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FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
___________________________________________
MICHELE F. POSLOSKI,
An individual Plaintiff,
Plaintiff, NOTICE OF MOTION
Index No.: EF2022-1321
UTICA, NY 13501
-vs- RJI No.:
THOMAS POSLOSKI, an individual, and
POZZIE’S AUTO REFINISHING, INC., a
New York Corporation,
Defendants.
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
____________________________________________
WARNING
YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR
IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF
COURT. THE PURPOSE OF THIS HEARING IS TO PUNISH THE
ACCUSED FOR CONTEMPT OF COURT, AND THAT SUCH PUNISHMENT
MAY CONSIST OF FINE OR IMPRISONMENT, OR BOTH, ACCORDING
TO LAW, INCLUDING ATTORNEY’S FEES.
PLEASE TAKE NOTICE, that upon the annexed Affirmation of Clifford C. Eisenhut, Esq.,
the attorney for the Plaintiff herein, sworn to on the 24th day of February 2023, the exhibits
submitted herewith and upon all pleadings and proceedings heretofore filed, the undersigned will
move this Court at a motion term thereof to be held in and for the County of Madison at the County
Courthouse, Wampsville, NY on the 6th day of April, 2023 at 10 o’clock in the forenoon of that day,
or soon thereafter as counsel can be heard for an order:
1. Holding the Defendant, Thomas Posloski, in contempt for his willful violation of
this Court’s Order of January 20, 2023 and punishing the Defendant accordingly;
2. Compelling the Defendant to comply with his Examination Before Trial and/or
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imposing evidentiary sanctions against the Defendants for their willful violation of this Court’s
Order dated January 20, 2023;
3. Directing that no one other than the parties, the parties’ attorneys of record, the
court reporter, the witness being examined be permitted to attend any Examination Before Trial in
this matter;
UTICA, NY 13501
4. An award of costs and counsel fees incurred in prosecuting this application in an
amount that will be shown according to proof; and
5. For all such other and further relief as the Court may deem just and proper.
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
Dated: February 28, 2023 Yours, etc.
________________________________
Clifford C. Eisenhut, Esq.
EISENHUT & EISENHUT
Attorneys for Plaintiff
25 Hopper Street
Utica, NY 13502
(315) 724-7523
TO: Thomas Posloski, Pro Se
5988 Stockbridge Hill Road
Munnsville, NY 13409
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
___________________________________________
MICHELE F. POSLOSKI,
An individual Plaintiff,
Plaintiff, AFFIRMATION OF
CLIFORD C. EISENHUT, ESQ
Index No.: EF2022-1321
-vs- RJI No.:
UTICA, NY 13501
THOMAS POSLOSKI, an individual, and
POZZIE’S AUTO REFINISHING, INC., a
New York Corporation,
Defendants.
____________________________________________
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
STATE OF NEW YORK )
) ss:
COUNTY OF ONEIDA )
I, Clifford C. Eisenhut, Esq., do hereby swear and affirm as follows under penalty of perjury:
1. That I am an attorney duly licensed to practice law in the State of New York.
2. I have been retained by Michele F. Posloski, the Plaintiff herein.
3. I make this Affirmation in support of the Plaintiff’s motion to hold the Defendant,
Thomas Posloski, in contempt for his willful failure to comply with this Court’s Order of January 20,
2023, to compel the Defendant, Thomas Posloski, to appear at and comply with his Examination
Before Trial, or alternatively to impose evidentiary sanctions against the Defendants, and to award
the Plaintiff counsel fees and costs incurred in bringing this application.
4. Attached hereto as Exhibit “A” is a true and correct copy of the Summons and
Complaint herein.
5. Attached hereto as Exhibit “B” is a true and correct copy of the Defendant’s Answer
and Counterclaim herein.
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6. Attached hereto as Exhibit “C” is a true and correct copy of the Plaintiff’s Reply
herein.
7. Attached hereto as Exhibit “D” is a true and correct copy of this Court’s Order of
January 20, 2023 along with a Notice of Entry of Order indicating its service upon Thomas Posloski
on January 23, 2023.
UTICA, NY 13501
8. On February 23, 2023, Thomas Posloski appeared at my office for the purpose of his
Examination Before Trial.
