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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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YANGSIL KANG, individually and as a shareholder
on behalf of ELIM HOME CARE AGENCY, LLC and
EVERGREEN ADULT DAYCARE CENTER, INC., Index No.: 707381/19
Plaintiff,
v.
SR HOMECARE OF NY, INC.,
EVERGREEN ADULT DAYCARE 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.
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MEMORANDUM OF LAW IN OPPOSITION
RHA KIM GROSSMAN & MCILWAIN, LLP
29 W 36th St. Suite 402
New York, NY 10018
(718) 321-9797
Attorneys for Defendants and Nominal Defendants
On the Brief:
Andrew D. Grossman, Esq.
Leopold Raic, Esq.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES………………………………………………………. 3
PRELIMINARY STATEMENT…………………………………………………… 4
I. Plaintiffs have not complied with the court’s rules regarding meet and
confer prior to initiating motion practice, as Defendants have not heard
from them this calendar year..………………………………………………… 5
II. Even if this motion was properly brough before the court, it is
substantively baseless, as Defendants have complied with their
obligations by timely responding or objecting to all discovery demands,
consistent with the executed discovery stipulation …………………….... 7
III. Plaintiffs accuse Defendants of failure to comply with their discovery
demands, yet have provided no responses to Defendants’ discovery
demands………………………………………………………………… 10
CONCLUSION…………………………………………………………………..…. 11
CERTIFICATION…………………………………………………………………… 12
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TABLE OF AUTHORITIES
Cases Page
Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong,
2022 NY Slip Op 31139 (Sup. NY 2022)………………………………………………5
Statutes
22 NYCRR § 202.20-f………………………………………………………………………….5
22 NYCRR § 202.7 (a)…………………………………………………………………………5
NY Judiciary Law § 753……………………………………………………………………….11
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PRELIMINARY STATEMENT
This matter arises from a purported business dispute amongst the parties, whereby in late
2015 (and subsequently in May 2016, as well as November 2017), Plaintiff Kang claims that she
made various business investments with the Defendants and their alleged principal, Byungki
(James) Koo [as well as his wife, Hyunjong (Tammy) Koo], in which Plaintiff paid money in
exchange for an interest in the business. She further alleges that the Koos did not honor their end
of the bargain and froze her out of the business without compensation.
As a result of this business dispute, Plaintiff Kang commenced two lawsuits with
identical allegations; the instant matter before the Court (see Doc. No. 1 of the NYSCEF Court
Docket List on the instant matter), as well as a separate action bearing Index No. 706798/22 in
Queens County (see Doc. 2 of the NYSCEF Court Docket List on the 2022 matter), which deals
with substantially all of the same parties, as well as factual allegations discussed herein.
As a result of this identical lawsuit, Defendants filed a Motion to Dismiss the 2022
action, which is fully submitted and currently pending a judicial determination (see Doc. No. 13
of the NYSCEF Court Docket list on the 2022 action, as well as Doc. No. 14, 15, 16, 17, 18, and
19).
In this instant matter, the Plaintiffs served overbroad discovery demands, which were
responded to appropriately; our office provided over 32,000 responsive documents to said
requests. Unfortunately, Plaintiff now has an issue with the discovery provided, and has filed
this frivolous motion before the Court, without conferring with opposing counsel in good faith
(in violation of the Court rules regarding said conference), filing a good faith affirmation that is
misleading, compelling discovery production despite our sizeable responsive production, while
providing no responses whatsoever to Defendants’ demands, yet accusing Defendants of failure
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to comply with discovery requests. The Court should see through this ruse and summarily deny
Plaintiff’s motion.
I. Plaintiffs have not complied with the court’s rules regarding meet and confer
prior to initiating motion practice, as Defendants have not heard from them this
calendar year.
Pursuant to 22 NYCRR § 202.7 (a), “there shall be compliance with the procedures
prescribed in the CPLR for the brining of motions. In addition, except as provided in subdivision
(d) of this section, no motion shall be filed with the court unless there have been served and filed
with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to
disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for
the opposing party in a good faith effort to resolve the issues raised by the motion.”
