Preview
(FILED:
NASSAU_COUNTY
CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. RECEIVED NYSCEF: 08/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU: COMMERCIAL DIVISION: PART 7
Hon. Sharon M.J. Gianelli
xxxxxx xxxxxx
Plaintiff(s)/Petitioner(s), Index No: 607197/2022
-against- Preliminary Conference
Stipulation and Order
xxxxxxx xxxxx, et al.
Please pote the following guidelines:
Defendant(s)/Respondentts).
End date for fact discovery: RJI date + 360 days
End date for all discovery: RJI date + 390 days
rotpate: 9/2/22 Note of Issue date: End of ail discovery + 60 days.
Dispositive motions filed by: Note of Issue daie + 60 days
TODAY’S DATE:
8/7/23 In the event these timeframes have elapsed at the time of
the PC, please substitute RII date with today’s date.
PART I: APPEARANCES
Please include your name, your firm's name, address, and telephone number; your direct telephone number
email address, and the party you represent. Attach up to one (1) additional page for appearances, if necessary.
Counsel for Plaintiff(s}/Petitioner(s) Counsel for Defendant(s}/Respondent(s)
Ruskin Moscou Faltischek, P.C. Kasowitz Benson Torres LLP
Daniel E. Shapiro, Esq. David E. Ross, Esq.
1425 RXR Plaza, East Tower 15th Fl 1833 Broadway
Uniondale, NY 11556 New York, N¥ 10019
516-663-6600 212-506-1700
dshapiro@rmipe.com “dross@kasowitz.com
Counsel for Defendant(s)/Respondent(s) Counsel for Defendant(s)/Respondent(s)
Ruskin Moscou Faltischek, PC. Kasowiiz Benson Torres LLP
veneer
“Kassandra Polanco, Esq. Michael C. Pecorini, Esa.
ae a ee
1425 RXR Plaza, East Tower 18th Fi “4633 Broadway
Uniondale, NY 11556 New York, NY 10019
546-663-6800 242-506-1 700
kpolanco@rmfpc.com mpecorini@kasowitz.com
lef 12
(FILED:
NASSAU_COUNTY
CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Preliminary Conference Order- Commercial Division: Part 7, Sharon MJ. Gianelli, d.S.C.
PART Hi: NATURE OF THE CASE
Please include a brief summary of the case. Attach a maximum of two (2) additional pages, if necessary.
BRIEF SUMMARY:
Please see the attached addendum.
AMOUNT DEMANDED:
4,760,000 plus interest, costs, and fees
Claim(s): $_
Cross Claim(s): $ ace
2.200.000 pits
Counter Claim(s): $
DEFENSE(S) TO CLAIMS:
Please see the attached addendum.
—
Le
—
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INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Preliminary Conference Order- Commercial Division: Part 7, Sharon M.J. Gianelli, JSC.
PART Ii: CONFIDENTIALITY
The Court recognizes that most cases in the Commercial Division involve facts which are highly sensitive. In such
cases, in order to proceed to proper discovery, the Court may order the parties to enter into a Confidentiality
Agreement, which the Court wii! “So Order”. The parties are referred to the Model Confidentiality Agreement
found at https://www. wychar.org/pdf/report/ModelContidentiality.pdf. If the parties need to change the Model
Confidentiality Agree se parties are directed to submit a signed Confidentiality Agreement with the changes
and a RED LINE copy for the Court to review.
Please indicate:
The Parties HAVE or HAVE NOT entered into a Confidentiality Agreement.
The Parties WILL or [2] WILL NOT enter into a Confidentiality Agreement.
if the Parties plan to enter into a Confidentiality Agreement, please indicate when: __ ——
The Court [7] HAS or HAS NOT so ordered the Confidentiality Agreement.
If so, please indicate when: ———
PART IV: DISCOVERY PROVISIONS
Section 202.70 Rules of the Commercial Di on of the Supreme Court
Rule 8(a). Consultation prior to Preliminary and Compliance Conferences
Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) resohition of the case,
in whole or in part; (i) discovery and any other topics to be discussed at the conference, including electronic
discovery, as set forth in Rule 11-c, and the timing and scope of expert disclosure under Rule 13(c); (iii) the use of
alternate dispute resolution to resolve all or some issues in the {itigation; and (iv) any volumtary and informal
exchange of information that the parties agree would help aid early settlement of the case. Counsel shall make a
good faith effort to reach agreement on these matters in advance of the conference.
Discovery shall proceed pursuant to the Commercial Division Rules found at:
itp: /wwe.nycourts.gov/rules/trialcourts/202.shtml#70
PLEASE NOTE THAT MOTION PRACTICE DOES NOT STAY DISCOVERY ABSENT A
COURT ORDER.
A. Bill of Particulars
NIA
1. Demand for a Bill of Particulars shall be served by all parties on or before
2. Responses to Demands for a Bill of Particulars shall be served by all parties on or before
N/A
B. Document Production
All documents produced by any and all parties mast be Bates stamped.
4, Initial demands for discovery and inspection shall be served by all parties on or before
February 9, 2023
2. Responses to demands for discovery and inspection shall be served by all parties on or before
September 18, 2023.
en . Note: The parties have already served their responses and objections to each other's
document requests. Defendants intend to renew their Rule 14 request to compel
Page 3 of 8
Plaintiff io produce documents he has otherwise objected to if he does not amend his
responses and produce relevant documents by September 16, 2023.