9. A true and correct copy of the transcript of Mr. Posloski’s partial deposition is
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
attached hereto as Exhibit “E”.
THOMAS POSLOSKI’S CONTEMPT
10. A matter of minutes into Mr. Posloski’s Examination Before Trial, he became
enraged, stood up, and began to shout and use profanity.
11. I attempted to explain to Mr. Posloski that if he had certain objections to my questions
he could state those for the record.
12. I explained on the record that if Mr. Posloski was refusing to answer certain questions,
I would bring motion practice to compel his responses and that I would seek an award of counsel fees
for having to resort to that motion practice.
13. I attempted to place on the record the answer to Mr. Posloski’s question concerning
the relevance of my questions about his corporate bank account(s). See Exhibit “E”, p. 11, li. 9-15.
14. In response, Mr. Posloski instructed that I “[t]ake him to Court” and that, “This is
bullshit.” Id. at p. 11, li. 16-19.
15. Mr. Posloski then unilaterally terminated his Examination Before Trial by leaving and
without affording me any further opportunity to question him.
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16. Had Mr. Posloski stopped shouting and cursing at me, I would have explained on the
record that my questions concerning his corporate bank account are relevant because he stated, in a
sworn response to my interrogatories herein, that he had a long-standing course of dealing with the
Plaintiff’s late husband that included payment for certain automotive repair services.
17. The Defendant contended that the automobile at issue in this case is subject ot the
UTICA, NY 13501
same pattern and course of dealing.
18. At a minimum, the Plaintiff is entitled to independently verify the truth of these
statements through examination of the financial records, presumably the Defendants’ corporate bank
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
account records, which would or would not substantiate the Defendant’s claims in this regard.
19. Accordingly, my deposition questions concerning the location of the Defendants’
corporate bank accounts was aimed at identifying potential subpoena targets.
20. The Plaintiff cannot review the Defendants’ history of financial dealings with the
Plaintiff’s late husband without knowing where the Defendants’ corporate bank accounts are located.
21. Mr. Posloski’s conduct in refusing to answer Plaintiff’s deposition questions and
unilateral termination of the Defendant’s deposition constitutes a willful violation of this Court’s
Order of January 20, 2023.
22. The said Order states, in relevant part, that Thomas Posloski shall appear for and
cooperate in his Examination Before Trial at the Law Offices of Eisenhut & Eisenhut, 25 Hopper
Street, Utica, NY 13501 on February 23, 2023 at 1:30 p.m.
23. As the record makes clear, Mr. Posloski willfully failed to comply with this Court’s
said Order.
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24. Mr. Posloski’s conduct has prejudiced the Plaintiff in that the outcome of this
litigation is delayed and the Plaintiff is forced to incur significant costs and counsel fees in bringing
this application.
25. As a result, Mr. Posloski should be held in contempt and punished accordingly so as to
dissuade his similar conduct moving forward.
UTICA, NY 13501
REQUEST TO RESTRICT ATTENDANCE OF EXAMINATIONS BEFORE TRIAL
26. Mr. Posloski brought a woman who identified herself as “Tina Posloski” to his
February 23, 2023 Examination Before Trial.
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
27. My client advises that Tina Posloski is Thomas Posloski’s sister.
28. Tina Posloski actively interfered with Mr. Posloski’s Examination Before Trial,
apparently being under the misapprehension that she was permitted to participate in the process.
29. Based on this misconduct, I respectfully request that the Court direct that no one other
than the parties, the parties’ attorneys of record, the court reporter, the witness being examined be
permitted to attend any Examination Before Trial in this matter.
REQUEST FOR AN ORDER TO COMPEL COMPLIANCE OR TO IMPOSE
EVIDENTIARY SANCTIONS AGAINST THE DEFENDANTS
30. The framework governing discovery enforcement is set forth at CPLR §§ 3124 and
3126.
31. We have already brought a motion under CPLR § 3124 and obtained the Order herein
of January 20, 2023 through that process.
32. As a result, CPLR § 3126 applies, which permits the Court broad discretion to impose
appropriate sanctions against the Defendants, including striking the Defendants’ pleadings.
