MEMORANDUM OF LAW IN OPPOSITION February 10, 2020

On January 10, 2017 a Motion-Secondary was filed involving a dispute between Robert Harris, and Abc Corps. 1 - 8, Intimo, Inc., John Does 1 - 10, Moris Zilkha, Nathan Nathan, Prestige Employee Administrators Ii, Inc. A K A Prestige Employee Administrators, Prestige Employee Administrators, Inc. A K A Prestige Employee Administrators, Tommy Nathan, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ROBERT HARRIS, :
: Index No. 650175/2017
Plaintiff, :
: Hon. Nancy Bannon
vs. : Part 42
:
INTIMO, INC., NATHAN NATHAN : Mot. Seq. No. 6
individually , TOMMY NATHAN, individually, :
MORIS ZILKHA, individually, PRESTIGE :
EMPLOYEE ADMINISTRATORS, INC. a/k/a :
PRESTIGE EMPLOYEE ADMINISTRATORS, :
PRESTIGE EMPLOYEE ADMINISTRATORS :
II, INC. a/k/a PRESTIGE EMPLOYEE :
ADMINISTRATORS and JOHN DOES 1-10, :
and ABC CORPS. 1-8, fictitious names for :
persons or entities whose roles and identities :
are unknown, :
:
Defendants. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DEFENDANTS PRESTIGE EMPLOYEE ADMINISTRATORS, INC. AND PRESTIGE
EMPLOYEE ADMINISTRATORS II, INC.’S MEMORANDUM OF LAW IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY

FISHER & PHILLIPS LLP
David B. Lichtenberg, Esq.
Eric T. Baginski, Esq.
430 Mountain Avenue, Suite 303
Murray Hill, New Jersey 07974
Telephone: (908) 516-1050
Fax: (908) 516-1051
Email: dlichtenberg@fisherphillips.com
ebaginski@fisherphillips.com

Attorneys for Defendants
Prestige Employee Administrators, Inc. and
Prestige Employee Administrators II, Inc.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................................................................................... ii

PRELIMINARY STATEMENT ................................................................................................ 1

RELEVANT BACKGROUND .................................................................................................. 2

ARGUMENT ............................................................................................................................. 7

I. THE ADDITIONAL DISCOVERY SOUGHT BY HARRIS IS NOT
MATERIAL AND NECESSARY TO THE PROSECUTION OF THIS ACTION. ..... 7

II. HARRIS FORFEITED HIS RIGHT TO FURTHER DISCOVERY. ................ 9

III. BRIAN LEHMAN AND PAMELA EMERSON SHOULD NOT BE
COMPELLED TO SIT FOR A DEPOSITION BECAUSE HARRIS’S
AFFIRMATION FAILS TO DETAIL ANY GOOD FAITH EFFORT TO
ENGAGE PRESTIGE REGARDING THEIR POTENTIAL DEPOSITIONS. .......... 10

IV. HARRIS HAS NOT MADE A DETAILED SHOWING OF THE
NECESSITY FOR DEPOSING ADDITIONAL PRESTIGE
REPRESENTATIVES. ................................................................................................. 12

CONCLUSION ......................................................................................................................... 14

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TABLE OF AUTHORITIES

Page(s)

Cases

241 Fifth Ave. Hotel, LLC v. GSY Corp.,
973 N.Y.S.2d 129 (1st Dep’t 2013) .........................................................................................11

Allen v. Crowell-Collier Pub. Co.,
21 N.Y.2d 403 (1968) ................................................................................................................7

Bailey v. New York City Transit Auth.,
704 N.Y.S.2d 582 (1st Dep’t 2000) ...........................................................................................9

Cashbamba v. 1056 Bedford LLC,
100 N.Y.S.3d 9 (1st Dep’t 2019) .............................................................................................11

Charest v. K Mart of N.Y. Holdings, Inc.,
897 N.Y.S.2d 60 (1st Dep’t 2010) .............................................................................................8

Colicchio by Colicchio v. City of New York,
581 N.Y.S.2d 36 (1st Dep’t 1992) ...........................................................................................12

Curran v. New York City Transit Auth.,
75 N.Y.S.3d 25 (1st Dep’t 2018) ...............................................................................................7

Defina v. Brooklyn Union Gas Co.,
630 N.Y.S.2d 533 (2d Dep’t 1995) ....................................................................................12, 13

