the legal standard for disclosure is not one of “entitlement” but,
as CPLR 3101(a) clearly states, “There shall be full disclosure of all evidence material
and necessary in the prosecution or defense of an action.” CPLR 3101(a). The Court of
Appeals in Allen v. Crowell-Collier Publishing Co, 21 N.Y.2d 403, 288 N.Y.S.2d 449
(1968) fused the dual requirements of “material and necessary” into the single word
“relevant.” The Court held that the statutory phrase “material and necessary” must 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 Publishing Co, 21 N.Y.2d 403, 288
N.Y.S.2d 449 (1968).
B. PLAINTIFF’S MOTION SEQUENCE NUMBER 3
AND THE STIPULATION PURPORTING TO RESOLVE IT
11. On August 6, 2021, Plaintiff filed Motion Sequence Number 3 (“Mot.Seq.3”) which
included, inter alia, a Notice of Motion and Affirmation in Support of Motion to Compel
Discovery because of Defendants’ refusal to turn over the above-mentioned documents.
(Exhibit D).
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12. 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) (the “Stipulation”).
13. In that Stipulation, the parties agreed to and reaffirmed a clear priority and sequence of
discovery coinciding with the priority of notices and demands for discovery that had
already been established: “On or before October 13, 2021, Defendants will supplement
their production and agree to fully produce all documents requested in Plaintiffs’ Demand
to Produce Documents and Things, promulgated on June 9, 2021, with appropriate
HIPAA redactions and the exception of privileged, irrelevant, or otherwise legally
objectionable material.” (Exhibit E, Paragraph 3).
14. Subsequently, “Plaintiffs will respond to all outstanding discovery demands on or before
October 31, 2021, and agree to fully produce all documents requested in Defendants’
First Demand for Discovery and Inspection promulgated on June 22, 2021, with
appropriate HIPAA redactions and the exception of privileged, irrelevant, or otherwise
legally objectionable material.” (Exhibit E, Paragraph 5).
15. Accordingly, based on the above, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E,
Para. 6), believing that Defendants would comply. As shown below, Defendants did not
have or show any intent to comply.
C. DEFENDANTS “DOCUMENT DUMPING” STRATAGEM
16. On or about October 19, 2021, Defendants’ counsel provided a thumbnail flash drive with
a single PDF file containing 32,000 pages of uncategorized and unorganized material.
The file could not be fully opened even after hours of downloading because of its
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outrageously large size. (See Exhibit F). From what was visible, it was clear that there
was no table of contents, no categorization of the documents, no index, no organization
but only a raw production of bates-stamped documents.
17. I promptly emailed opposing counsel that: “This document dumping stratagem plainly
violates CPLR 3120 and 3122. Other than to create delay, I am not clear why you or your
clients have engaged in a tactic that you and they should know will not go anywhere and
will only amount to discovery obfuscation.” (Exhibit F). I continued: “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).
18. 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
to my bringing a motion under CPLR 3124 and 3126 seeking judicial intervention?”
(Exhibit F).
19. On October 20, 2021, Defendants’ counsel sent me an email designed to make it appear
that sending a single PDF file of 32,000 pages was somehow normal, acceptable and not
a “document dump.” He made the disingenuous claim that he was able to open the file
after just a “few minutes” of downloading on his own computer. (Exhibit G).
20. On October 21, 2021, I replied to this email stating, “I want to clarify that my principal
objection to your document dump was not just to its size, per se, but also to the apparent
failure to categorize and label the mass of paperwork into separate and cognizable files
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and sub files indicating to which of Plaintiff’s Document Demands the paperwork is
responsive. . . I am asking you to categorize, organize and label the paperwork by topic,
subject matter and by the Demand as per all the instructions in the Demand.” (Exhibit H).
21. On October 25, 2021, Defendants’ counsel admitted in his own words, “the great majority
of the documents are [only] responsive to question 5 of your demands, as they relate to
the FLSA action.” (Exhibit I).
22. Astonishingly, question 5, which corresponded to Paragraph 5 of Plaintiff’s Demands,
was not even listed as one of the paragraphs as to which documents were improperly
withheld by Defendants in Mot.Seq.3. (Exhibit D).
23. Instead of responding to and providing the documents which were specifically demanded
in Mot.Seq.3, Defendants instead turned over 32,000 pages of almost useless documents
which were not requested in Mot.Seq.3. This was done purposefully to cloud the issue
and willfully obfuscate discovery.
24. I made this point in responding to Defendants’ counsel’s email on October 26, 2021:
“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 J).
25. To date, over 1 year and 8 months since the original Demand to Produce, Defendants
have still unreasonably refused to provide the requested discovery necessitating my
preparation and filing of this instant Cross Motion to Strike Pleadings as a result of
Defendants’ unreasonable refusals.