33. Thomas Posloski has indicated in his sworn interrogatory responses that he is the sole
owner of the Defendant, POZZIE’S AUTO REFINISHING, INC.
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34. Attached hereto as Exhibit “F” is a true and correct copy of the Defendants’ sworn
“Amended Answer to Interrogatories.”
35. Thomas Posloski states in response to Interrogatory No. 1 that, “Thomas Posloski is
the sole owner of all the shares of stock of Pozzie’s Auto Refinishing, Inc.” See Ex. “F”, p. 1 ¶1.
36. As a result, there is no prejudice in striking the pleadings as to both Thomas Posloski
UTICA, NY 13501
and Pozzie’s Auto Refinishing, Inc.
37. Because the Defendants continue in their refusal to comply with the discovery process,
we respectfully request that the Court strike the Defendants’ Answer and Counterclaim to permit the
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
Plaintiff to proceed to judgment on the Defendants’ default.
REQUEST FOR AN AWARD OF COUNSEL FEES COSTS
38. The Defendant’s contemptuous conduct set forth above has caused the Plaintiff to
incur otherwise unnecessary attorneys’ fees and costs in the prosecution of this application.
39. It is impossible to set forth the full extent of my counsel fees in prosecuting this
application at this point because the matter is not concluded.
40. Attached hereto as Exhibit “G” is a true and correct copy of my Retainer Agreement
with Michele Posloski pertaining to this matter.
41. My hourly rate of $325.00 per hour is reasonable in light of my skill and more than
fifteen (15) years of experience in civil litigation in the states of California and New York.
42. My hourly rate is also reasonable in light of the Central New York legal market.
43. I respectfully request an opportunity to submit the entirety of my billing in connection
with this application to the Court at the conclusion of these proceedings so that the Court may then
evaluate the Plaintiff’s request for counsel fees.
44. At the moment, I have expended 1.5 hours in preparing this application.
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45. My client will incur a motion fee of $45.00 in filing this application, and the
minimum fee applicable to the Examination Before Trial that Mr. Posloski aborted is $200.00.
46. Attached hereto as Exhibit “H” is a true and correct copy of the court reporter’s
invoice showing her $200.00 minimum fee applicable to Mr. Posloski’s February 23, 2023
Examination Before Trial.
UTICA, NY 13501
47. My client will be responsible for an additional minimum fee if Mr. Posloski appears
for the continuation of his Examination Before Trial.
48. The Plaintiff respectfully requests an award of attorneys’ fees and costs as will be
EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET
shown according to proof.
WHEREFORE, the Plaintiff respectfully requests an Order:
1. Holding the Defendant, Thomas Posloski, in contempt for his willful violation of this
Court’s Order of January 20, 2023 and punishing the Defendant accordingly;
2. Compelling the Defendant to comply with his Examination Before Trial and/or imposing
evidentiary sanctions against the Defendants for their willful violation of this Court’s Order dated January
20, 2023;
3. Directing that no one other than the parties, the parties’ attorneys of record, the court
reporter, and the witness being examined be permitted to attend any Examination Before Trial in this
matter;
4. Awarding costs and counsel fees incurred in prosecuting this application in an amount that
will be shown according to proof; and
5. For all such other and further relief as the Court may deem just and proper.
Dated: February 27, 2023
______________________________
Clifford C. Eisenhut, Esq.
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EXHIBIT A
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Supreme Court of the State of New York Index No.:
County of : MADISON Date purchased
Plaintiff(s) designated(s)
M ADISON
MICHELE F. POSLOSKI, The basis of the venue is
an individual Plaintiff, Defendant's domicile
Plaintiff,
-against- SUMMONS
THOMAS POSLOSKI, an individual, and Plaintiff reside(s) at
POZZIE'S AUTO REFINISHING, INC., a
New York Corporation, 2503 Midland Road
Defendants. Utica, NY 13501
County of Oneida
To the above named Defendants
You are summoned to serve a notice of appearance, on the Plaintiff's
hereby
c within 20 days after the service of this summons, exclusive of the day of service (or
Attorney(s)
within 30 days after the service is complete if this summons is not personally delivered to you
taken
within the State of New York); and in case of your failure to appear, judgment will be
against you by default for the relief demanded in the notice set forth below:
Dated May 23, 2022 Clifford C. Eisenhut, Esq.