Additionally, pursuant to 22 NYCRR § 202.20-f, “(a) to the maximum extent possible,
discovery disputes should be resolved through informal procedures, such as conferences, as
opposed to motion practice. (b) absent exigent circumstances, prior to contacting the court
regarding a disclosure dispute, counsel must first consult with one another in a good faith attempt
to resolve all disputes about disclosure. Such consultation must take place by an in-person or
telephonic conference.” Moreover, section (c) of the statute explicitly states that ‘the failure to
comply with this rule may result in the denial of a discovery motion…”.
In the matter of Board of Mgrs. of the Residential Section of Galleria Condominium v.
Hong, 2022 NY Slip Op 31139 (Sup. NY 2022), “the court points out that discovery-related
motions….must not only comply with 22 NYCCRR § 202.7, but also § 202.20-f and/or leave of
the Court following a conference regarding the dispute.”
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In the instant matter, Plaintiffs allege that they engaged in good faith negotiations (by
way of their Affirmation of Good Faith) to resolve these discovery issues. In fact, our office has
not heard from Plaintiffs’ counsel for nearly one year, with no communication or outreach this
calendar year. Plaintiffs’ Counsel had not been in contact with counsel for the Defendants for
over ten (10) months before filing the herein motion. In essence, the Plaintiffs have not
contacted the Defendants regarding these discovery issues for the entire calendar year of 2022, in
contravention to the rules outlined in 22 NYCCRR § 202.7, and § 202.20-f.
The instant motion is consequently premature and would be rendered unnecessary if the
Plaintiffs’ counsel were to take the radical step of picking up the phone and calling our office, as
we have resolved all discovery-related issues cooperatively to date. Plaintiffs’ failure to do so
should require immediate dismissal of the herein motion, as it was not filed in good faith, and
requested judicial intervention of issues that had not been discussed between the parties in a
timely manner, prior to the filing of this Motion.
It bears mentioning that this is the second time Plaintiffs have filed a discovery motion
without making an attempt to meet and confer. The stipulation discussed in the moving papers
resolved a motion Plaintiff brought- again after lengthy delays- with no meet-and-confer prior to
filing the motion. See NYSCEF Court Docket list, Doc. No 70, which indicates a Notice of
Motion filing for a discovery-related motion, without the proper good faith affirmation
attachments, as required by the Courts.
Simply put, the Court should admonish Plaintiffs for, once again, resorting to motion
practice as a first step, prior to even contacting counsel to advise them of an alleged discovery
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dispute. This is the second time they have ignored the meet-and-confer requirement, and the
Court should deny the motion on this basis.
II. Even if this motion was properly brough before the court, it is substantively
baseless, as Defendants have complied with their obligations by timely
responding or objecting to all discovery demands, consistent with the executed
discovery stipulation
While the Summons and Compliant was filed (via NYSCEF) on the instant matter on
April 26, 2019, Plaintiffs inexplicably waited almost two (2) years before they served their initial
discovery demands (See Exhibit “A” of Plaintiff’s Motion to Compel).
A perusal of said discovery demands notes that same are overbroad, requesting all
documents pertaining to multiple corporate entities, including but not limited to, Elim Home
Care Agency, LLC, Evergreen Senior Services, Inc., Evergreen Adult Day Care Center, Inc.
Evergreen Senior Day Care Center, Inc., Evergreen Adult Care in Flushing, Inc., Evergreen
J.S.C. Adult Day Care in NY, Inc., Evergreen Flushing New York LLC., Evergreen Homecare
Service of NY, Inc. and SR Homecare of NY, Inc. (See Exhibit “A” of Plaintiff’s Motion to
Compel).
Not only do Plaintiffs seek documents from approximately nine (9) corporate entities, but
said demands requested documents from approximately August 14, 2015, to May 31, 2021,
covering a time period of almost six (6) years. (See Exhibit “A” of Plaintiff’s Motion to
Compel). More specifically, Doc. Request No. 4 of Plaintiff’s Discovery Demands requests all
documentation regarding various wage and hour claims, spanning across all nine (9) corporate
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entities, from the commencement of Plaintiff Kang’s employment tenure (on or about January 1,
2015) to present.