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D. PLAINTIFF’S MOTION SEQUENCE NUMBER 4
LEADING TO THE COURT ORDER
26. On or about July 30, 2022, Motion Sequence Number 4 was initiated wherein Plaintiff
respectfully requested the Court to order the Defendants, within 30 days of its decision on
the Motion, to produce all the materials withheld in Paragraphs 8, 9, 10, 11, 12, 13, 14,
16, 19, 21, and 26 of Defendants’ Response (Exhibit C), and Paragraphs 8, 9, 10, 11, 12,
13, 14, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37 of Defendants’
Response (Exhibit C), as set forth above. In the event that Defendants failed to comply,
Plaintiff asked that the Court enter an Order, pursuant to CPLR 3126, Striking the
Pleadings of Defendants based upon their willful noncompliance with discovery, and
granting such other and further relief as this Court deemed just and proper. (Exhibit K).
27. On September 6, 2022, Defendants filed a Memorandum of Law in Opposition. (Exhibit
L).
28. On September 13, 2022, Plaintiff filed a Memorandum of Law in Reply which is
incorporated herein as if it were set forth in its entirety herein. (Exhibit M).
29. On November 15, 2022, this Court issued a written Order (“Court Order’) stating that:
“Plaintiff’s motion is granted solely to the extent that defendants shall respond to
plaintiff’s discovery demands, as is detailed in ¶24 of the moving papers and the
stipulation between the parties, within 30 days of service of a copy of this Order with
Notice of Entry. Further, defendants shall provide the documents demanded, and not
merely serve a flash drive with thirty-two thousand documents contained therein. Failure
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to adhere to the Court’s directives may serve as the basis of a future application for
preclusion.” (Exhibit N).
30. This Order was thereupon filed with the County Clerk of Queens County on November
21, 2022, and a Notice of Entry was filed on November 25, 2022 on NYSCEF to all
counsel of record via NYSCEF. (Exhibit O).
31. The 30-day deadline set by Court Order came and went without Defendants producing a
single page of discovery in compliance with the Court Order to date, which is 80 days
from the filing of the Notice of Entry. Instead, rather than comply therewith, and in order
to mask their glaring failure, Defendants abruptly filed a Motion to strike Plaintiff’s
pleading to further obfuscate the issue as shown further below.
32. II. LEGAL ARGUMENT
A. THE COURT SHOULD GRANT PLAINTIFF’S
CROSS MOTION TO STRIKE PLEADINGS.
Case law supports that the willful and contumacious conduct of the Defendants in
repeatedly refusing Plaintiff’s discovery demands, in defying the Stipulation resolving the
discovery dispute, in engaging in a “document dumping” stratagem, and in violating this
Court’s Order warrants the striking of Defendants’ pleadings.
33. The remedy of striking a party’s pleadings is justified where the moving party has clearly
shown that its opponent’s nondisclosure was willful, contumacious, or in bad
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faith. Commerce & Indus. Ins. Co. v Lib-Com, Ltd., 266 A.D.2d 142, 699 N.Y.S.2d 16,
1999 N.Y. App. Div. LEXIS 12350 (N.Y. App. Div. 1st Dep't 1999).
34. The Second Department, Appellate Division, has held that, given the willful and
contumacious conduct by a party in trying to frustrate the discovery process, the trial
court improvidently exercised its discretion in not granting that branch of the motion of
the opposition to strike the party’s complaint . Honghui Kuang v MetLife, 159 A.D.3d
878, 74 N.Y.S.3d 88, 2018 N.Y. App. Div. LEXIS 1772 (N.Y. App. Div. 2d Dep't 2018).
35. In the instant case, as factually established above, the willful and contumacious conduct
of Defendants in repeatedly refusing Plaintiff’s discovery demands, defying the
stipulation resolving the discovery dispute, engaging in a document dumping stratagem,
and violating this Court’s Order reflects bad faith warranting the remedy of striking
Defendants’ pleadings.
36. Despite the clear directive from this Court, defendants have still failed to comply with the
Court Order. The 30-day compliance date thereunder has been flagrantly disregarded and
violated. Defendants have not asked for more time to respond. They have served and
filed no responsive discovery even though, to date, 80 days have passed since the filing
of the Notice of Entry. They have totally stonewalled and ignored the Court Order.
37. The Court of Appeals clarified what was required for compliance with a court's disclosure
order: “[W]e underscore that compliance with a disclosure order requires both a timely
response and one that evinces a good-faith effort to address the requests
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meaningfully.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55, 58
(1999). Consequently, a party must make certain to respond within the time set by the
court for compliance, and must ensure that the responses answer the demands in a
meaningful way. The Kihl court continued: “If the credibility of court orders and the
integrity of our judicial system are to be maintained, a litigant cannot ignore court orders
with impunity. Indeed, the Legislature, recognizing the need for courts to be able to
command compliance with their disclosure directives, has specifically provided that a
'court may make such orders as are just,' including dismissal of an action.” Kihl v. Pfeffer,
94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90, 722 N.E.2d 55, 58 (1999). See also Weinstein,
Korn & Miller, New York Civil Practice: CPLR ¶¶ 3126.10, 3126.12 (David L.