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= INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Preliminary Confere: Order - Commere jsion: Part 7, Sharon M.J. Gianelli, J
€, Interrogatories
i, Interrogatories shall be served hy all parties on or before Feb uary 9, 2023
2. Answers tu Interrogatories shall be served by all parties on or before ugust 18, 2023
Note: The parties have alread served th: re: es and adjections {> each other's
rogator ar ad ta renew their Rude 14 request fo mpet Pi inti t
od hi ry hs pO see if he has not ady dane so by August 18, 2023.
D.D epositions
Attach one (1) additional page, neces?
Plaintiff's deposition shall be held on er before Seoteete RON
20y¢ 323
First named Defendant's deposition shall be held on or before
Second named Defendant’s deposition shall be held on or before October 31, 2023
Third named Defendant's deposition shall be held on or before October 34 2023
All Depasitions must be completed by Naver: 30, 2023
E. Other Disclosure
Inchide ar Attach nm
se-specific isgees yaddit al page, if necessary.
The parties reserve the right io serve the following, as necessar
Requests for Admission
Ad tonal | Interrogatories and Document Requests, including contention n interrogatories
a
Additional Third Party Subpoenas
sve
eee
F. Impleader
Defendant shall serve its third-party summons and complaint, if any, no later than fifteen (15)
days after the end of the last deposition of a named plaintiff and defendant and/or the last
deposition of a representative of a named party.
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INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Preliminary Conference Order- Commercial Division: Part 7, Sharon M.J. Gianelli, ESC.
G. Discovery concerning Electronically Stored Information (ESD
Section 202.76 Rules of the Commercial Division of the Sapreme Court
Rale 11{c), Consultation prior to Preliminary and Compliance Conferences
Prior to the preliminary conference, counsel shall confer with regard to electronic discovery, including those set
forth in the ESI Guidelines. Topics on which the parties cannot agree shall be addressed with the Court at the
preliminary conference.
Do the parties expect ESI Discovery in this case?
yes [no
Co NOT SURE *The parties are referred to the non-exhaustive list provided in 22 NYCRR
202.12(b)(4) which can be found at: bttp://wwe.nycourts.gov/rules/trialeourts/202.shtml#70
Please indicate the date the parties met and conferred:
Did the parties reach an agreement? Ca YES Ce lNo
4, ESI DISCOVERY DIRECTIVES
The following must be updated and supplemented as new information becomes available.
a. Preservation: Please indicate for all Plaintiffs and all Defendants that the parties have
created a preservation plan; have identified the relevant custodians for each
computer/server and have designated the individual(s) responsible for the preservation of
ESL
Please indicate the date the parties discussed a preservation plan. ___
b. Production: Please indicate that the parties have agreed to the scope and method for
reviewing ESI (including the relevant search terms or technology assisted review) and that
the parties have agreed on the extent, order and form of production and the projected
production schedule.
Please indicate the date the parties discussed a production plan.
c. Privilege logs and Redactions: Please identify how the parties will provide for the
identification, redaction, and logging of privileged or otherwise confidential ESI.
Please indicate the date the parties discussed privilege logs and Redactions.
d. Claw-Back Provisions for inadvertent production:
Please indicate the date the parties discussed Claw-Back provisions. —
e. Costs: Each party shall bear its own cost of production pursuant to U.S. Bank Nat'l Assoc
y. Greenpoint Mtge. Funding Inc., 94 A.D. 3d 58 (ist Dep't 201). In the event that cost
shifting becomes an issue, the parties shall write a letter to the Court, of not more than
three (3) pages, outlining the problem prior to setting up a call with the Court.
Page 5 of 8
S*ef*1Z
INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
¥reliminary Conference Order- Coromereial Division: Part 7, Sharon MJ. Gianellf
£, Judicial Intervention:
Do the parties anticipate the need for judicial intervention concerning the scope and
methods for preserving and/or producing ESI? YES [NO
ts OTT
2, Additional ESI Directives:
ov even —
H. End of Fact Discovery
November 30, 2023
Faet discovery shall he completed by: creer nnn
(RH date plus 360 days}
LE xpert Discovery
Pursuant to Commercial Division Rules 13(c) and (8) which mandate consultation with
apposing counsel, the Court hereby ORDERS that if any party intends to intraduce expert
testimony at trial or in support of a motion for summary judgment, the parties, no later than
thir (30) days prior to the completion of fact discaver hall confer on a schedule for expert
disclosure, including tdentification o: f experts, the agreement to exchange expert reports, and
the timetable for the deposition of testifying experts. Expert disclosure shall be completed no
later than four (4) months after the completion of fact discovery.
In the event a party objects to this procedure or timetable, the parties shall request a conference
to discuss any objections with the Court.
Expert Disclosure shall precede the filing of a Note of Issue/ Certificate of Readiness.
J. End Date of All Discovery
December— 15, 2023 a
All discove s shall be completed by:
(RII date plus 990 days}
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(FILED:
NASSAU_COUNTY
CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Preliminary Conference Order - Commercial Division: Part 7, Sharon MJ. Gianelli, U.S.C.