Diako v. Yunga,
48 N.Y.S.3d 403 (1st Dep’t 2017) .............................................................................................7

Editel, New York v. Liberty Studios, Inc.,
557 N.Y.S.2d 21 (1st Dep’t) ......................................................................................................9

Escourse v. City of New York,
812 N.Y.S.2d 478 (1st Dep’t 2006) .........................................................................................10

Joseph v. City of Buffalo,
590 N.Y.S.2d 350 (4th Dep’t 1992),
aff’d, 83 N.Y.2d 141 (1994).....................................................................................................10

Knickerbocker Vill., Inc. v. Lexington Ins. Co.,
112 N.Y.S.3d 506 (1st Dep’t 2019) ...........................................................................................7

Malloy v. Madison Forty-Five Co.,
786 N.Y.S.2d 433 (1st Dep’t 2004) .........................................................................................10

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Markov v. Spectrum Grp. Int’l Inc.,
25 N.Y.S.3d 133 (1st Dep’t 2016) .............................................................................................9

Melcher v. City of New York,
832 N.Y.S.2d 186 (1st Dep’t 2007) .........................................................................................10

Robinson v. Highbridge House Ogden, LLC,
997 N.Y.S.2d 904 (1st Dep’t 2015) ...........................................................................................8

Rodolitz v. Beneficial Nat. Life Ins. Co.,
341 N.Y.S.2d 278 (1st Dep’t 1973) ...........................................................................................9

Smartix Int’l Corp. v. MasterCard Int’l LLC,
934 N.Y.S.2d 382 (1st Dep’t 2011) ...........................................................................................9

STB Investments Corp. v. Sterling & Sterling, Inc.,
35 N.Y.S.3d 1 (1st Dep’t 2016) .................................................................................................8

Summit Rovins & Feldesman v. Fonar Corp.,
643 N.Y.S.2d 343 (1st Dep’t 1996) ...........................................................................................8

Teamsters Local 237, Int’l Bhd. of Teamsters, Welfare Fund v. Trans World Life
Ins. Co. of New York,
449 N.Y.S.2d 728 (1982) ...........................................................................................................8

Statutes

Civil Practice Law and Rules ...........................................................................................................6

CPLR 3101(a) ..................................................................................................................................7

CPLR 3212(f)...................................................................................................................................9

New York City Human Rights Law.........................................................................................3, 6, 8

New York State Human Rights Law .......................................................................................3, 6, 8

N.Y. Comp. Codes R. & Regs. tit. 22, § 202.7 ........................................................................10, 11

N.Y. Comp. Codes R. & Regs. tit. 22, § 202.7(c) .........................................................................11

Other Authorities

Siegel, New York Practice, § 344 ....................................................................................................7

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Defendants Prestige Employee Administrators, Inc. and Prestige Employee Administrators

II, Inc. (collectively “Prestige”) hereby submit this opposition to the motion to compel filed by

Plaintiff Robert Harris (“Harris”).

PRELIMINARY STATEMENT

Harris’s motion to compel is nothing more than a fishing expedition into irrelevant

information that will not save his failed case against Prestige. Discovery already exchanged thus

far indisputably demonstrates that Prestige had no involvement in Harris’s alleged agreement with

Nathan Nathan. Discovery further shows that Intimo, Inc. (“Intimo”) bore responsibility for

determining and correctly calculating Harris’s wages, along with providing the funds that were

ultimately due to Harris. Prestige simply made the payments as confirmed and directed by Intimo.

Harris also testified that Prestige, which provides limited and contractually defined administrative

services, such as processing Intimo’s payroll, did not make any mistake with respect to Harris’s

pay. In spite of those uncontroverted facts that absolve Prestige of any liability, Harris insists on

unnecessarily protracting his lawsuit against Prestige by seeking inconsequential information, such

as the addresses and social security numbers of each person that answered Harris’s interrogatories,

Harris’s unemployment compensation records, Prestige’s business structure, and comparator

information, even though Harris made clear in his opposition to Prestige’s motion for summary

judgment that he was dropping his discrimination claims against Prestige.