This is Plaintiffs’ second attempt to compel discovery from the Defendants, as they filed
an initial motion seeking the same relief on August 6, 2021 (see Doc. No. 70 of the NYSCEF
Court Docket List on the instant matter), resulting in a stipulation entered into agreeing to
provide Plaintiffs with all requested documents, with limited exception (see Doc. No. 83 of the
NYSCEF Court Docket List on the instant matter).
Following the filing of the stipulation resolving all outstanding discovery issues,
Defendants acquiesced to Plaintiffs’ request and provided more than 32,000 pages of relevant
documentation, for a period of time from January 1, 2015, to present.
It is now somewhat baffling that Plaintiffs are accusing the Defendants of “document
dumping.” When Defendants initially objected to the overbroad demands, Plaintiffs filed their
initial Motion to Compel, which was resolved via stipulation, resulting in the voluminous
production of requested documents. By way of background, Plaintiff Kang’s actions caused the
corporate entities to incur liability in the form of a $900,000 settlement on a wage and hour case,
and Plaintiff asked for copies of all relevant records pertaining to these claims. Said records
were produced by the Defendants, and now Plaintiff complains that there are “too many of them”
(see Exhibit “G” of Plaintiff’s Motion to Compel).
Not only has counsel for the Plaintiffs filed a frivolous motion before this Court, but
Plaintiffs further enhance the frivolity of their argument (and requested relief) by failing to list
how these 32,000 pages of documents are irrelevant to their initial request.
In Exhibit “J” of Plaintiffs’ Motion to Compel, Plaintiffs’ counsel argues that “…you
have evidently supplied no documents whatsoever which purport to be responsive to the vast
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number of the Demands, except for Demand #5”. However, counsel has failed to properly
delineate in what manner the documents provided were not responsive to Plaintiffs’ demands,
nor have Plaintiffs outlined to the Defendants (or this Court for that matter) what documents are
being sought which are substantially different from what they received.
In short, Plaintiffs have failed to advise the Defendants, or this Court (via any
communication made to counsel and annexed hereto as an exhibit), as to how Defendants’
discovery responses were deficient, which would warrant the filing of the instant motion before
the Court.
Following Plaintiffs initial complaint that the documents were voluminous and not
properly labeled, Defendants chose to resolve this aspect of the dispute by providing Plaintiffs
with their desired labels, as Exhibit “I” clearly establishes, whereby counsel for the Defendants
informed them of the document production “breakdown” as follows: “1-20218- Wage Notices,
time and activity reports, and payroll records; 202182-20753-Tax returns Elim; 20754-20796-
payments made to Ms. Kang or for her benefit; 20797-20828-tax returns Evergreen; 20829-
31439-Time sheets; 31440-32054-Spread of hours analysis; 32055-32506-filed documents in the
FLSA case). See Exhibit “I” of Plaintiff’s Motion to Compel.
As Plaintiffs have argued that these documents are not responsive to the requests made
during discovery, it appears that they would rather have the Court sift through these records (via
in camera review) to determine their adequateness, rather than review the records themselves, so
that this Court (and the Defendants) are fully aware as to which specific documents are being
disputed (and more so, what documents have yet to be provided).
As such, Plaintiffs motion compelling discovery production should be denied, as
Defendants have complied with said requests in full.
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III. Plaintiffs accuse Defendants of failure to comply with their discovery
demands, yet have provided no responses to Defendants’ discovery demands.
Pursuant to the Par. 5 of executed discovery stipulation, “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 HIPPA redactions and the exception of privileged, irrelevant, or
otherwise legal objectionable material. (see Doc. No. 83 of the NYSCEF Court Docket List on
the instant matter).