PART V. ALTERNATIVE DISPUTE RESOLUTION (ADR)
The Judges of the Commercial Division encourage all parties to work toward a proper and just
resolution of the issues in the case. The Judges of the Commercial Division believe that the
parties are better served the earlier a proper and just resolution can be reached. To that end, the
Judges ask the litigants in this case, on a continuous basis going forward, to consider the
following provisions:
1, Counsel for the parties have discussed or will be discussing the use of the following alternative
dispute mechanisms for this case: (Please indicate}
A Settlement Conference with the Judge [| ves NO
Participation in the Commercial Division’s Alternative Dispute Resolution Program
C] ves NO
Retention of a privately retained mediator Ld YES NO
Other alternate dispute mechanism C=] ves NO
a, Counsel for the parties recommend that the alternate dispute resolution mechanism set forth
above be employed at the following point in the case:
Within the next 60 days Cl ves Co NO
30 days after document discovery is completed Cc yes [<1
fot no
After Plaintiff's deposition [| YES NO
At the close of fact discovery, and prior to expert discovery (ves NO
PART VI: FINAL DIRECTIVES
1. Compliance Conference- Parties or their representative with knowledge of the case and
the Preliminary Conference Order shall appear for a Compliance Conference on
December , 2023 io. OF aay's date plus 120 days)
2. Note of Issue- A copy of this PC Order and subsequent Compliance Orders shall be served
and filed with the Note of Issue.
Plaintiff (unless otherwise noted) shall file a Note of Issue/Certificate of Readiness on or before
December 31, 2023 , (End of all Discovery date plus 60 days)
we
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INDEX NO. 607197/2022
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023
Prelininary rence Grdex» Commercial Division: Fart 7, Sharon Mod. Gianelli, LS.C.
3. Dispositive Mations- Such motions may be filed by Order to Show Cause or Notice of
Motion. The Court encourages the parties to confer and agree on the dates for the opposition
and reply papers to be exchanged and E-Filed. Pursuant to CPLR §3214(b), service of a Notice
of Motion under Rule §3211, $3212 or §3219 shall NOT stay disclosure pending the
determination of that motion, in the absence of a Court Order.
All dispositive motions shall be filed on or before
pi 0 day s)
Janua
a ry 24, 2024 . {Note of Issue date
4. The dates set forth herein may not be adjourned except with the approval of the
Court.
5. Additional directives, (if any):
ann
a os
a eee
Attorney for Plaintiff(s) _ Shae ssan
{Signature} -
I
Nags a
Attorney for Defendant(s} _is! David E. Ross
{Signature} “pec:
“yy
iy wh.
Attorney for Defendant(s) _ J! Michael0. Pec:
(Signature)
Attorney for Defendant(s)
(Signature)
DATE: SO ORDERED:
preps
Hon. Sharon M.J. Gianelli, U.S.C.
ENTERED
Aug 07 2023
NASSAU COUNTY
COUNTY CLERK'S OFFICE
Page 8 of 8
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INDEX NO. 607197/2022
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SUPREME COURT OF THE STATE OF NEW YORE.
COUNTY GF NASSAU: COMMERCIAL DIVISION PART 7
xxxxxx xxxxxx aka JATOLLAH SAREN
individually and derivatively on behalf of
ROCKVILLE CORP.,
Plaintiff,
~against-
Index No. 607197/2022
KATHRI SKN, individually and as the executor
of the Estate of xxxx Sakm, and as co-tnasiee of the
disclaimer Trust under Article “Fourth” of the Last
Will and Testamentof xxxx xxxxx; MAKAN
DELRAI farmer co-truste the disclaimer
Trast and 8 ourth® of tt aat Will and
‘Testarne: nt of xxxx xxxxx; and BAHARARK
AMIR co-trustes of t fhe disclaimer Trust un
he Last HLand Testament of xxxx xxxxx
Defendants,
~and-
ROCKVILLE CORP.
Nontinal Defendant.
eae ——i
xxxxxxx S. AK Ni and ROCKVILLE CORP.
Counterclaim-Plainifts.