Attorney(s) for Plaintiff
Office and Post Office Address
25 Hopper Street
Utica, New York 13501
Notice: The nature of this action is replevin and tort
The relief sought is,
A judgment of against the Defendants for: replevin of the certain motor vehicle
damages amount of $22,500.00 (twenty-
specified in the annexed Complaint; judgment for in the
attorneys'
two thousand five hundred plus Plaintiff's fees incurred in the prosecution of
dollars)
this action in the amount of at least $2,000.00; for all such other and further relief that the Court
may deem just and proper.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
MICHELE POSLOSKI, an individual,
Plaintiff, VERIFIED COMPLAINT
-vs- Index No.
RENo.
THOMAS POSLOSKI, an individual, and
POZZIE'S AUTO REFINISHING, INC.,
A New York Corporation,
Defendants.
Plaintiff, Michele Posloski, by and through her attorneys Eisenhut & Eisenhut, as and
for her complaint against the Defendants herein, Thomas Posloski and Pozzie's Auto
o
Refinishing, Inc., alleges as follows:
1. Plaintiff, Michele Posloski is a natural person who resides at 2503 Midland Road,
Utica, NY 13501.
2. The Defendant, Thomas Posloski, is a natural person that resides at 5988
Stockbridge Hill Rd., Munnsville, New York 13409 in the County of Madison.
3. The Defendant, Pozzi's Auto Refinishing, Inc., is a New York Corporation with a
principal address of 5563 West Road, Munnsville, New York 13409 in the County of Madison.
4. The Plaintiff is the title owner of a certain 1979 Pontiac TransAm vehicle bearing
the VIN: 2W87K9L185369 (hereinafter, "Vehicle").
5. In or about 2015, the Plaintiff's husband and the Defendants agreed to store the
Defendants'
Vehicle on the property within the County of Madison and State of New York.
6. From approximately 2015 until the present time, the Vehicle has been stored on
Defendants'
the property within the County of Madison and State of New York.
7. The Defendants have maintained possession of the Vehicle fi·om that time to the
present time.
8. In or about August 2019, the Plaintiff and/or the Plaintiff's agent made demand
on the Defendants for the return of the Vehicle to the Plaintiff.
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9. The Defendants have failed and refused to permit the Plaintiff to recover the
Defendants'
Vehicle from the possession.
Defendants'
10. The conduct in this regard has deprived the Plaintiff of possession
and enjoyment of the Vehicle.
11. At all times relevant herein, the Defendants owed a duty to the Plaintiff to take
reasonable measures to protect the Vehicle from harm.
12. Upon information and belief, the Defendants have failed and refused to take such
reasonable measures to protect the Vehicle from harm.
13. Upon Information and belief, the Defendants have disposed of the Vehicle.
14. Upon information and belief, the Defendants have lost the Vehicle.
Defendants'
15. Upon information and belief, as an actual and proximate result of the
aforesaid conduct, the Vehicle has been damaged..
16. Upon information and belief, the Plaintiff has been damaged in the amount of the
replacement value of the Vehicle, to wit: $22,500.00 (Twenty-two thousand five hundred
dollars).
Defendants'
17. The aforesaid conduct is willful and egregious.
Defendants'
18. Ass a result of the willful and egregious conduct, the Plaintiff is
attorneys'
entitled to recover fees incurred in the prosecution of this action.
WHEREFORE, the Plaintiff respectfully requests the following relief:
a. Replevin of the Vehicle;
b. A judgment for damages in the amount of $22,500.00 (Twenty-two thousand five
hundred dollars);
c. A judgment in the amount of the Plaintiff's attorneys fees incurred in the
prosecution of this action in an amount to be shown according to proof; and
d. For all such other and further that the Court may deem just and proper.
2022 Clifford C. Eisenhut, Esq.
May 19,
EISENHUT & EISENHUT
25 Hopper Street
Utica, NY 13501
(315)724-7523
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CLIENT CERTIFICATION
I, Michel Posloski, HEREBY CERTIFY, under penalty of perjury, that I have carefully read and
reviewed the annexed Complaint , and that all information contained in such document is true and accurate
in all respects to the best of my knowledge and understanding.