Prestige responded to Harris’s combined total of 122 interrogatories and 65 document

requests. Prestige provided Harris with relevant and responsive information, regardless of the

obvious undue burden imposed upon Prestige by Harris. Prestige thereafter responded to any

purported “deficiencies” with its responses in a 9 page letter to Harris. At this point, there are no

“deficiencies.” Any other information that Harris seeks is not material and necessary to the

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prosecution of his unsuccessful case against Prestige. Furthermore, Harris technically waived his

right to further discovery by filing his note of issue and certificate of readiness shortly after filing

his motion to compel. Harris also did not specify the discovery that he claims to desperately need

in opposition to Prestige’s motion for summary judgment. In his affirmation in support of his

motion to compel, Harris also did not detail any good faith effort to discuss the depositions of

Brian Lehman and Pamela Emerson. At any rate, Harris did not sufficiently explain what relevant

information either Mr. Lehman or Ms. Emerson have at this eleventh hour. For all of those reasons,

Harris’s motion to compel against Prestige must be denied.

RELEVANT BACKGROUND

Harris was an employee of Intimo from January 2010 to about February 2016.

(Lichtenberg Aff., Exs. A & B.) On or about December 30, 2009, Harris entered into an alleged

agreement with Intimo’s President, Nathan Nathan, regarding the payment of certain commissions

and wages. Prestige was not a party to that alleged agreement. (Id., Ex. C.) Months after Harris

and Nathan Nathan came to their alleged understanding, Intimo entered into a separate and

unrelated agreement with Prestige to provide limited and defined administrative services to Intimo,

such as payroll. (Id., Ex. D.) Pursuant to Prestige and Intimo’s agreement, Intimo was responsible

for determining the amounts owed to Harris, for confirming the amounts owed to Harris, and for

providing the funds to be paid to Harris. Prestige simply made the payments as confirmed and

approved by Intimo. (Id., Ex. D at Prestige 000000146, 000148-000149, 000153.) Prestige’s

agreement with Intimo eventually ended in 2012, in or around March of that year. (Id., Exs. B &

Ex. E at 232.) Harris thereafter remained employed by Intimo – and, for a time, an Intimo offshoot

– until February 2016, when he was terminated by Nathan Nathan. (Id., Ex. E at 50-54, 200-05 &

Ex. F at 139-41.) Beginning around the fall of 2015, Harris alleges that he was discriminated

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against on the basis of his age. (Id., Ex. E at 164-68.) By that time, Prestige had no relationship

with him. (Id., Ex. B and Ex. E at 232.)

Prestige obviously had limited involvement in the facts of the case, having some form of a

relationship with Harris for a period roughly spanning only two years. Prestige had no involvement

in the agreement between Harris and Nathan Nathan regarding Harris’s commissions and other

wages. The responsibility of ensuring proper payments to Harris rested with Intimo. As well,

Prestige had no involvement in the alleged discrimination of Harris beginning in the fall of 2015,

since the agreement between Intimo and Prestige terminated in 2012. Furthermore, Prestige had

no involvement in the daily operations of Intimo, Harris performed services exclusively for Intimo,

and Harris reported only to Intimo personnel. (Id., Ex. E at 20-21, 29-30, 35-36, 48, 50-51, 55,

58-59, 86, 231 & Ex. F at 20-22, 138-39.)

Despite Prestige’s limited involvement in the facts of the case, Harris contends that Prestige

failed to pay him commissions and “shorted” his wages in violation of the New York Labor

(“NYLL”), discriminated against him on the basis of his age in violation of the New York State

Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”),

breached a contract, and was unjustly enriched, among other claims. (Id., Exs G & H.) Harris’s

own deposition testimony, however, refutes all of his claims against Prestige.

Harris’s deposition took place on November 20, 2019. As testified to by Harris, the alleged

December 30th agreement was only between him and Nathan Nathan, not anyone from Prestige.

(Id., Ex. E at 79 (“It was monies that Nathan and I agreed to and this was a Bob and Nathan

conversation.”).) Harris testified to that repeatedly. (Id., Ex. E at 76-78, 80-84, 142-43.) Harris

also testified that he did not speak with anyone at Prestige about his commissions. (Id., Ex. E at

233 (“There’s nobody at Prestige that I spoke to about commissions, so I would have no evidence

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that they specifically deprived me of it.”).) Harris further testified that he did not speak with

anyone at Prestige about his alleged “shorted” wages. (Id., Ex. E at 234 (“Nothing specifically

with Prestige. Again, my conversations were with Nathan.”).) Aside from his alleged unpaid

wages, which he specifically remembered not discussing with anyone at Prestige, Harris also

testified that he could not recall any other conversations with anyone at Prestige, reflecting his

limited relationship with Prestige. (Id., Ex. E at 231 (“I don’t have a specific recollection of any

conversation with anybody at Prestige.”).) As well, when asked, in his own words, why he was

suing Prestige, Harris could not clearly explain why he was suing Prestige, much less articulate

Prestige’s connection to the December 30th agreement. (Id., Ex. E at 235 (“They are a -- they were

a co-employer, and, you know, at this point understanding that it’s still to be determined legally

what, if any, you know, relationship they have to the agreement that I had with Nathan . . . .”).)