Ferstendig, 2d Ed. 2022).
38. Defendants should not be afforded more time to comply. In Nationstar Mortgage v.
Jackson, 192 AD3rd 813, 814 (2nd Dept. 2021), the Second Department held that a court
may freely resort to the remedy of striking a pleading upon a showing, as here, that a
party’s failure to comply with a disclosure order was the result of willful and
contumacious conduct.
39. In Fish & Richardson v. Schindler, 75 AD 3d 219 (1st Dept 2010), the First Department
expressly rejected the “one more chance” argument often made by a non-complying party
that its pleading may not be stricken unless and until it is preceded by a conditional order
to this effect. The Court therein noted that there is no such requirement. To substantially
the same effect, see Xiao Yang Chen v. Fischer, 73 AD 3d 219 (2nd Dept. 2010). Here, in
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fact, there has already been a conditional discovery order that has been violated. The
Court Order specifically stated that, “Plaintiff’s motion is granted solely to the extent that
defendants shall respond to plaintiff’s discovery demands, as is detailed in ¶24 of the
moving papers and the stipulation between the parties, within 30 days of service of a
copy of this Order with Notice of Entry. Further, defendants shall provide the documents
demanded, and not merely serve a flash drive with thirty-two thousand documents
contained therein. Failure to adhere to the Court’s directives may serve as the basis of a
future application for preclusion.” (Exhibit N).
40. The relief herein requested was presaged by the Court Order noting that Defendants’
failures to comply would serve as a basis of an application for sanctions. Although the
Court Order referred to an “application for preclusion”, it is clear that, under the
circumstances, it fairly meant “an application to strike pleadings” since preclusion would
not benefit the Plaintiff in seeking documents in Defendants’ possession needed to prove
her case.
41. It is well-settled that a party's "pattern of noncompliance with discovery demands and a
court-ordered stipulation supports an inference of willful and contumacious
conduct ...." (Jackson v Open Communications Omnimedia, LLC, 147 A.D.3d 709, 709,
49 N.Y.S.3d 389 [1st Dept 2017] [citations omitted].) Although, that party may "tender a
reasonable excuse to overcome defendants' showing of willfulness" (Menkes v Delikat,
148 AD3d 442, 442, 50 N.Y.S.3d 318 [1st Dept 2017] [citation omitted]), "failure to offer
a reasonable excuse for. . . noncompliance with discovery requests gives rise to an
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inference of willful and contumacious conduct that [**13] warrant[s] the striking of the
[pleading]." (Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494,
494, 916 N.Y.S.2d 502 [1st Dept 2011] [citations omitted].)
42. In the instant case, the defendants’ “pattern of non-compliance was not just with
discovery demands, and a court-ordered stipulation as in ..." (Jackson v Open
Communications Omnimedia, LLC, 147 A.D.3d 709, 709, 49 N.Y.S.3d 389 [1st Dept
2017], but went far beyond that into a document dumping stratagem and a bald-faced
defiance of a Court Order without any reasonable excuse. Therefore, defendants’ failure
to offer any reasonable excuse for non-compliance in this case gives rise to an “inference
of willful and contumacious conduct that [**13] warrant[s] the striking of the
[pleading]." (Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494,
494, 916 N.Y.S.2d 502 [1st Dept 2011] [citations omitted].)
43. B. THE COURT SHOULD DENY DEFENDANTS’ MOTION TO
STRIKE PLEADINGS.
44. In the Stipulation resolving Motion Sequence Number 3, the parties agreed to and
reaffirmed a clear priority and sequence of discovery coinciding with the priority of
notices and demands for discovery that had already been established: “On or before
October 13, 2021, Defendants will supplement their production and agree to fully
produce all documents requested in Plaintiffs’ Demand to Produce Documents and
Things, promulgated on June 9, 2021, with appropriate HIPAA redactions and the
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exception of privileged, irrelevant, or otherwise legally objectionable material.” (Exhibit
E, Paragraph 3).
45. Subsequently, “Plaintiffs will respond to all outstanding discovery demands on or before
October 31, 2021, and agree to fully produce all documents requested in Defendants’
First Demand for Discovery and Inspection promulgated on June 22, 2021, with
appropriate HIPAA redactions and the exception of privileged, irrelevant, or otherwise
legally objectionable material.” (Exhibit E, Paragraph 5).
46. Accordingly, based on the above, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E,
Para. 6).
47. Plaintiff is still entitled to the clear priority and sequence of discovery coinciding with the
priority of notices and demands for discovery that had already been established. In
Jerrold K-H Sales Corp. v. Walter Kidde & Co., 401 N.Y.S.2d 215 (App. Div. 1978), the
Appellate Division held that the “plaintiff was still entitled to priority” of discovery by
virtue of the fact that “there is no dispute that originally plaintiff had the right to priority”
by reason of the fact that its notice had been served first. ( Dean v Hotel St. Moritz, 27
AD2d 514).