ragainst-
xxxxxx SAKEN] and 172 BARGAIN LIQUORS
INC
Counterclaim- Defendants
~ a
ADDENDUM TO PRELIMINARY CONFERENCE ORDER
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PARTI ATURE OF THE CASE
BRIE FS MARY
This chon concemis the ownership of nominal dant Rockville Corp. (“Roe af and its
sole as: at, the property located at 7061 Sunrise Highy Rockville Centre, » YY 11570 tthe
“Propert
Plai ntiff contends that he is, and always has been, the 80% majority sharsholder in Rockyi
and by extension, the Property, pursuant to an alleged oral agreement at Stme point in time ior
around 1996 between Plamtiff and bis brother, xxxx xxxxx Qvho passed away i 2008)
Defendants contend that xxxx Saki solely owned Rockville from inception in 1996 until his
death in 2008, at which point defendant xxxxxxx xxxxx, xxxx's w' HE,e, inherited xxxx’s sole
ownership of Rockville and has remained the sole owner through the pre:
On Sune 2, 2022, Plaintiff commenced th $8 aOR Th g a summons, complaint and application
for a preliminary injonction and temporai training order (“TRO”), aiming th he ow
80% of Rockville. Plainti asserted claims for breach of fiduciary duty and a constructive trast
against Defendants xxxxxxx xxxxx. akan Delrahim, a former trustee of the disclaimer Trust
under the Last Will ami Testament of xxxx xxxxx {the°“1 Trust}, and B. arak Amirian, the
current trustee of the Tra: Defendants moved to dismiss all of Plainti After
granting the TRO ex parte, the Court heard oral argument on June 16, 2 address Plaintiff's
application for a preliminary injunction and Defendants’ cro -motion to d THLISS. At the close of
oral argument, the Court continued the TRO pending its decision on the matio On September
27, 2022. the Court entered its order granting Plaintiffs request for a preleminary injunction and
fo ndants’
denying D: te cross-motion te dism:
Defendants filed their answers, and Defendant xxxxxxx kai filed counterclaims, on October 24,
2022. Kat s counterclaims assert, amons other claim against P! intiff, tortious imterference
with a prospective sale of the Propert toa bona fid pr rok v offering $2.2 million, and breach
of band an} t enrichment c ne fi y alleged agreement between xxxx andi
3 that Plaintiff, in exchange for fh erating 4 lguor store out of the Prope would
pay xxxx, and later xxxxxxx, 20% of the total net profits of that store.
Following entry of the Court’s order on September 7, 2022, Defendants moved by order te
show cause on October 11, 2022 to ma the prelim nary injunction to require the po got
the undert: ing required by CPLR 6312, which wa not included in the Court’s initial ord
The motion was fully briefed on November 15,2022 The Court denied Defendants’ motion as
moot on April 4, 2023 after entering an arpended or that same day directing Plaintiff to “post
an undertaking in the amount of $2,500,000 from a surety, which shall be an insurance company
pursuant to CPLR within iwenty days of the date of this Order.
After that Court-imposed deadline passed without Plaintiff posting the required injunction
3 bond,
Defendants moved by order to show cause to vacate the prefimmary injunction on April 27
2023. On May 4, 2023 Plaintiff cross-moved to reargue and renew Defendants’ motion to
nodify the preliminary injunction, and upon reargument and renewal, sought a modification of
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the Court's amended order to reduce the amount af the undertaking from $2,906,000 to
$150,000. These motions were fatly bri esei don May 24, 2023 and are sid pradice.
There are also two other motions currently pending before the Court. F t, Plaintiff moved for
partial umimary judgment on Febra y 13,2023. That motion was ful briefed on April 5,
3
2023. Second, Defendants dakan Delrahim and Baharak Amirian moved for summa:
judgment for lack of pers | jurisdiction on March 29, 2023. Phat motion was fully briefed on
May , 2023. Both of these motions are sad judice.
Ty SE(S) TO CLAIMS:
Defendants contend that Plaintiff's claim of an oral agreement establishing 30) ownership of
Roekville and the Prop: faifs as a matter of fact because it is based sole his tp:
dixit and
is nat supported by any nedependent witness or any writing of any kind. By ey Defendants
have produced more than a dozen contemporaneous documents showing xxxx xxxxx sand
xxxxxxx xxxxx’s 100% ownership of Rockville. Defendants also contend that Plaintiff's claim of
an oral agreement fails as a matter of law under three distinct legal doctrines, First, the Dead
Man’s Statate, codified at CPLR § 4519, bars Plaintiff from relying on a purported ora!
agreement with xxxx Sakn 3 ‘ho passed away in 2008, Second, Plaintiff's claims are barred by
the statute of fraads. Respondent asserts that he was granted an 80% interest in Rockville whict
owns the property 0 question pursuant to an alleged oral agreement from £996 but there is no
writing of any Kind atternpting to memorialize sa an Fee ent. Third, Plaintiffs claims are
barred by the statute of limitations. xxxx xxxxx died in 2008, and his 100% ownership interest
in Rockville (and the Property) then p: sed to xxxxxxx xxxxx through xxxx’s estate. If Plaintiff
had a claim to assert his supposed 80% ownership of Rockville, that claim plainly acerued in
2008 on xxxx's death, when all of Rockville’s ownership, including the Property. passed to
xxxxxxx Sakui.
Defendan' > comend that Plaintiff failed to meet the three requirements of prelimin
injunctive jet. namely that Plaintiff could not show: a likelihood of success on the merits, that
he would suffer irreparable harm if the injunction was not granted, and that the equities clearl ¥
favored him.
NATURE OF PLAINTIFF'S CLAIM OF OWN SHIP AND DE SE TO
COUNT 1S
Plaintiff claims that he has always maintained a controlling SO% interest in Rockville based on
an over 25 year course of dealing supported by an extensive factual history and documentary
evidence reflecting Plaintiff's payments and contributions to costs associated with the Property.
Separately, Plaintiff claims he is the only party in this action who has overseen and managed the
Property since inception.
In response to Defendant xxxxxxx xxxxx's countere}, m regarding the existence of a verbal
agreement through which Plaintiff was to allegedly pay xxxx, and later xxxxxxx 209% of the
profits generated by the Plaintiff's liquor store business, Plaintif¥ posits that th im is barred
e
by the statute 0: f {imitations since xxxxxxx’s own pleading leges that the payments due ander
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this agreement ceased 10 years aga. Plaintiff also contends that Defendants’ claim of tortioas
interference is belied by the documentary evid ce and his claim that they, as interest
holders in Rockville, were without the requisite autharity to sell the Property absent Plaintift’s
consent.