Not only have Plaintiffs wasted this Court’s time with the filing of two discovery related
motions, but they have also attached Defendants own discovery demands as an Exhibit to the
instant motion before the Court (See Exhibit “B” of Plaintiff’s Motion to Compel), yet failed to
provide responses to these demands, which were served on or about June 22, 2021. Plaintiffs
have failed to respond to Defendants’ Discovery Demands for the past fourteen (14) months yet
chose to utilize that time and effort to mischaracterize Defendants own discovery obligations.
Simply put, the Plaintiffs have chosen to sit idle for the past fourteen (14) months,
without providing any responses at all to Defendants discovery demands, nor conferring with
counsel over their own discovery issues, which they were required to do before requesting
judicial intervention in the instant matter.
The records sought by Defendants from Plaintiff are not controversial: Ms. Kang claims
she purchased an interest in certain corporate entities, and Defendants requested proof of any
such payments; Plaintiff has refused to provide them. Indeed, they have provided no response of
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any kind, despite stipulating to produce documents on or before October 31, 2021. They should
not now be heard to complain of the adequacy of the tens of thousands of pages of production
they received from Defendants, in the fact of their categorical noncompliance.
CONCLUSION
Plaintiffs have filed this discovery motion before the Court prematurely, as they: (1)
failed to confer with opposing counsel in good faith (in violation of the applicable NYCRR rules
regarding said conference as Plaintiffs have not initiated contact for the entire calendar year of
2022); (2) filed a good faith affirmation that is grossly misleading (as there was no conference
via phone or in person as required by the NYCRR rules during 2022); and (3) requested
discovery production to be compelled despite our sizeable responsive production.
Additionally, Plaintiffs have yet to provide any responses whatsoever to Defendants’
discovery demands (while same was served over fourteen (14) months ago) yet have the audacity
to accuse Defendants of failure to comply with all discovery requests.
Based on the foregoing, it is Defendants’ contention that they have responded to
Plaintiffs’ Discovery Demands in full, whereby rendering this motion moot. Therefore, the
Court should summarily deny same, and order Plaintiffs to respond to all of Defendants
discovery demands within 30 days of the issuance of this order or be held in contempt for failing
to do same pursuant to Judiciary Law § 753.
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CERTIFICATION
I certify pursuant to Uniform Rules for Trial Courts Section 202.8-b that the font used in
this Memorandum of Law is Times New Roman 12, and there are 2,556 words.
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09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 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., Index No.: 707381/19 Plaintiff, v. SR HOMECARE OF NY, INC., EVERGREEN ADULT DAYCARE 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 MEMORANDUM OF LAW IN OPPOSITION RHA KIM GROSSMAN & MCILWAIN, LLP 29 W 36th St. Suite 402 New York, NY 10018 (718) 321-9797 Attorneys for Defendants and Nominal Defendants On the Brief: Andrew D. Grossman, Esq. Leopold Raic, Esq. 1 1 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 TABLE OF CONTENTS Page TABLE OF AUTHORITIES………………………………………………………. 3 PRELIMINARY STATEMENT…………………………………………………… 4 I. Plaintiffs have not complied with the court’s rules regarding meet and confer prior to initiating motion practice, as Defendants have not heard from them this calendar year..………………………………………………… 5 II. Even if this motion was properly brough before the court, it is substantively baseless, as Defendants have complied with their obligations by timely responding or objecting to all discovery demands, consistent with the executed discovery stipulation …………………….... 7 III. Plaintiffs accuse Defendants of failure to comply with their discovery demands, yet have provided no responses to Defendants’ discovery demands………………………………………………………………… 10 CONCLUSION…………………………………………………………………..…. 