48. On November 15, 2022, this Court issued a written Order (“Court Order’) stating that:
“Plaintiff’s motion is granted solely to the extent that defendants shall respond to
plaintiff’s discovery demands, as is detailed in ¶24 of the moving papers and the
stipulation between the parties, within 30 days of service of a copy of this Order with
Notice of Entry. Further, defendants shall provide the documents demanded, and not
merely serve a flash drive with thirty-two thousand documents contained therein. Failure
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to adhere to the Court’s directives may serve as the basis of a future application for
preclusion.” (Exhibit N).
49. That Court Order also gave precedence and priority to Plaintiff’s discovery requests.
Rahman v. Rahman, 124 N.Y.S.3d 194 (App. Div. 2020) (court order granted defendant
priority in discovery).
50. The Court Order imposed no reciprocal discovery obligations owed by Plaintiff.
51. Not only have Defendants heretofore not made any motion themselves suggesting that
Plaintiff is not in compliance but the Court Order itself is not even directed at Plaintiff.
52. This Order was thereupon filed with the County Clerk of Queens County on November
21, 2022, and a Notice of Entry was filed on November 25, 2022 on NYSCEF to all
counsel of record via NYSCEF. (Exhibit O).
53. The 30-day deadline set by Court Order came and went without Defendants producing a
single page of discovery in compliance with the Court Order to date, which is 80 days
from the filing of the Notice of Entry. Instead, rather than comply therewith, and in order
to mask their glaring failure, Defendants abruptly filed a Motion to strike Plaintiff’s
pleading to further obfuscate the issue as shown further below.
54. Defendants’ Motion No. 5 to Strike Plaintiff’s Pleadings is a veritable screen intended to
distract this Court’s attention away from Defendants’ own abject discovery failures and
its brazen disregard and disrespect for the Court’s Order.
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55. As the Court of Appeals stated: “[W]e underscore that compliance with a disclosure order
requires both a timely response and one that evinces a good-faith effort to address the
requests meaningfully.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d
55, 58 (1999). Consequently, a party must make certain to respond within the time set by
the court for compliance, and must ensure that the responses answer the demands in a
meaningful way. The Kihl court continued: “If the credibility of court orders and the
integrity of our judicial system are to be maintained, a litigant cannot ignore court orders
with impunity. Indeed, the Legislature, recognizing the need for courts to be able to
command compliance with their disclosure directives, has specifically provided that a
'court may make such orders as are just,' including dismissal of an action.” Kihl v. Pfeffer,
94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90, 722 N.E.2d 55, 58 (1999). See also Weinstein,
Korn & Miller, New York Civil Practice: CPLR ¶¶ 3126.10, 3126.12 (David L.
Ferstendig, 2d Ed. 2022).
CERTIFICATION
56. I certify pursuant to Uniform Rules for Trial Courts Section 202.8-b that the font used in
this Affirmation in Support of Motion to Strike Pleadings is Times New Roman 12, and
there are 4,144 words.
WHEREFORE, it is respectfully requested that this Court, pursuant to CPLR 3126,
grant the within Cross Motion to Strike Pleadings based on Defendants’ willful and
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contumacious non-compliance with discovery as detailed above, and provide for Defendants’
Answer to be stricken for their failure to comply with the Order, deny defendants’ motion to
strike pleadings, and grant such other and further relief as this Court deems just and proper.