Moreover, Harris testified that Prestige did not fail to pay any monies relating to that alleged

agreement. In his own words, Harris testified that there was no “payroll error.” (Id., Ex. E at 79

(“I didn’t characterize it as a mistake as in it was a payroll error.”).) Harris further testified that

he did not speak with anyone at Prestige about alleged age discrimination, confirming that

Prestige’s relationship with Intimo ended in 2012 – approximately 3 years before the alleged

discriminatory conduct occurred. (Id., Ex. E at 232.)1

In spite of Harris’s testimony completely absolving Prestige of any potential liability, on

December 5, 2019, Harris sent Prestige a letter insisting that Prestige address several supposed

“deficiencies” with its responses to Harris’s interrogatories and document requests. (Meyers Aff.,

Ex. K.) Harris directed a combined total of 122 interrogatories to Prestige (61 to each Prestige

entity). (Id., Exs. C & D.) Harris also directed a total of 65 document requests to Prestige. (Id.,

1
Although Harris asserts claims against both Prestige entities, at his deposition, Harris also could not articulate why
he named both Prestige entities in this case or any difference between them. (Lichtenberg Aff., Ex. E at 229.)

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Ex. E.) Prestige responded to all of them and made a document production, which included the

agreement between Intimo and Prestige. (Id., Exs. F, G, H; Lichtenberg Aff., Ex. D.) In the

December 5th letter, Harris requested that Prestige address issues with approximately 34 discovery

requests “no later than 20 days of the date of this letter.” (Meyers Aff., Ex. K.) Although Prestige

informed Harris that Prestige would respond to the letter after the New Year, Harris went ahead

and filed his motion to compel anyway, on December 30, 2019. (Lichtenberg Aff., Ex. I.)

In the motion, now pending before this Court, Harris seeks to

compel the Prestige Defendants to provide documents and information concerning
Plaintiff, emails, Defendants’ employment law compliance documents, lawsuits &
internal complaints, the relationship between defendants, ownership and control of
defendants, insurance agreements, and records regarding the financial condition of
defendants (responsive to Plaintiff’s Document Request Nos. 1, 3-9, 13-25, 30-31,
33-34, 46-50, 51-57, 69-64; and responsive to Plaintiff’s Interrogatories nos. 1-6,
13-15, 20-21, 28, 40-41, 42-53, 55-59, and 61).

(Not. of Mot. at 2.) Harris also seeks to compel two additional corporate witnesses to sitfor

depositions on behalf of Prestige: Brian Lehmann and Pamela Emerson. (Id.) Harris’s counsel’s

affirmation in support of the motion, however, does not detail any good faith efforts to engage

Prestige’s counsel to produce those two individuals for a deposition. (Meyers Aff. ¶ 14.)

Shortly after filing the motion to compel, on December 31, 2019, Harris filed a note of

issue and certificate of readiness. (Lichtenberg Aff., Ex. J.) The Court issued a decision on

January 14, 2020, in which the Court denied Harris’s prior motion to extend to the note of issue

deadline, finding the motion moot. (Id., Ex. K.) As the Court explained in the decision, “A Note

of Issue may not be filed while any discovery is outstanding.” (Id., Ex. K at 1.) The Court also

determined that “there were no unusual or unanticipated circumstances here to warrant any further

post-note discovery.” (Id.)2

2
Although, as a courtesy, Prestige’s counsel later consented to Harris’s counsel withdrawing the note of issue, it is
Prestige’s position that no further discovery will help Harris save his case.
(Lichtenberg Aff., Ex. L.)