11 CERTIFICATION…………………………………………………………………… 12 2 2 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 TABLE OF AUTHORITIES Cases Page Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong, 2022 NY Slip Op 31139 (Sup. NY 2022)………………………………………………5 Statutes 22 NYCRR § 202.20-f………………………………………………………………………….5 22 NYCRR § 202.7 (a)…………………………………………………………………………5 NY Judiciary Law § 753……………………………………………………………………….11 3 3 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 PRELIMINARY STATEMENT This matter arises from a purported business dispute amongst the parties, whereby in late 2015 (and subsequently in May 2016, as well as November 2017), Plaintiff Kang claims that she made various business investments with the Defendants and their alleged principal, Byungki (James) Koo [as well as his wife, Hyunjong (Tammy) Koo], in which Plaintiff paid money in exchange for an interest in the business. She further alleges that the Koos did not honor their end of the bargain and froze her out of the business without compensation. As a result of this business dispute, Plaintiff Kang commenced two lawsuits with identical allegations; the instant matter before the Court (see Doc. No. 1 of the NYSCEF Court Docket List on the instant matter), as well as a separate action bearing Index No. 706798/22 in Queens County (see Doc. 2 of the NYSCEF Court Docket List on the 2022 matter), which deals with substantially all of the same parties, as well as factual allegations discussed herein. As a result of this identical lawsuit, Defendants filed a Motion to Dismiss the 2022 action, which is fully submitted and currently pending a judicial determination (see Doc. No. 13 of the NYSCEF Court Docket list on the 2022 action, as well as Doc. No. 14, 15, 16, 17, 18, and 19). In this instant matter, the Plaintiffs served overbroad discovery demands, which were responded to appropriately; our office provided over 32,000 responsive documents to said requests. Unfortunately, Plaintiff now has an issue with the discovery provided, and has filed this frivolous motion before the Court, without conferring with opposing counsel in good faith (in violation of the Court rules regarding said conference), filing a good faith affirmation that is misleading, compelling discovery production despite our sizeable responsive production, while providing no responses whatsoever to Defendants’ demands, yet accusing Defendants of failure 4 4 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 to comply with discovery requests. The Court should see through this ruse and summarily deny Plaintiff’s motion. I. Plaintiffs have not complied with the court’s rules regarding meet and confer prior to initiating motion practice, as Defendants have not heard from them this calendar year. Pursuant to 22 NYCRR § 202.7 (a), “there shall be compliance with the procedures prescribed in the CPLR for the brining of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” Additionally, pursuant to 22 NYCRR § 202.20-f, “(a) to the maximum extent possible, discovery disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice. (b) absent exigent circumstances, prior to contacting the court regarding a disclosure dispute, counsel must first consult with one another in a good faith attempt to resolve all disputes about disclosure. Such consultation must take place by an in-person or telephonic conference.” Moreover, section (c) of the statute explicitly states that ‘the failure to comply with this rule may result in the denial of a discovery motion…”. In the matter of Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong, 2022 NY Slip Op 31139 (Sup. NY 2022), “the court points out that discovery-related motions….must not only comply with 22 NYCCRR § 202.7, but also § 202.20-f and/or leave of the Court following a conference regarding the dispute.” 5 5 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 In the instant matter, Plaintiffs allege that they engaged in good faith negotiations (by way of their Affirmation of Good Faith) to resolve these discovery issues. In fact, our office has not heard from Plaintiffs’ counsel for nearly one year, with no communication or outreach this calendar year. Plaintiffs’ Counsel had not been in contact with counsel for the Defendants for over ten (10) months before filing the herein motion. In essence, the Plaintiffs have not contacted the Defendants regarding these discovery issues for the entire calendar year of 2022, in contravention to the rules outlined in 22 NYCCRR § 202.7, and § 202.20-f. The instant motion is consequently premature and would be rendered unnecessary if the Plaintiffs’ counsel were to take the radical step of picking up the phone and calling our office, as we have resolved all discovery-related issues cooperatively to date. Plaintiffs’ failure to do so should require immediate dismissal of the herein motion, as it was not filed in good faith, and requested judicial intervention of issues that had not been discussed between the parties in a timely manner, prior to the filing of this Motion. It bears mentioning that this is the second time Plaintiffs have filed a discovery motion without making an attempt to meet and confer. The stipulation discussed in the moving papers resolved a motion Plaintiff brought- again after lengthy