I FURTHER CERTIF
Preview
FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF MADISON ___________________________________________ MICHELE F. POSLOSKI, An individual Plaintiff, Plaintiff, NOTICE OF MOTION Index No.: EF2022-1321 UTICA, NY 13501 -vs- RJI No.: THOMAS POSLOSKI, an individual, and POZZIE’S AUTO REFINISHING, INC., a New York Corporation, Defendants. EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET ____________________________________________ WARNING YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT. THE PURPOSE OF THIS HEARING IS TO PUNISH THE ACCUSED FOR CONTEMPT OF COURT, AND THAT SUCH PUNISHMENT MAY CONSIST OF FINE OR IMPRISONMENT, OR BOTH, ACCORDING TO LAW, INCLUDING ATTORNEY’S FEES. PLEASE TAKE NOTICE, that upon the annexed Affirmation of Clifford C. Eisenhut, Esq., the attorney for the Plaintiff herein, sworn to on the 24th day of February 2023, the exhibits submitted herewith and upon all pleadings and proceedings heretofore filed, the undersigned will move this Court at a motion term thereof to be held in and for the County of Madison at the County Courthouse, Wampsville, NY on the 6th day of April, 2023 at 10 o’clock in the forenoon of that day, or soon thereafter as counsel can be heard for an order: 1. Holding the Defendant, Thomas Posloski, in contempt for his willful violation of this Court’s Order of January 20, 2023 and punishing the Defendant accordingly; 2. Compelling the Defendant to comply with his Examination Before Trial and/or 1 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 imposing evidentiary sanctions against the Defendants for their willful violation of this Court’s Order dated January 20, 2023; 3. Directing that no one other than the parties, the parties’ attorneys of record, the court reporter, the witness being examined be permitted to attend any Examination Before Trial in this matter; UTICA, NY 13501 4. An award of costs and counsel fees incurred in prosecuting this application in an amount that will be shown according to proof; and 5. For all such other and further relief as the Court may deem just and proper. EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET Dated: February 28, 2023 Yours, etc. ________________________________ Clifford C. Eisenhut, Esq. EISENHUT & EISENHUT Attorneys for Plaintiff 25 Hopper Street Utica, NY 13502 (315) 724-7523 TO: Thomas Posloski, Pro Se 5988 Stockbridge Hill Road Munnsville, NY 13409 2 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF MADISON ___________________________________________ MICHELE F. POSLOSKI, An individual Plaintiff, Plaintiff, AFFIRMATION OF CLIFORD C. EISENHUT, ESQ Index No.: EF2022-1321 -vs- RJI No.: UTICA, NY 13501 THOMAS POSLOSKI, an individual, and POZZIE’S AUTO REFINISHING, INC., a New York Corporation, Defendants. ____________________________________________ EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET STATE OF NEW YORK ) ) ss: COUNTY OF ONEIDA ) I, Clifford C. Eisenhut, Esq., do hereby swear and affirm as follows under penalty of perjury: 1. That I am an attorney duly licensed to practice law in the State of New York. 2. I have been retained by Michele F. Posloski, the Plaintiff herein. 3. I make this Affirmation in support of the Plaintiff’s motion to hold the Defendant, Thomas Posloski, in contempt for his willful failure to comply with this Court’s Order of January 20, 2023, to compel the Defendant, Thomas Posloski, to appear at and comply with his Examination Before Trial, or alternatively to impose evidentiary sanctions against the Defendants, and to award the Plaintiff counsel fees and costs incurred in bringing this application. 4. Attached hereto as Exhibit “A” is a true and correct copy of the Summons and Complaint herein. 5. Attached hereto as Exhibit “B” is a true and correct copy of the Defendant’s Answer and Counterclaim herein. 3 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 6. Attached hereto as Exhibit “C” is a true and correct copy of the Plaintiff’s Reply herein. 7. Attached hereto as Exhibit “D” is a true and correct copy of this Court’s Order of January 20, 2023 along with a Notice of Entry of Order indicating its service upon Thomas Posloski on January 23, 2023. UTICA, NY 13501 8. On February 23, 2023, Thomas Posloski appeared at my office for the purpose of his Examination Before Trial. 9. A true and correct copy of the transcript of Mr. Posloski’s partial deposition is EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET attached hereto as Exhibit “E”. THOMAS POSLOSKI’S CONTEMPT 10. A matter of minutes into Mr. Posloski’s Examination Before Trial, he became enraged, stood up, and began to shout and use profanity. 