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Even though Harris filed the note of issue and certificate of readiness, on January 6, 2020,

Prestige served Harris with a 9 page letter responding to all of the purported “deficiencies” raised

by Harris. (Id., Ex. M.) In large part, Prestige maintained its objections, stood by its responses,

and explained why many of the interrogatories and document requests sought irrelevant

information. Prestige also provided supplemental information, including a supplemental

production containing Prestige’s insurance information. (Id.)

Thereafter, Prestige filed its motion for summary judgment on January 17, 2020. (Id. at ¶

15.) Notably, in opposition to Prestige’s motion for summary judgment, Harris stated that he

“[did] not oppose [Prestige’s] request for dismissal of his claims against Prestige for age

discrimination and retaliation under the [NYCHRL] and [NYSHRL].” (Id., Ex. N at 6 n.3.)

Moreover, Harris also attempted to avoid entry of summary judgment due to allegedly outstanding

discovery. Yet Harris did not identify any discovery he needed to oppose Prestige’s motion for

summary judgment or that would warrant postponing the entry of summary judgment in Prestige’s

favor. (Id., Ex. N at 10.) Harris did not append his own affidavit to his opposition, and his

counsel’s affirmation did not provide any basis for denying or delaying summary judgment, as

required by the Civil Practice Law and Rules. (Id. at ¶ 17, Ex. O.)

On January 19, 2020, the Court denied Harris’s prior motion to compel against the Intimo

Defendants. The Court “ORDERED that the plaintiff’s motion to compel discovery (MOT SEQ

003), to the extent not resolved pursuant to the parties’ stipulation dated November 29, 2019, is

denied without prejudice . . . .” (Id., Ex. P at 1.)

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ARGUMENT

I. THE ADDITIONAL DISCOVERY SOUGHT BY HARRIS IS NOT MATERIAL
AND NECESSARY TO THE PROSECUTION OF THIS ACTION.

Pursuant to CPLR 3101(a), “[t]here shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action . . . .” “The courts do undoubtedly possess a

wide discretion to decide whether information sought is ‘material and necessary to the prosecution

or defense of an action but that discretion is not unlimited.” Allen v. Crowell-Collier Pub. Co., 21

N.Y.2d 403, 406 (1968) (emphasis added). The words, ‘material and necessary’, are . . . to be

interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy

which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.”

Id. “The test is one of usefulness and reason.” Id.; Siegel, New York Practice, § 344 (5th Ed)

(explaining that Allen “fused the dual requirements of ‘material and necessary’ into the single word

‘relevant’” and that “[a]ll disputes of basic disclosability can . . . be resolved under the CPLR

merely by asking whether what is sought is relevant.”).

First Department decisions denying discovery have confirmed that the “material and

necessary” standard is one of relevance. See Knickerbocker Vill., Inc. v. Lexington Ins. Co., 112

N.Y.S.3d 506 (1st Dep’t 2019) (“The court properly denied plaintiff’s request to compel disclosure

of information about defendants’ handling of its other insureds’ losses resulting from Superstorm

Sandy. The requested discovery is not material and necessary to the prosecution of the claims in

this action.”); Curran v. New York City Transit Auth., 75 N.Y.S.3d 25, 26 (1st Dep’t 2018)

(“Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are

not relevant to whether the bus on which plaintiff fell was defectively designed.”); Diako v. Yunga,

48 N.Y.S.3d 403 (1st Dep’t 2017) (“Further, the hospital records defendants seek are not relevant,

since plaintiff averred that he did not receive any medical care, treatment, or diagnostic testing at

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the hospital before his accident for any injuries he sustained to his body in the accident.”); STB

Investments Corp. v. Sterling & Sterling, Inc., 35 N.Y.S.3d 1, 2 (1st Dep’t 2016) (“The motion

court correctly found that plaintiffs’ communications with third-party insurance brokers (about

topics other than demolition insurance) are not ‘material and necessary’ in the defense of this

action . . . .”); Robinson v. Highbridge House Ogden, LLC, 997 N.Y.S.2d 904 (1st Dep’t 2015)

(“. . . [P]laintiff seeks to recover for injuries allegedly sustained on a stairwell in defendants’

apartment complex as a result of a wet, transitory condition consisting of urine. To the extent that

plaintiff seeks records for any other location or type of condition or for a period exceeding one

year, the request is not ‘material and necessary in the prosecution . . .of an action.’”); Summit

Rovins & Feldesman v. Fonar Corp., 643 N.Y.S.2d 343 (1st Dep’t 1996) (“The IAS Court properly

rejected defendant’s document demands since information concerning plaintiff’s billings to other

clients is not material and necessary to the defense of the action.”).