delays- with no meet-and-confer prior to filing the motion. See NYSCEF Court Docket list, Doc. No 70, which indicates a Notice of Motion filing for a discovery-related motion, without the proper good faith affirmation attachments, as required by the Courts. Simply put, the Court should admonish Plaintiffs for, once again, resorting to motion practice as a first step, prior to even contacting counsel to advise them of an alleged discovery 6 6 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 dispute. This is the second time they have ignored the meet-and-confer requirement, and the Court should deny the motion on this basis. II. Even if this motion was properly brough before the court, it is substantively baseless, as Defendants have complied with their obligations by timely responding or objecting to all discovery demands, consistent with the executed discovery stipulation While the Summons and Compliant was filed (via NYSCEF) on the instant matter on April 26, 2019, Plaintiffs inexplicably waited almost two (2) years before they served their initial discovery demands (See Exhibit “A” of Plaintiff’s Motion to Compel). A perusal of said discovery demands notes that same are overbroad, requesting all documents pertaining to multiple corporate entities, including but not limited to, Elim Home Care Agency, LLC, Evergreen Senior Services, Inc., Evergreen Adult Day Care Center, Inc. Evergreen Senior Day Care Center, Inc., Evergreen Adult Care in Flushing, Inc., Evergreen J.S.C. Adult Day Care in NY, Inc., Evergreen Flushing New York LLC., Evergreen Homecare Service of NY, Inc. and SR Homecare of NY, Inc. (See Exhibit “A” of Plaintiff’s Motion to Compel). Not only do Plaintiffs seek documents from approximately nine (9) corporate entities, but said demands requested documents from approximately August 14, 2015, to May 31, 2021, covering a time period of almost six (6) years. (See Exhibit “A” of Plaintiff’s Motion to Compel). More specifically, Doc. Request No. 4 of Plaintiff’s Discovery Demands requests all documentation regarding various wage and hour claims, spanning across all nine (9) corporate 7 7 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 entities, from the commencement of Plaintiff Kang’s employment tenure (on or about January 1, 2015) to present. This is Plaintiffs’ second attempt to compel discovery from the Defendants, as they filed an initial motion seeking the same relief on August 6, 2021 (see Doc. No. 70 of the NYSCEF Court Docket List on the instant matter), resulting in a stipulation entered into agreeing to provide Plaintiffs with all requested documents, with limited exception (see Doc. No. 83 of the NYSCEF Court Docket List on the instant matter). Following the filing of the stipulation resolving all outstanding discovery issues, Defendants acquiesced to Plaintiffs’ request and provided more than 32,000 pages of relevant documentation, for a period of time from January 1, 2015, to present. It is now somewhat baffling that Plaintiffs are accusing the Defendants of “document dumping.” When Defendants initially objected to the overbroad demands, Plaintiffs filed their initial Motion to Compel, which was resolved via stipulation, resulting in the voluminous production of requested documents. By way of background, Plaintiff Kang’s actions caused the corporate entities to incur liability in the form of a $900,000 settlement on a wage and hour case, and Plaintiff asked for copies of all relevant records pertaining to these claims. Said records were produced by the Defendants, and now Plaintiff complains that there are “too many of them” (see Exhibit “G” of Plaintiff’s Motion to Compel). Not only has counsel for the Plaintiffs filed a frivolous motion before this Court, but Plaintiffs further enhance the frivolity of their argument (and requested relief) by failing to list how these 32,000 pages of documents are irrelevant to their initial request. In Exhibit “J” of Plaintiffs’ Motion to Compel, Plaintiffs’ counsel argues that “…you have evidently supplied no documents whatsoever which purport to be responsive to the vast 8 8 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 number of the Demands, except for Demand #5”. However, counsel has failed to properly delineate in what manner the documents provided were not responsive to Plaintiffs’ demands, nor have Plaintiffs outlined to the Defendants (or this Court for that matter) what documents are being sought which are substantially different from what they received. In short, Plaintiffs have failed to advise the Defendants, or this Court (via any communication made to counsel and annexed hereto as an exhibit), as to how Defendants’ discovery responses were deficient, which would warrant the filing of the instant motion before the Court. Following