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
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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FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 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- ATTORNEY AFFIRMATION IN SUPPORT OF PLAINTIFF’S CROSS- MOTION TO STRIKE PLEADINGS AND IN OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PLEADINGS SR HOMECARE OF NY, INC., EVERGREEN ADULT DAY CARE IN FLUSHING, INC., Motion Sequences 5 & 6 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, Défendants, 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 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 1. I am the attorney of record for the Plaintiff, YANGSIL KANG, individually and in her shareholder derivative capacity, and I make this Affirmation based on conversations with plaintiff and other witnesses, on personal knowledge through my investigation of the case and through a review and understanding of the documents and files retained by my office for the prosecution of this matter. 2. I make this Affirmation in support of Plaintiff’s within Cross Motion No. 6, pursuant to CPLR 3126, to Strike Defendants’ Pleading due to their willful and contumacious conduct in repeatedly refusing to comply with Plaintiff’s discovery demands, in defying the Stipulation herein resolving a prior discovery dispute, in engaging in a “document dumping” stratagem, and in violating this Court’s prior discovery Order. That long pattern of delay and non-compliance is set forth in detail below in “Procedural History”. It explains why Plaintiff has been compelled to bring her Cross Motion No. 6 to Strike Defendants’ Pleadings. 3. Similarly, that “Procedural History” shows that Defendants’ Motion No. 5 to Strike Plaintiff’s Pleadings is in fact a veritable screen intended to distract this Court’s attention away from Defendants’ own abject discovery failures. In any event, Defendant’s Motion No. 5 is not only a red herring on the merits, it is completely unfounded. I. PROCEDURAL HISTORY A. BACKGROUND 4. On June 9, 2021, I served a Notice and Demand for Production of Documents and Things on defense counsel. (Exhibit A). 2 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 5. On June 22, 2021, Defendants served their First Demand for Discovery and Inspection. (Exhibit B). 6. On July 8, 2021, Defendants’ discovery response to Plaintiff’s Demand for Production of Documents and Things repeatedly objected to, and mostly refused to, produce documents whenever there was a request for documents of or related to the “Affiliated Evergreen Adult Day Care Entities,” on the grounds that the “‘affiliated entities’ [according to Defendants’ counsel] are undefined.” (Paragraphs 8, 9, 10, 11, 12, 13, 14, 16, 19, 21, and 26 of Defendants’ Response, Exhibit C). 7. This objection was asserted in utter sloppiness. In fact, “Affiliated Evergreen Adult Day Care Entities” was clearly defined and specified in Plaintiff’s Demand for Discovery on Page 4, Paragraph Q of Exhibit A, as meaning “the following ten (10) entities: Evergreen Senior Services, Inc., Evergreen Adult Day Care Center, Inc., Evergreen Senior Day Care Center, Inc., Evergreen Adult Day Care in Flushing, Inc., Evergreen J.S.C. Adult Day Care in New York, Inc., Evergreen Flushing New York LLC, Evergreen Homecare Service of NY, Inc., SR Homecare of NY, Inc. and Elim Home Care Agency, LLC.” (Exhibit C). 8. Therefore, Defendants’ refusal to provide such documents was improper and unreasonable. 9. Additionally, Defendants’ discovery response repeatedly objected to and repeatedly refused to produce certain financial and other documents stating, “Defendants object to this demand as Plaintiff has shown no entitlement to these records.” (Paragraphs 8, 9, 10, 3 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 11, 12, 13, 14, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37 of Defendants’ Response, Exhibit C). 10. Defendants’ refusal to provide such documents was improper and unreasonable. It is impossible to see how such financial documents are not relevant to Plaintiff’s claims as both a stockholder and employee for an accounting of the earnings and profits of the Defendants. Moreover, the legal standard for disclosure is not one of “entitlement” but, as CPLR 3101(a) clearly states, “There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action.” CPLR 3101(a). The Court of Appeals in Allen v. Crowell-Collier Publishing Co, 21 N.Y.2d 403, 288 N.Y.S.2d 449 (1968) fused the dual requirements of “material and necessary” into the single word “relevant.” The Court held that the statutory phrase “material and necessary” must 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 Publishing Co, 21 N.Y.2d 403, 288 N.Y.S.2d 449 (1968). B. PLAINTIFF’S MOTION SEQUENCE NUMBER 3 AND THE STIPULATION PURPORTING TO RESOLVE IT 11. On August 6, 2021, Plaintiff filed Motion Sequence Number 3 (“Mot.Seq.3”) which included, inter alia, a Notice of Motion and Affirmation in Support of Motion to Compel Discovery because of Defendants’ refusal to turn over the above-mentioned documents. (Exhibit D). 4 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 12. 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) (the “Stipulation”). 13. In that Stipulation, the parties agreed to and reaffirmed a clear priority and sequence of discovery coinciding with the priority of notices and demands for discovery that had already been established: “On or before October 13, 2021, Defendants will supplement their production and agree to fully produce all documents requested in Plaintiffs’ Demand to Produce Documents and Things, promulgated on June 9, 2021, with appropriate HIPAA redactions and the exception of privileged, irrelevant, or otherwise legally objectionable material.” (Exhibit E, Paragraph 3). 