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Preview
(FILED: NASSAU_COUNTY CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. RECEIVED NYSCEF: 08/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: COMMERCIAL DIVISION: PART 7 Hon. Sharon M.J. Gianelli xxxxxx xxxxxx Plaintiff(s)/Petitioner(s), Index No: 607197/2022 -against- Preliminary Conference Stipulation and Order xxxxxxx xxxxx, et al. Please pote the following guidelines: Defendant(s)/Respondentts). End date for fact discovery: RJI date + 360 days End date for all discovery: RJI date + 390 days rotpate: 9/2/22 Note of Issue date: End of ail discovery + 60 days. Dispositive motions filed by: Note of Issue daie + 60 days TODAY’S DATE: 8/7/23 In the event these timeframes have elapsed at the time of the PC, please substitute RII date with today’s date. PART I: APPEARANCES Please include your name, your firm's name, address, and telephone number; your direct telephone number email address, and the party you represent. Attach up to one (1) additional page for appearances, if necessary. Counsel for Plaintiff(s}/Petitioner(s) Counsel for Defendant(s}/Respondent(s) Ruskin Moscou Faltischek, P.C. Kasowitz Benson Torres LLP Daniel E. Shapiro, Esq. David E. Ross, Esq. 1425 RXR Plaza, East Tower 15th Fl 1833 Broadway Uniondale, NY 11556 New York, N¥ 10019 516-663-6600 212-506-1700 dshapiro@rmipe.com “dross@kasowitz.com Counsel for Defendant(s)/Respondent(s) Counsel for Defendant(s)/Respondent(s) Ruskin Moscou Faltischek, PC. Kasowiiz Benson Torres LLP veneer “Kassandra Polanco, Esq. Michael C. Pecorini, Esa. ae a ee 1425 RXR Plaza, East Tower 18th Fi “4633 Broadway Uniondale, NY 11556 New York, NY 10019 546-663-6800 242-506-1 700 kpolanco@rmfpc.com mpecorini@kasowitz.com lef 12 (FILED: NASSAU_COUNTY CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Preliminary Conference Order- Commercial Division: Part 7, Sharon MJ. Gianelli, d.S.C. PART Hi: NATURE OF THE CASE Please include a brief summary of the case. Attach a maximum of two (2) additional pages, if necessary. BRIEF SUMMARY: Please see the attached addendum. AMOUNT DEMANDED: 4,760,000 plus interest, costs, and fees Claim(s): $_ Cross Claim(s): $ ace 2.200.000 pits Counter Claim(s): $ DEFENSE(S) TO CLAIMS: Please see the attached addendum. — Le — Page 2 of 8 2-ef 12 INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Preliminary Conference Order- Commercial Division: Part 7, Sharon M.J. Gianelli, JSC. PART Ii: CONFIDENTIALITY The Court recognizes that most cases in the Commercial Division involve facts which are highly sensitive. In such cases, in order to proceed to proper discovery, the Court may order the parties to enter into a Confidentiality Agreement, which the Court wii! “So Order”. The parties are referred to the Model Confidentiality Agreement found at https://www. wychar.org/pdf/report/ModelContidentiality.pdf. If the parties need to change the Model Confidentiality Agree se parties are directed to submit a signed Confidentiality Agreement with the changes and a RED LINE copy for the Court to review. Please indicate: The Parties HAVE or HAVE NOT entered into a Confidentiality Agreement. The Parties WILL or [2] WILL NOT enter into a Confidentiality Agreement. if the Parties plan to enter into a Confidentiality Agreement, please indicate when: __ —— The Court [7] HAS or HAS NOT so ordered the Confidentiality Agreement. If so, please indicate when: ——— PART IV: DISCOVERY PROVISIONS Section 202.70 Rules of the Commercial Di on of the Supreme Court Rule 8(a). Consultation prior to Preliminary and Compliance Conferences Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) resohition of the case, in whole or in part; (i) discovery and any other topics to be discussed at the conference, including electronic discovery, as set forth in Rule 11-c, and the timing and scope of expert disclosure under Rule 13(c); (iii) the use of alternate dispute resolution to resolve all or some issues in the {itigation; and (iv) any volumtary and informal exchange of information that the parties agree would help aid early settlement of the case. Counsel shall make a good faith effort to reach agreement on these matters in advance of the conference. Discovery shall proceed pursuant to the Commercial Division Rules found at: itp: /wwe.nycourts.gov/rules/trialcourts/202.shtml#70 PLEASE NOTE THAT MOTION PRACTICE DOES NOT STAY DISCOVERY ABSENT A COURT ORDER. A. Bill of Particulars NIA 1. Demand for a Bill of Particulars shall be served by all parties on or before 2. Responses to Demands for a Bill of Particulars shall be served by all parties on or before N/A B. Document Production All documents produced by any and all parties mast be Bates stamped. 4, Initial demands for discovery and inspection shall be served by all parties on or before February 9, 2023 2. Responses to demands for discovery and inspection shall be served by all parties on or before September 18, 2023. en . Note: The parties have already served their responses and objections to each other's document requests. Defendants intend to renew their Rule 14 request to compel Page 3 of 8 Plaintiff io produce documents he has otherwise objected to if he does not amend his responses and produce relevant documents by September 16, 2023. 