Plaintiffs initial complaint that the documents were voluminous and not properly labeled, Defendants chose to resolve this aspect of the dispute by providing Plaintiffs with their desired labels, as Exhibit “I” clearly establishes, whereby counsel for the Defendants informed them of the document production “breakdown” as follows: “1-20218- Wage Notices, time and activity reports, and payroll records; 202182-20753-Tax returns Elim; 20754-20796- payments made to Ms. Kang or for her benefit; 20797-20828-tax returns Evergreen; 20829- 31439-Time sheets; 31440-32054-Spread of hours analysis; 32055-32506-filed documents in the FLSA case). See Exhibit “I” of Plaintiff’s Motion to Compel. As Plaintiffs have argued that these documents are not responsive to the requests made during discovery, it appears that they would rather have the Court sift through these records (via in camera review) to determine their adequateness, rather than review the records themselves, so that this Court (and the Defendants) are fully aware as to which specific documents are being disputed (and more so, what documents have yet to be provided). As such, Plaintiffs motion compelling discovery production should be denied, as Defendants have complied with said requests in full. 9 9 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 III. Plaintiffs accuse Defendants of failure to comply with their discovery demands, yet have provided no responses to Defendants’ discovery demands. Pursuant to the Par. 5 of executed discovery stipulation, “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 HIPPA redactions and the exception of privileged, irrelevant, or otherwise legal objectionable material. (see Doc. No. 83 of the NYSCEF Court Docket List on the instant matter). Not only have Plaintiffs wasted this Court’s time with the filing of two discovery related motions, but they have also attached Defendants own discovery demands as an Exhibit to the instant motion before the Court (See Exhibit “B” of Plaintiff’s Motion to Compel), yet failed to provide responses to these demands, which were served on or about June 22, 2021. Plaintiffs have failed to respond to Defendants’ Discovery Demands for the past fourteen (14) months yet chose to utilize that time and effort to mischaracterize Defendants own discovery obligations. Simply put, the Plaintiffs have chosen to sit idle for the past fourteen (14) months, without providing any responses at all to Defendants discovery demands, nor conferring with counsel over their own discovery issues, which they were required to do before requesting judicial intervention in the instant matter. The records sought by Defendants from Plaintiff are not controversial: Ms. Kang claims she purchased an interest in certain corporate entities, and Defendants requested proof of any such payments; Plaintiff has refused to provide them. Indeed, they have provided no response of 10 10 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 any kind, despite stipulating to produce documents on or before October 31, 2021. They should not now be heard to complain of the adequacy of the tens of thousands of pages of production they received from Defendants, in the fact of their categorical noncompliance. CONCLUSION Plaintiffs have filed this discovery motion before the Court prematurely, as they: (1) failed to confer with opposing counsel in good faith (in violation of the applicable NYCRR rules regarding said conference as Plaintiffs have not initiated contact for the entire calendar year of 2022); (2) filed a good faith affirmation that is grossly misleading (as there was no conference via phone or in person as required by the NYCRR rules during 2022); and (3) requested discovery production to be compelled despite our sizeable responsive production. Additionally, Plaintiffs have yet to provide any responses whatsoever to Defendants’ discovery demands (while same was served over fourteen (14) months ago) yet have the audacity to accuse Defendants of failure to comply with all discovery requests. Based on the foregoing, it is Defendants’ contention that they have responded to Plaintiffs’ Discovery Demands in full, whereby rendering this motion moot. Therefore, the Court should summarily deny same, and order Plaintiffs to respond to all of Defendants discovery demands within 30 days of the issuance of this order or be held in contempt for failing to do same pursuant to Judiciary Law § 753. 11 11 of 12 09/06/2022 11:00 FILED: QUEENS COUNTY CLERK 02/14/2023 11:55 PM AM INDEX NO. 707381/2019 101 NYSCEF DOC. NO. 131 09/06/2022 RECEIVED NYSCEF: 02/14/2023 CERTIFICATION I certify pursuant to Uniform Rules for Trial Courts Section 202.8-b that the font used in this Memorandum of Law is Times New Roman 12, and there are 2,556 words. 12 12 of 12