14. Subsequently, “Plaintiffs will respond to all outstanding discovery demands on or before October 31, 2021, and agree to fully produce all documents requested in Defendants’ First Demand for Discovery and Inspection promulgated on June 22, 2021, with appropriate HIPAA redactions and the exception of privileged, irrelevant, or otherwise legally objectionable material.” (Exhibit E, Paragraph 5). 15. Accordingly, based on the above, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E, Para. 6), believing that Defendants would comply. As shown below, Defendants did not have or show any intent to comply. C. DEFENDANTS “DOCUMENT DUMPING” STRATAGEM 16. On or about October 19, 2021, Defendants’ counsel provided a thumbnail flash drive with a single PDF file containing 32,000 pages of uncategorized and unorganized material. The file could not be fully opened even after hours of downloading because of its 5 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 outrageously large size. (See Exhibit F). From what was visible, it was clear that there was no table of contents, no categorization of the documents, no index, no organization but only a raw production of bates-stamped documents. 17. I promptly emailed opposing counsel that: “This document dumping stratagem plainly violates CPLR 3120 and 3122. Other than to create delay, I am not clear why you or your clients have engaged in a tactic that you and they should know will not go anywhere and will only amount to discovery obfuscation.” (Exhibit F). I continued: “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). 18. 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 to my bringing a motion under CPLR 3124 and 3126 seeking judicial intervention?” (Exhibit F). 19. On October 20, 2021, Defendants’ counsel sent me an email designed to make it appear that sending a single PDF file of 32,000 pages was somehow normal, acceptable and not a “document dump.” He made the disingenuous claim that he was able to open the file after just a “few minutes” of downloading on his own computer. (Exhibit G). 20. On October 21, 2021, I replied to this email stating, “I want to clarify that my principal objection to your document dump was not just to its size, per se, but also to the apparent failure to categorize and label the mass of paperwork into separate and cognizable files 6 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 and sub files indicating to which of Plaintiff’s Document Demands the paperwork is responsive. . . I am asking you to categorize, organize and label the paperwork by topic, subject matter and by the Demand as per all the instructions in the Demand.” (Exhibit H). 21. On October 25, 2021, Defendants’ counsel admitted in his own words, “the great majority of the documents are [only] responsive to question 5 of your demands, as they relate to the FLSA action.” (Exhibit I). 22. Astonishingly, question 5, which corresponded to Paragraph 5 of Plaintiff’s Demands, was not even listed as one of the paragraphs as to which documents were improperly withheld by Defendants in Mot.Seq.3. (Exhibit D). 23. Instead of responding to and providing the documents which were specifically demanded in Mot.Seq.3, Defendants instead turned over 32,000 pages of almost useless documents which were not requested in Mot.Seq.3. This was done purposefully to cloud the issue and willfully obfuscate discovery. 24. I made this point in responding to Defendants’ counsel’s email on October 26, 2021: “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 J). 25. To date, over 1 year and 8 months since the original Demand to Produce, Defendants have still unreasonably refused to provide the requested discovery necessitating my preparation and filing of this instant Cross Motion to Strike Pleadings as a result of Defendants’ unreasonable refusals. 7 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 D. PLAINTIFF’S MOTION SEQUENCE NUMBER 4 LEADING TO THE COURT ORDER 26. On or about July 30, 2022, Motion Sequence Number 4 was initiated wherein Plaintiff respectfully requested the Court to order the Defendants, within 30 days of its decision on the Motion, to produce all the materials withheld in Paragraphs 8, 9, 10, 11, 12, 13, 14, 16, 19, 21, and 26 of Defendants’ Response (Exhibit C), and Paragraphs 8, 9, 10, 11, 12, 13, 14, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37 of Defendants’ Response (Exhibit C), as set forth above. In the event that Defendants failed to comply, Plaintiff asked that the Court enter an Order, pursuant to CPLR 3126, Striking the Pleadings of Defendants based upon their willful noncompliance with discovery, and granting such other and further relief as this Court deemed just and proper. (Exhibit K). 27. On September 6, 2022, Defendants filed a Memorandum of Law in Opposition. (Exhibit L). 28. On September 13, 2022, Plaintiff filed a Memorandum of Law in Reply which is incorporated herein as if it were set forth in its entirety herein. (Exhibit M). 29. On November 15, 2022, this Court issued a written Order (“Court Order’) stating that: “Plaintiff’s motion is granted solely to the extent that defendants shall respond to plaintiff’s discovery demands, as is detailed in ¶24 of the moving papers and the stipulation between the parties, within 30 days of service of a copy of this Order with Notice of Entry. Further, defendants shall provide the documents demanded, and not merely serve a flash drive with thirty-two thousand documents contained therein. Failure 8 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 to adhere to the Court’s directives may serve as the basis of a future application for preclusion.” (Exhibit N). 30. This Order was thereupon filed with the County Clerk of Queens County on November 21, 2022, and a Notice of Entry was filed on November 25, 2022 on NYSCEF to all counsel of record via NYSCEF. (Exhibit O). 31. The 30-day deadline set by Court Order came and went without Defendants producing a single page of discovery in compliance with the Court Order to date, which is 80 days from the filing of the Notice of Entry. Instead, rather than comply therewith, and in order to mask their glaring failure, Defendants abruptly filed a Motion to strike Plaintiff’s pleading to further obfuscate the issue as shown further below. 