3 -0f-12 = INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Preliminary Confere: Order - Commere jsion: Part 7, Sharon M.J. Gianelli, J €, Interrogatories i, Interrogatories shall be served hy all parties on or before Feb uary 9, 2023 2. Answers tu Interrogatories shall be served by all parties on or before ugust 18, 2023 Note: The parties have alread served th: re: es and adjections {> each other's rogator ar ad ta renew their Rude 14 request fo mpet Pi inti t od hi ry hs pO see if he has not ady dane so by August 18, 2023. D.D epositions Attach one (1) additional page, neces? Plaintiff's deposition shall be held on er before Seoteete RON 20y¢ 323 First named Defendant's deposition shall be held on or before Second named Defendant’s deposition shall be held on or before October 31, 2023 Third named Defendant's deposition shall be held on or before October 34 2023 All Depasitions must be completed by Naver: 30, 2023 E. Other Disclosure Inchide ar Attach nm se-specific isgees yaddit al page, if necessary. The parties reserve the right io serve the following, as necessar Requests for Admission Ad tonal | Interrogatories and Document Requests, including contention n interrogatories a Additional Third Party Subpoenas sve eee F. Impleader Defendant shall serve its third-party summons and complaint, if any, no later than fifteen (15) days after the end of the last deposition of a named plaintiff and defendant and/or the last deposition of a representative of a named party. Page 4 af 8 4°of 12 INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Preliminary Conference Order- Commercial Division: Part 7, Sharon M.J. Gianelli, ESC. G. Discovery concerning Electronically Stored Information (ESD Section 202.76 Rules of the Commercial Division of the Sapreme Court Rale 11{c), Consultation prior to Preliminary and Compliance Conferences Prior to the preliminary conference, counsel shall confer with regard to electronic discovery, including those set forth in the ESI Guidelines. Topics on which the parties cannot agree shall be addressed with the Court at the preliminary conference. Do the parties expect ESI Discovery in this case? yes [no Co NOT SURE *The parties are referred to the non-exhaustive list provided in 22 NYCRR 202.12(b)(4) which can be found at: bttp://wwe.nycourts.gov/rules/trialeourts/202.shtml#70 Please indicate the date the parties met and conferred: Did the parties reach an agreement? Ca YES Ce lNo 4, ESI DISCOVERY DIRECTIVES The following must be updated and supplemented as new information becomes available. a. Preservation: Please indicate for all Plaintiffs and all Defendants that the parties have created a preservation plan; have identified the relevant custodians for each computer/server and have designated the individual(s) responsible for the preservation of ESL Please indicate the date the parties discussed a preservation plan. ___ b. Production: Please indicate that the parties have agreed to the scope and method for reviewing ESI (including the relevant search terms or technology assisted review) and that the parties have agreed on the extent, order and form of production and the projected production schedule. Please indicate the date the parties discussed a production plan. c. Privilege logs and Redactions: Please identify how the parties will provide for the identification, redaction, and logging of privileged or otherwise confidential ESI. Please indicate the date the parties discussed privilege logs and Redactions. d. Claw-Back Provisions for inadvertent production: Please indicate the date the parties discussed Claw-Back provisions. — e. Costs: Each party shall bear its own cost of production pursuant to U.S. Bank Nat'l Assoc y. Greenpoint Mtge. Funding Inc., 94 A.D. 3d 58 (ist Dep't 201). In the event that cost shifting becomes an issue, the parties shall write a letter to the Court, of not more than three (3) pages, outlining the problem prior to setting up a call with the Court. Page 5 of 8 S*ef*1Z INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 ¥reliminary Conference Order- Coromereial Division: Part 7, Sharon MJ. Gianellf £, Judicial Intervention: Do the parties anticipate the need for judicial intervention concerning the scope and methods for preserving and/or producing ESI? YES [NO ts OTT 2, Additional ESI Directives: ov even — H. End of Fact Discovery November 30, 2023 Faet discovery shall he completed by: creer nnn (RH date plus 360 days} LE xpert Discovery Pursuant to Commercial Division Rules 13(c) and (8) which mandate consultation with apposing counsel, the Court hereby ORDERS that if any party intends to intraduce expert testimony at trial or in support of a motion for summary judgment, the parties, no later than thir (30) days prior to the completion of fact discaver hall confer on a schedule for expert disclosure, including tdentification o: f experts, the agreement to exchange expert reports, and the timetable for the deposition of testifying experts. Expert disclosure shall be completed no later than four (4) months after the completion of fact discovery. In the event a party objects to this procedure or timetable, the parties shall request a conference to discuss any objections with the Court. Expert Disclosure shall precede the filing of a Note of Issue/ Certificate of Readiness. J. End Date of All Discovery December— 15, 2023 a All discove s shall be completed by: (RII date plus 990 days} Page Gof 8 6 of "12 (FILED: NASSAU_COUNTY CLERK 08/07/2023 12:39 