Here, Harris has failed to explain how the additional information sought by him is relevant

to his case. Harris no longer needs information from Prestige to support his age discrimination

claims under the NYCHRL and NYSHRL. In addition, Harris’s own testimony, coupled with

discovery already exchanged between the parties, demonstrates that Prestige has no liability under

the NYLL or any other causes of action stemming from the December 30th agreement entered into

between him and Nathan Nathan. A close inspection of Prestige’s letter response to Harris shows

that Harris is simply engaging in an improper fishing expedition. See Charest v. K Mart of N.Y.

Holdings, Inc., 897 N.Y.S.2d 60, 62 (1st Dep’t 2010) (“Plaintiff’s argument that the documents

show a complex relationship warranting further disclosure was properly rejected by the motion

court as a ‘fishing expedition.’”); Teamsters Local 237, Int’l Bhd. of Teamsters, Welfare Fund v.

Trans World Life Ins. Co. of New York, 449 N.Y.S.2d 728, 729 (1982) (“The subpoenae duces

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tecum . . . seek an improper wholesale fishing expedition of the files and records of the three non-

party witnesses. This shotgun approach to disclosure is improper, overly broad and lacking in

required specificity.”); Rodolitz v. Beneficial Nat. Life Ins. Co., 341 N.Y.S.2d 278, 279 (1st Dep’t

1973) (“We cannot condone fishing expeditions into thousands of irrelevant files . . . in disregard

of relevancy, materiality and necessity, and the similarity of risks.”).3

Prestige incorporates, by reference, its responses contained in its January 6th letter to Harris

for purposes of opposing Harris’s instant motion. (Lichtenberg Aff., Ex. M.) Most, if not all, of

the information that Harris seeks is irrelevant and will not resuscitate his case against Prestige.

II. HARRIS FORFEITED HIS RIGHT TO FURTHER DISCOVERY.

In his opposition to Prestige’s motion for summary judgment, Harris invoked CPLR

3212(f), but failed to provide an affidavit or an explanation in an affirmation identifying any

undisclosed documents or information needed by him to deny or delay the entry of summary

judgment. By failing to identify any relevant, undisclosed discovery, Harris allowed the motion

to move forward for a decision and effectively rendered the instant motion moot. See Bailey v.

New York City Transit Auth., 704 N.Y.S.2d 582 (1st Dep’t 2000) (“A grant of summary judgment

cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to

suggest that discovery may lead to relevant evidence.”); see also Markov v. Spectrum Grp. Int’l

Inc., 25 N.Y.S.3d 133, 134 (1st Dep’t 2016) (holding that the invocation of CPLR 3212(f) cannot

be used to “embark upon a ‘fishing expedition’ to explore the possibility of fashioning a viable

cause of action . . . .”); Smartix Int’l Corp. v. MasterCard Int’l LLC, 934 N.Y.S.2d 382 (1st Dep’t

3
It also should be noted that Harris’s 122 combined interrogatories and 65 document requests are overbroad and
unduly burdensome. Editel, New York v. Liberty Studios, Inc., 557 N.Y.S.2d 21 (1st Dep’t 1990) (“Counterclaim
defendant’s notice of discovery and inspection which contained 48 numbered documents with numerous subparts, and
set of 107 interrogatories, also containing numerous subparts, was overbroad and unduly burdensome . . . .”).

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2011) (“Plaintiff’s mere hope that discovery will uncover evidence needed to defeat summary

judgment is insufficient to deny the motion.”).

Additionally, Harris also apparently waived his right to further disclosure by filing the note

of issue. See Melcher v. City of New York, 832 N.Y.S.2d 186, 187 (1st Dep’t 2007) (“Plaintiff,

however, waived her right to further disclosure when she filed her note of issue and certificate of

readiness . . . .”); Escourse v. City of New York, 812 N.Y.S.2d 478, 478 (1st Dep’t 2006)

(“Furthermore, by filing a note of issue stating that disclosure was complete, plaintiffs waived any

defects in defendants’ response . . . .”); Malloy v. Madison Forty-Five Co., 786 N.Y.S.2d 433, 436

(1st Dep’t 2004) (“Although plaintiff might have been able to establish such supervision had he

taken HRH’s deposition, he waived his right thereto by filing a note of issue . . . .”); Joseph v. City

of Buffalo, 590 N.Y.S.2d 350, 352 (4th Dep’t 1992), aff’d, 83 N.Y.2d 141 (1994) (“It is settled law

that, upon the filing of a note of issue and statement of readiness, a party is foreclosed from further

discovery, absent a demonstration of special, unusual or extraordinary circumstances.”). As the

Court noted in its decision denying Harris’s motion to extend the note of issue deadline, “there

were no unusual or unanticipated circumstances here to warrant any further post-note discovery.”