32. II. LEGAL ARGUMENT A. THE COURT SHOULD GRANT PLAINTIFF’S CROSS MOTION TO STRIKE PLEADINGS. Case law supports that the willful and contumacious conduct of the Defendants in repeatedly refusing Plaintiff’s discovery demands, in defying the Stipulation resolving the discovery dispute, in engaging in a “document dumping” stratagem, and in violating this Court’s Order warrants the striking of Defendants’ pleadings. 33. The remedy of striking a party’s pleadings is justified where the moving party has clearly shown that its opponent’s nondisclosure was willful, contumacious, or in bad 9 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 faith. Commerce & Indus. Ins. Co. v Lib-Com, Ltd., 266 A.D.2d 142, 699 N.Y.S.2d 16, 1999 N.Y. App. Div. LEXIS 12350 (N.Y. App. Div. 1st Dep't 1999). 34. The Second Department, Appellate Division, has held that, given the willful and contumacious conduct by a party in trying to frustrate the discovery process, the trial court improvidently exercised its discretion in not granting that branch of the motion of the opposition to strike the party’s complaint . Honghui Kuang v MetLife, 159 A.D.3d 878, 74 N.Y.S.3d 88, 2018 N.Y. App. Div. LEXIS 1772 (N.Y. App. Div. 2d Dep't 2018). 35. In the instant case, as factually established above, the willful and contumacious conduct of Defendants in repeatedly refusing Plaintiff’s discovery demands, defying the stipulation resolving the discovery dispute, engaging in a document dumping stratagem, and violating this Court’s Order reflects bad faith warranting the remedy of striking Defendants’ pleadings. 36. Despite the clear directive from this Court, defendants have still failed to comply with the Court Order. The 30-day compliance date thereunder has been flagrantly disregarded and violated. Defendants have not asked for more time to respond. They have served and filed no responsive discovery even though, to date, 80 days have passed since the filing of the Notice of Entry. They have totally stonewalled and ignored the Court Order. 37. The Court of Appeals clarified what was required for compliance with a court's disclosure order: “[W]e underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests 10 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 meaningfully.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55, 58 (1999). Consequently, a party must make certain to respond within the time set by the court for compliance, and must ensure that the responses answer the demands in a meaningful way. The Kihl court continued: “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders as are just,' including dismissal of an action.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90, 722 N.E.2d 55, 58 (1999). See also Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶¶ 3126.10, 3126.12 (David L. Ferstendig, 2d Ed. 2022). 38. Defendants should not be afforded more time to comply. In Nationstar Mortgage v. Jackson, 192 AD3rd 813, 814 (2nd Dept. 2021), the Second Department held that a court may freely resort to the remedy of striking a pleading upon a showing, as here, that a party’s failure to comply with a disclosure order was the result of willful and contumacious conduct. 39. In Fish & Richardson v. Schindler, 75 AD 3d 219 (1st Dept 2010), the First Department expressly rejected the “one more chance” argument often made by a non-complying party that its pleading may not be stricken unless and until it is preceded by a conditional order to this effect. The Court therein noted that there is no such requirement. To substantially the same effect, see Xiao Yang Chen v. Fischer, 73 AD 3d 219 (2nd Dept. 2010). Here, in 11 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 fact, there has already been a conditional discovery order that has been violated. The Court Order specifically stated that, “Plaintiff’s motion is granted solely to the extent that defendants shall respond to plaintiff’s discovery demands, as is detailed in ¶24 of the moving papers and the stipulation between the parties, within 30 days of service of a copy of this Order with Notice of Entry. Further, defendants shall provide the documents demanded, and not merely serve a flash drive with thirty-two thousand documents contained therein. Failure to adhere to the Court’s directives may serve as the basis of a future application for preclusion.” (Exhibit N). 40. The relief herein requested was presaged by the Court Order noting that Defendants’ failures to comply would serve as a basis of an application for sanctions. Although the Court Order referred to an “application for preclusion”, it is clear that, under the circumstances, it fairly meant “an application to strike pleadings” since preclusion would not benefit the Plaintiff in seeking documents in Defendants’ possession needed to prove her case. 41. It is well-settled that a party's "pattern of noncompliance with discovery demands and a court-ordered stipulation supports an inference of willful and contumacious conduct ...." (Jackson v Open Communications Omnimedia, LLC, 147 A.D.3d 709, 709, 49 N.Y.S.3d 389 [1st Dept 2017] [citations omitted].) Although, that party may "tender a reasonable excuse to overcome defendants' showing of willfulness" (Menkes v Delikat, 148 AD3d 442, 442, 50 N.Y.S.3d 318 [1st Dept 2017] [citation omitted]), "failure to offer a reasonable excuse for. . . noncompliance with discovery requests gives rise to an 12 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 inference of willful and contumacious conduct that [**13] warrant[s] the striking of the [pleading]." (Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494, 494, 916 N.Y.S.2d 502 [1st Dept 2011] [citations omitted].) 