11. I attempted to explain to Mr. Posloski that if he had certain objections to my questions he could state those for the record. 12. I explained on the record that if Mr. Posloski was refusing to answer certain questions, I would bring motion practice to compel his responses and that I would seek an award of counsel fees for having to resort to that motion practice. 13. I attempted to place on the record the answer to Mr. Posloski’s question concerning the relevance of my questions about his corporate bank account(s). See Exhibit “E”, p. 11, li. 9-15. 14. In response, Mr. Posloski instructed that I “[t]ake him to Court” and that, “This is bullshit.” Id. at p. 11, li. 16-19. 15. Mr. Posloski then unilaterally terminated his Examination Before Trial by leaving and without affording me any further opportunity to question him. 4 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 16. Had Mr. Posloski stopped shouting and cursing at me, I would have explained on the record that my questions concerning his corporate bank account are relevant because he stated, in a sworn response to my interrogatories herein, that he had a long-standing course of dealing with the Plaintiff’s late husband that included payment for certain automotive repair services. 17. The Defendant contended that the automobile at issue in this case is subject ot the UTICA, NY 13501 same pattern and course of dealing. 18. At a minimum, the Plaintiff is entitled to independently verify the truth of these statements through examination of the financial records, presumably the Defendants’ corporate bank EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET account records, which would or would not substantiate the Defendant’s claims in this regard. 19. Accordingly, my deposition questions concerning the location of the Defendants’ corporate bank accounts was aimed at identifying potential subpoena targets. 20. The Plaintiff cannot review the Defendants’ history of financial dealings with the Plaintiff’s late husband without knowing where the Defendants’ corporate bank accounts are located. 21. Mr. Posloski’s conduct in refusing to answer Plaintiff’s deposition questions and unilateral termination of the Defendant’s deposition constitutes a willful violation of this Court’s Order of January 20, 2023. 22. The said Order states, in relevant part, that Thomas Posloski shall appear for and cooperate in his Examination Before Trial at the Law Offices of Eisenhut & Eisenhut, 25 Hopper Street, Utica, NY 13501 on February 23, 2023 at 1:30 p.m. 23. As the record makes clear, Mr. Posloski willfully failed to comply with this Court’s said Order. 5 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 24. Mr. Posloski’s conduct has prejudiced the Plaintiff in that the outcome of this litigation is delayed and the Plaintiff is forced to incur significant costs and counsel fees in bringing this application. 25. As a result, Mr. Posloski should be held in contempt and punished accordingly so as to dissuade his similar conduct moving forward. UTICA, NY 13501 REQUEST TO RESTRICT ATTENDANCE OF EXAMINATIONS BEFORE TRIAL 26. Mr. Posloski brought a woman who identified herself as “Tina Posloski” to his February 23, 2023 Examination Before Trial. EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET 27. My client advises that Tina Posloski is Thomas Posloski’s sister. 28. Tina Posloski actively interfered with Mr. Posloski’s Examination Before Trial, apparently being under the misapprehension that she was permitted to participate in the process. 29. Based on this misconduct, I respectfully request that the Court direct that no one other than the parties, the parties’ attorneys of record, the court reporter, the witness being examined be permitted to attend any Examination Before Trial in this matter. REQUEST FOR AN ORDER TO COMPEL COMPLIANCE OR TO IMPOSE EVIDENTIARY SANCTIONS AGAINST THE DEFENDANTS 30. The framework governing discovery enforcement is set forth at CPLR §§ 3124 and 3126. 31. We have already brought a motion under CPLR § 3124 and obtained the Order herein of January 20, 2023 through that process. 32. As a result, CPLR § 3126 applies, which permits the Court broad discretion to impose appropriate sanctions against the Defendants, including striking the Defendants’ pleadings. 