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Preliminary Conference Order - Commercial Division: Part 7, Sharon MJ. Gianelli, U.S.C. PART V. ALTERNATIVE DISPUTE RESOLUTION (ADR) The Judges of the Commercial Division encourage all parties to work toward a proper and just resolution of the issues in the case. The Judges of the Commercial Division believe that the parties are better served the earlier a proper and just resolution can be reached. To that end, the Judges ask the litigants in this case, on a continuous basis going forward, to consider the following provisions: 1, Counsel for the parties have discussed or will be discussing the use of the following alternative dispute mechanisms for this case: (Please indicate} A Settlement Conference with the Judge [| ves NO Participation in the Commercial Division’s Alternative Dispute Resolution Program C] ves NO Retention of a privately retained mediator Ld YES NO Other alternate dispute mechanism C=] ves NO a, Counsel for the parties recommend that the alternate dispute resolution mechanism set forth above be employed at the following point in the case: Within the next 60 days Cl ves Co NO 30 days after document discovery is completed Cc yes [<1 fot no After Plaintiff's deposition [| YES NO At the close of fact discovery, and prior to expert discovery (ves NO PART VI: FINAL DIRECTIVES 1. Compliance Conference- Parties or their representative with knowledge of the case and the Preliminary Conference Order shall appear for a Compliance Conference on December , 2023 io. OF aay's date plus 120 days) 2. Note of Issue- A copy of this PC Order and subsequent Compliance Orders shall be served and filed with the Note of Issue. Plaintiff (unless otherwise noted) shall file a Note of Issue/Certificate of Readiness on or before December 31, 2023 , (End of all Discovery date plus 60 days) we Page 7 of 8 7Fof+12 INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 Prelininary rence Grdex» Commercial Division: Fart 7, Sharon Mod. Gianelli, LS.C. 3. Dispositive Mations- Such motions may be filed by Order to Show Cause or Notice of Motion. The Court encourages the parties to confer and agree on the dates for the opposition and reply papers to be exchanged and E-Filed. Pursuant to CPLR §3214(b), service of a Notice of Motion under Rule §3211, $3212 or §3219 shall NOT stay disclosure pending the determination of that motion, in the absence of a Court Order. All dispositive motions shall be filed on or before pi 0 day s) Janua a ry 24, 2024 . {Note of Issue date 4. The dates set forth herein may not be adjourned except with the approval of the Court. 5. Additional directives, (if any): ann a os a eee Attorney for Plaintiff(s) _ Shae ssan {Signature} - I Nags a Attorney for Defendant(s} _is! David E. Ross {Signature} “pec: “yy iy wh. Attorney for Defendant(s) _ J! Michael0. Pec: (Signature) Attorney for Defendant(s) (Signature) DATE: SO ORDERED: preps Hon. Sharon M.J. Gianelli, U.S.C. ENTERED Aug 07 2023 NASSAU COUNTY COUNTY CLERK'S OFFICE Page 8 of 8 8 of 12 INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 SUPREME COURT OF THE STATE OF NEW YORE. COUNTY GF NASSAU: COMMERCIAL DIVISION PART 7 xxxxxx xxxxxx aka JATOLLAH SAREN individually and derivatively on behalf of ROCKVILLE CORP., Plaintiff, ~against- Index No. 607197/2022 KATHRI SKN, individually and as the executor of the Estate of xxxx Sakm, and as co-tnasiee of the disclaimer Trust under Article “Fourth” of the Last Will and Testamentof xxxx xxxxx; MAKAN DELRAI farmer co-truste the disclaimer Trast and 8 ourth® of tt aat Will and ‘Testarne: nt of xxxx xxxxx; and BAHARARK AMIR co-trustes of t fhe disclaimer Trust un he Last HLand Testament of xxxx xxxxx Defendants, ~and- ROCKVILLE CORP. Nontinal Defendant. eae ——i xxxxxxx S. AK Ni and ROCKVILLE CORP. Counterclaim-Plainifts. ragainst- xxxxxx SAKEN] and 172 BARGAIN LIQUORS INC Counterclaim- Defendants ~ a ADDENDUM TO PRELIMINARY CONFERENCE ORDER 9 of 12 = INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 PARTI ATURE OF THE CASE BRIE FS MARY This chon concemis the ownership of nominal dant Rockville Corp. (“Roe af and its sole as: at, the property located at 7061 Sunrise Highy Rockville Centre, » YY 11570 tthe “Propert Plai ntiff contends that he is, and always has been, the 80% majority sharsholder in Rockyi and by extension, the Property, pursuant to an alleged oral agreement at Stme point in time ior around 1996 between Plamtiff and bis brother, xxxx xxxxx Qvho passed away i 2008) Defendants contend that xxxx Saki solely owned Rockville from inception in 1996 until his death in 2008, at which point defendant xxxxxxx xxxxx, xxxx's w' HE,e, inherited xxxx’s sole ownership of Rockville and has remained the sole owner through the pre: On Sune 2, 2022, Plaintiff commenced th $8 aOR Th g a summons, complaint and application for a preliminary injonction and temporai training order (“TRO”), aiming th he ow 80% of Rockville. Plainti asserted claims for breach of fiduciary duty and a constructive trast against Defendants xxxxxxx xxxxx. akan Delrahim, a former trustee of the disclaimer Trust under the Last Will ami Testament of xxxx xxxxx {the°“1 Trust}, and B. arak Amirian, the current trustee of the Tra: Defendants moved to dismiss all of Plainti After granting the TRO ex parte, the Court heard oral argument on June 16, 2 address Plaintiff's application for a preliminary