42. In the instant case, the defendants’ “pattern of non-compliance was not just with discovery demands, and a court-ordered stipulation as in ..." (Jackson v Open Communications Omnimedia, LLC, 147 A.D.3d 709, 709, 49 N.Y.S.3d 389 [1st Dept 2017], but went far beyond that into a document dumping stratagem and a bald-faced defiance of a Court Order without any reasonable excuse. Therefore, defendants’ failure to offer any reasonable excuse for non-compliance in this case gives rise to an “inference of willful and contumacious conduct that [**13] warrant[s] the striking of the [pleading]." (Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494, 494, 916 N.Y.S.2d 502 [1st Dept 2011] [citations omitted].) 43. B. THE COURT SHOULD DENY DEFENDANTS’ MOTION TO STRIKE PLEADINGS. 44. In the Stipulation resolving Motion Sequence Number 3, the parties agreed to and reaffirmed a clear priority and sequence of discovery coinciding with the priority of notices and demands for discovery that had already been established: “On or before October 13, 2021, Defendants will supplement their production and agree to fully produce all documents requested in Plaintiffs’ Demand to Produce Documents and Things, promulgated on June 9, 2021, with appropriate HIPAA redactions and the 13 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 exception of privileged, irrelevant, or otherwise legally objectionable material.” (Exhibit E, Paragraph 3). 45. Subsequently, “Plaintiffs will respond to all outstanding discovery demands on or before October 31, 2021, and agree to fully produce all documents requested in Defendants’ First Demand for Discovery and Inspection promulgated on June 22, 2021, with appropriate HIPAA redactions and the exception of privileged, irrelevant, or otherwise legally objectionable material.” (Exhibit E, Paragraph 5). 46. Accordingly, based on the above, Plaintiff agreed to withdraw Mot.Seq.3. (Exhibit E, Para. 6). 47. Plaintiff is still entitled to the clear priority and sequence of discovery coinciding with the priority of notices and demands for discovery that had already been established. In Jerrold K-H Sales Corp. v. Walter Kidde & Co., 401 N.Y.S.2d 215 (App. Div. 1978), the Appellate Division held that the “plaintiff was still entitled to priority” of discovery by virtue of the fact that “there is no dispute that originally plaintiff had the right to priority” by reason of the fact that its notice had been served first. ( Dean v Hotel St. Moritz, 27 AD2d 514). 48. On November 15, 2022, this Court issued a written Order (“Court Order’) stating that: “Plaintiff’s motion is granted solely to the extent that defendants shall respond to plaintiff’s discovery demands, as is detailed in ¶24 of the moving papers and the stipulation between the parties, within 30 days of service of a copy of this Order with Notice of Entry. Further, defendants shall provide the documents demanded, and not merely serve a flash drive with thirty-two thousand documents contained therein. Failure 14 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 to adhere to the Court’s directives may serve as the basis of a future application for preclusion.” (Exhibit N). 49. That Court Order also gave precedence and priority to Plaintiff’s discovery requests. Rahman v. Rahman, 124 N.Y.S.3d 194 (App. Div. 2020) (court order granted defendant priority in discovery). 50. The Court Order imposed no reciprocal discovery obligations owed by Plaintiff. 51. Not only have Defendants heretofore not made any motion themselves suggesting that Plaintiff is not in compliance but the Court Order itself is not even directed at Plaintiff. 52. This Order was thereupon filed with the County Clerk of Queens County on November 21, 2022, and a Notice of Entry was filed on November 25, 2022 on NYSCEF to all counsel of record via NYSCEF. (Exhibit O). 53. The 30-day deadline set by Court Order came and went without Defendants producing a single page of discovery in compliance with the Court Order to date, which is 80 days from the filing of the Notice of Entry. Instead, rather than comply therewith, and in order to mask their glaring failure, Defendants abruptly filed a Motion to strike Plaintiff’s pleading to further obfuscate the issue as shown further below. 54. Defendants’ Motion No. 5 to Strike Plaintiff’s Pleadings is a veritable screen intended to distract this Court’s attention away from Defendants’ own abject discovery failures and its brazen disregard and disrespect for the Court’s Order. 15 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 55. As the Court of Appeals stated: “[W]e underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55, 58 (1999). Consequently, a party must make certain to respond within the time set by the court for compliance, and must ensure that the responses answer the demands in a meaningful way. The Kihl court continued: “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders as are just,' including dismissal of an action.” Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90, 722 N.E.2d 55, 58 (1999). See also Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶¶ 3126.10, 3126.12 (David L. Ferstendig, 2d Ed. 2022). CERTIFICATION 56. I certify pursuant to Uniform Rules for Trial Courts Section 202.8-b that the font used in this Affirmation in Support of Motion to Strike Pleadings is Times New Roman 12, and there are 4,144 words. WHEREFORE, it is respectfully requested that this Court, pursuant to CPLR 3126, grant the within Cross Motion to Strike Pleadings based on Defendants’ willful and 16 of 17 FILED: QUEENS COUNTY CLERK 02/13/2023 11:57 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 02/13/2023 contumacious non-compliance with discovery as detailed above, and provide for Defendants’ Answer to be stricken for their failure to comply with the Order, deny defendants’ motion to strike pleadings, and grant such other and further relief as this Court deems just and proper. 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 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 17 of 17