33. Thomas Posloski has indicated in his sworn interrogatory responses that he is the sole owner of the Defendant, POZZIE’S AUTO REFINISHING, INC. 6 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 34. Attached hereto as Exhibit “F” is a true and correct copy of the Defendants’ sworn “Amended Answer to Interrogatories.” 35. Thomas Posloski states in response to Interrogatory No. 1 that, “Thomas Posloski is the sole owner of all the shares of stock of Pozzie’s Auto Refinishing, Inc.” See Ex. “F”, p. 1 ¶1. 36. As a result, there is no prejudice in striking the pleadings as to both Thomas Posloski UTICA, NY 13501 and Pozzie’s Auto Refinishing, Inc. 37. Because the Defendants continue in their refusal to comply with the discovery process, we respectfully request that the Court strike the Defendants’ Answer and Counterclaim to permit the EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET Plaintiff to proceed to judgment on the Defendants’ default. REQUEST FOR AN AWARD OF COUNSEL FEES COSTS 38. The Defendant’s contemptuous conduct set forth above has caused the Plaintiff to incur otherwise unnecessary attorneys’ fees and costs in the prosecution of this application. 39. It is impossible to set forth the full extent of my counsel fees in prosecuting this application at this point because the matter is not concluded. 40. Attached hereto as Exhibit “G” is a true and correct copy of my Retainer Agreement with Michele Posloski pertaining to this matter. 41. My hourly rate of $325.00 per hour is reasonable in light of my skill and more than fifteen (15) years of experience in civil litigation in the states of California and New York. 42. My hourly rate is also reasonable in light of the Central New York legal market. 43. I respectfully request an opportunity to submit the entirety of my billing in connection with this application to the Court at the conclusion of these proceedings so that the Court may then evaluate the Plaintiff’s request for counsel fees. 44. At the moment, I have expended 1.5 hours in preparing this application. 7 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 45. My client will incur a motion fee of $45.00 in filing this application, and the minimum fee applicable to the Examination Before Trial that Mr. Posloski aborted is $200.00. 46. Attached hereto as Exhibit “H” is a true and correct copy of the court reporter’s invoice showing her $200.00 minimum fee applicable to Mr. Posloski’s February 23, 2023 Examination Before Trial. UTICA, NY 13501 47. My client will be responsible for an additional minimum fee if Mr. Posloski appears for the continuation of his Examination Before Trial. 48. The Plaintiff respectfully requests an award of attorneys’ fees and costs as will be EISENHUT & EISENHUT ATTORNEYS AT LAW 25 HOPPER STREET shown according to proof. WHEREFORE, the Plaintiff respectfully requests an Order: 1. Holding the Defendant, Thomas Posloski, in contempt for his willful violation of this Court’s Order of January 20, 2023 and punishing the Defendant accordingly; 2. Compelling the Defendant to comply with his Examination Before Trial and/or imposing evidentiary sanctions against the Defendants for their willful violation of this Court’s Order dated January 20, 2023; 3. Directing that no one other than the parties, the parties’ attorneys of record, the court reporter, and the witness being examined be permitted to attend any Examination Before Trial in this matter; 4. Awarding costs and counsel fees incurred in prosecuting this application in an amount that will be shown according to proof; and 5. For all such other and further relief as the Court may deem just and proper. Dated: February 27, 2023 ______________________________ Clifford C. Eisenhut, Esq. 8 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 EXHIBIT A 9 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 Supreme Court of the State of New York Index No.: County of : MADISON Date purchased Plaintiff(s) designated(s) M ADISON MICHELE F. POSLOSKI, The basis of the venue is an individual Plaintiff, Defendant's domicile Plaintiff, -against- SUMMONS THOMAS POSLOSKI, an individual, and Plaintiff reside(s) at POZZIE'S AUTO REFINISHING, INC., a New York Corporation, 2503 Midland Road Defendants. Utica, NY 13501 County of Oneida To the above named Defendants You are summoned to serve a notice of appearance, on the Plaintiff's hereby c within 20 days after the service of this summons, exclusive of the day of service (or Attorney(s) within 30 days after the service is complete if this summons is not personally delivered to you taken within the State of New York); and in case of your failure to