injunction and Defendants’ cro -motion to d THLISS. At the close of oral argument, the Court continued the TRO pending its decision on the matio On September 27, 2022. the Court entered its order granting Plaintiffs request for a preleminary injunction and fo ndants’ denying D: te cross-motion te dism: Defendants filed their answers, and Defendant xxxxxxx kai filed counterclaims, on October 24, 2022. Kat s counterclaims assert, amons other claim against P! intiff, tortious imterference with a prospective sale of the Propert toa bona fid pr rok v offering $2.2 million, and breach of band an} t enrichment c ne fi y alleged agreement between xxxx andi 3 that Plaintiff, in exchange for fh erating 4 lguor store out of the Prope would pay xxxx, and later xxxxxxx, 20% of the total net profits of that store. Following entry of the Court’s order on September 7, 2022, Defendants moved by order te show cause on October 11, 2022 to ma the prelim nary injunction to require the po got the undert: ing required by CPLR 6312, which wa not included in the Court’s initial ord The motion was fully briefed on November 15,2022 The Court denied Defendants’ motion as moot on April 4, 2023 after entering an arpended or that same day directing Plaintiff to “post an undertaking in the amount of $2,500,000 from a surety, which shall be an insurance company pursuant to CPLR within iwenty days of the date of this Order. After that Court-imposed deadline passed without Plaintiff posting the required injunction 3 bond, Defendants moved by order to show cause to vacate the prefimmary injunction on April 27 2023. On May 4, 2023 Plaintiff cross-moved to reargue and renew Defendants’ motion to nodify the preliminary injunction, and upon reargument and renewal, sought a modification of 10 of 12 FILED: NASSAU COUNTY CLERK 0870772023 12:39 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 the Court's amended order to reduce the amount af the undertaking from $2,906,000 to $150,000. These motions were fatly bri esei don May 24, 2023 and are sid pradice. There are also two other motions currently pending before the Court. F t, Plaintiff moved for partial umimary judgment on Febra y 13,2023. That motion was ful briefed on April 5, 3 2023. Second, Defendants dakan Delrahim and Baharak Amirian moved for summa: judgment for lack of pers | jurisdiction on March 29, 2023. Phat motion was fully briefed on May , 2023. Both of these motions are sad judice. Ty SE(S) TO CLAIMS: Defendants contend that Plaintiff's claim of an oral agreement establishing 30) ownership of Roekville and the Prop: faifs as a matter of fact because it is based sole his tp: dixit and is nat supported by any nedependent witness or any writing of any kind. By ey Defendants have produced more than a dozen contemporaneous documents showing xxxx xxxxx sand xxxxxxx xxxxx’s 100% ownership of Rockville. Defendants also contend that Plaintiff's claim of an oral agreement fails as a matter of law under three distinct legal doctrines, First, the Dead Man’s Statate, codified at CPLR § 4519, bars Plaintiff from relying on a purported ora! agreement with xxxx Sakn 3 ‘ho passed away in 2008, Second, Plaintiff's claims are barred by the statute of fraads. Respondent asserts that he was granted an 80% interest in Rockville whict owns the property 0 question pursuant to an alleged oral agreement from £996 but there is no writing of any Kind atternpting to memorialize sa an Fee ent. Third, Plaintiffs claims are barred by the statute of limitations. xxxx xxxxx died in 2008, and his 100% ownership interest in Rockville (and the Property) then p: sed to xxxxxxx xxxxx through xxxx’s estate. If Plaintiff had a claim to assert his supposed 80% ownership of Rockville, that claim plainly acerued in 2008 on xxxx's death, when all of Rockville’s ownership, including the Property. passed to xxxxxxx Sakui. Defendan' > comend that Plaintiff failed to meet the three requirements of prelimin injunctive jet. namely that Plaintiff could not show: a likelihood of success on the merits, that he would suffer irreparable harm if the injunction was not granted, and that the equities clearl ¥ favored him. NATURE OF PLAINTIFF'S CLAIM OF OWN SHIP AND DE SE TO COUNT 1S Plaintiff claims that he has always maintained a controlling SO% interest in Rockville based on an over 25 year course of dealing supported by an extensive factual history and documentary evidence reflecting Plaintiff's payments and contributions to costs associated with the Property. Separately, Plaintiff claims he is the only party in this action who has overseen and managed the Property since inception. In response to Defendant xxxxxxx xxxxx's countere}, m regarding the existence of a verbal agreement through which Plaintiff was to allegedly pay xxxx, and later xxxxxxx 209% of the profits generated by the Plaintiff's liquor store business, Plaintif¥ posits that th im is barred e by the statute 0: f {imitations since xxxxxxx’s own pleading leges that the payments due ander 11 of 12 INDEX NO. 607197/2022 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/07/2023 this agreement ceased 10 years aga. Plaintiff also contends that Defendants’ claim of tortioas interference is belied by the documentary evid ce and his claim that they, as interest holders in Rockville, were without the requisite autharity to sell the Property absent Plaintift’s consent. 12 of 12