(Lichtenberg Aff., Ex. K.) That still remains true as it relates to Prestige.

III. BRIAN LEHMAN AND PAMELA EMERSON SHOULD NOT BE COMPELLED
TO SIT FOR A DEPOSITION BECAUSE HARRIS’S AFFIRMATION FAILS TO
DETAIL ANY GOOD FAITH EFFORT TO ENGAGE PRESTIGE REGARDING
THEIR POTENTIAL DEPOSITIONS.

“. . . [N]o 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.” N.Y. Comp. Codes R. &

Regs. tit. 22, § 202.7(a). “The affirmation of the good faith effort to resolve the issues raised by

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the motion shall indicate the time, place and nature of the consultation and the issues discussed

and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing

parties was held.” § 202.7(c).

Where an affirmation of good faith fails to comply with the requirements of § 202.7 or fails

to identify the discovery sought, the motion relying on the defective affirmation must be denied

completely or in part. See Cashbamba v. 1056 Bedford LLC, 100 N.Y.S.3d 9, 10 (1st Dep’t 2019)

(denying branch of motion requesting to take IME where affirmations failed to “include the time,

place, and nature of the consultations” and letters “relate[d] to only one of the items sought . . .

and d[id] not reference any discussions between counsel”); 241 Fifth Ave. Hotel, LLC v. GSY

Corp., 973 N.Y.S.2d 129, 130 (1st Dep’t 2013) (denying motion where letter purporting to reflect

“good faith efforts to proceed with disclosure” failed to show that “GSY’s counsel actually

conferred with Shavolian’s lawyer in a good faith attempt to resolve the dispute”).

Harris’s affirmation is totally deficient under § 202.7 standards. All Harris’s counsel writes

with respect to Prestige is as follows:

Plaintiff has written to the Prestige Defendants’ counsel in an attempt to resolve the
discovery issues as to them, raised herein. A true and correct copy of that letter,
dated December 5, 2019, is attached hereto as Exhibit K. Nonetheless, Plaintiff has
not received the requested discovery from the Prestige Defendants.

(Meyers Aff. ¶ 14, Ex. K.) The sentences above do not reference any efforts to discuss the

depositions of Mr. Lehmann and Ms. Emerson with Prestige’s counsel. In addition, contrary to

Harris’s counsel’s representation, the referenced letter makes no mention of any request to depose

Mr. Lehmann or Ms. Emerson. The affirmation and letter also do not specify good cause as for

why no conferral with Prestige regarding their depositions took place.

Case Info

Judge

Nancy M. Bannon Track Judge’s New Case

Case No.

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Document Filed Date

February 10, 2020

Case Filing Date

January 10, 2017

County

Parties

ABC Corps. 1 - 8 Defendant
BAGINSKI, ERIC TADEUSZ Attorney for the Defendants
Intimo, Inc. Defendant
John Does 1 - 10 Defendant
LICHTENBERG, DAVID B. Attorney for the Defendant
LICHTENBERG, DAVID B. Attorney for the Defendants
MARCUS, SETH L Attorney for the Defendant
MARCUS, SETH L Attorney for the Defendants
MEYERS, JONATHAN Attorney for the Plaintiff
Moris Zilkha Defendant
Nathan Nathan Defendant
Prestige Employee Administrators II, Inc. a/k/a Prestige Employee Administrators Defendant
Prestige Employee Administrators, Inc. a/k/a Prestige Employee Administrators Defendant
Robert Harris Plaintiff
Tommy Nathan Defendant
JONATHAN MEYER Attorneys for Plaintiffs
Jessica Meyers Attorneys for Plaintiffs
ERIC TANT Attorneys for Defendants

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Motion-Secondary: Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1 - 8

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Case Info

Parties