appear, judgment will be against you by default for the relief demanded in the notice set forth below: Dated May 23, 2022 Clifford C. Eisenhut, Esq. Attorney(s) for Plaintiff Office and Post Office Address 25 Hopper Street Utica, New York 13501 Notice: The nature of this action is replevin and tort The relief sought is, A judgment of against the Defendants for: replevin of the certain motor vehicle damages amount of $22,500.00 (twenty- specified in the annexed Complaint; judgment for in the attorneys' two thousand five hundred plus Plaintiff's fees incurred in the prosecution of dollars) this action in the amount of at least $2,000.00; for all such other and further relief that the Court may deem just and proper. 10 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF MADISON MICHELE POSLOSKI, an individual, Plaintiff, VERIFIED COMPLAINT -vs- Index No. RENo. THOMAS POSLOSKI, an individual, and POZZIE'S AUTO REFINISHING, INC., A New York Corporation, Defendants. Plaintiff, Michele Posloski, by and through her attorneys Eisenhut & Eisenhut, as and for her complaint against the Defendants herein, Thomas Posloski and Pozzie's Auto o Refinishing, Inc., alleges as follows: 1. Plaintiff, Michele Posloski is a natural person who resides at 2503 Midland Road, Utica, NY 13501. 2. The Defendant, Thomas Posloski, is a natural person that resides at 5988 Stockbridge Hill Rd., Munnsville, New York 13409 in the County of Madison. 3. The Defendant, Pozzi's Auto Refinishing, Inc., is a New York Corporation with a principal address of 5563 West Road, Munnsville, New York 13409 in the County of Madison. 4. The Plaintiff is the title owner of a certain 1979 Pontiac TransAm vehicle bearing the VIN: 2W87K9L185369 (hereinafter, "Vehicle"). 5. In or about 2015, the Plaintiff's husband and the Defendants agreed to store the Defendants' Vehicle on the property within the County of Madison and State of New York. 6. From approximately 2015 until the present time, the Vehicle has been stored on Defendants' the property within the County of Madison and State of New York. 7. The Defendants have maintained possession of the Vehicle fi·om that time to the present time. 8. In or about August 2019, the Plaintiff and/or the Plaintiff's agent made demand on the Defendants for the return of the Vehicle to the Plaintiff. 11 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 9. The Defendants have failed and refused to permit the Plaintiff to recover the Defendants' Vehicle from the possession. Defendants' 10. The conduct in this regard has deprived the Plaintiff of possession and enjoyment of the Vehicle. 11. At all times relevant herein, the Defendants owed a duty to the Plaintiff to take reasonable measures to protect the Vehicle from harm. 12. Upon information and belief, the Defendants have failed and refused to take such reasonable measures to protect the Vehicle from harm. 13. Upon Information and belief, the Defendants have disposed of the Vehicle. 14. Upon information and belief, the Defendants have lost the Vehicle. Defendants' 15. Upon information and belief, as an actual and proximate result of the aforesaid conduct, the Vehicle has been damaged.. 16. Upon information and belief, the Plaintiff has been damaged in the amount of the replacement value of the Vehicle, to wit: $22,500.00 (Twenty-two thousand five hundred dollars). Defendants' 17. The aforesaid conduct is willful and egregious. Defendants' 18. Ass a result of the willful and egregious conduct, the Plaintiff is attorneys' entitled to recover fees incurred in the prosecution of this action. WHEREFORE, the Plaintiff respectfully requests the following relief: a. Replevin of the Vehicle; b. A judgment for damages in the amount of $22,500.00 (Twenty-two thousand five hundred dollars); c. A judgment in the amount of the Plaintiff's attorneys fees incurred in the prosecution of this action in an amount to be shown according to proof; and d. For all such other and further that the Court may deem just and proper. 2022 Clifford C. Eisenhut, Esq. May 19, EISENHUT & EISENHUT 25 Hopper Street Utica, NY 13501 (315)724-7523 12 of 66 FILED: MADISON COUNTY CLERK 03/01/2023 05:37 AM INDEX NO. EF2022-1321 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/01/2023 CLIENT CERTIFICATION I, Michel Posloski, HEREBY CERTIFY, under penalty of perjury, that I have carefully read and reviewed the annexed Complaint , and that all information contained in such document is true and accurate in all respects to the best of my knowledge and understanding. I FURTHER CERTIF