Preview
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
…………………………………………………..x
SEOHEE KONG
Index No. 156864/16
Plaintiff
AFFIRMATION -
against-
MORRISON-TENNENBAUM PLLC and THE
MORRISON LAW OFFICES, P.C.
Defendants
…………………………………………………..x
PERRY S. FRIEDMAN, an attorney licensed to practice law in the Courts of the State of
New York affirms as follows under penalty of perjury.
1. I am the attorney for plaintiff SEOHEE KONG (“KONG”) I am familiar with the
facts herein and I make this affirmation in opposition to Defendants MORRISON-
TENNENBAUM PLLC and THE MORRISON LAW OFFICES, P.C.’s motion
pursuant to CPLR 3123 to compel plaintiff to come into compliance with Defendants’
discovery requests [their Notice to Admit] or to have the verified complaint stricken
and the action dismissed.
2. As a preliminary matter it should be noted that the penalty for the failure to respond
to a notice to admit pursuant to CPLR 3123 does not include the striking of the
summons and complaint.
RELEVANT PROCEDURAL BACKGROUND
3. This is an action against two law firms who simultaneously employed KONG as an
associate for non-payment of salary, commissions and benefits and for pregnancy
discrimination in violation of the New York State and New York City Human Rights
Laws. A copy of the summons and complaint is attached herein as Exhibit A.
4. On October 4, 2016 the Defendants filed and served an answer a copy of which is
attached herein as Exhibit B.
5. The two main contested issues in this action are whether KONG was an independent
contractor or employee of the Defendants when she worked for them and whether
1 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
KONG resigned from working for Defendants or was terminated under pretext as a
result of informing Defendants that she was pregnant and requesting maternity leave.
More specifically, soon after KONG informed Defendants that she was pregnant,
Defendants’ principal Lawrence Morrison falsely told her that he had to “let her go”
because he was closing one of his firms (Exhibit A).
6. On or about January 29. 2018 Defendants moved for summary judgment. A copy of
the notice of motion without supporting papers or exhibits is attached herein as
Exhibit C.
7. Prior to making the aforesaid motion and up to and including the date of this
affirmation the Defendants have not taken KONG’s deposition.
8. On May 1, 2018 the Court denied Defendants’ motion for summary judgment. A
copy of the Court’s order is attached herein as Exhibit D. In relevant part the Court
stated,
“Significantly there are issues of fact as to whether plaintiff was an employee
or independent contractor based on, among other things, the degree of control
that defendants exercised over plaintiff and the nature of her work schedule…
There are also questions of fact surrounding the actual reason that plaintiff
stopped working with defendants; whether she voluntarily resigned
or whether she was terminated under pretext.” (Exhibit D).
9. On or about October 17, 2018 Defendants’ counsel served affirmant with a Notice to
Admit consisting of seven (7) pages and 63 individual requests for admissions. A
copy of the aforesaid notice to admit is attached to Defendants’ moving papers as
Exhibit B1
1
Exhibits to Defendants’ moving papers shall hereinafter be referred to by there being a D in front of the
exhibit letterFor example, the Defendants’ Exhibit B shall be referred to as “DB”
2
2 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
10. KONG timely responded to the aforesaid Notice to Admit.2 Each Request for
Admission was responded to by either being admitted, denied or in the case of a
Request that could neither be admitted nor denied an explanation was given pursuant
to CPLR 3123 (a). Additionally, numerous requests were improper for a Notice to
Admit in that they either went to the heart of the matters litigated (whether KONG
was an independent contractor or employee when she worked for Defendants and
whether KONG resigned or was terminated under pretext) or were of a nature for
which a different discovery device such as a deposition of the Plaintiff would be more
appropriate. These requests were not responded to. Instead, these Requests were
objected to and caselaw was cited explaining why these particular Requests for
Admissions were improper.
11. After service of the aforesaid Responses counsel for the parties conferred and as a
result, an Amended Response to Notice to Admit was served.3 A copy of the
Amended Response is attached to the Defendants’ moving papers as Exhibit A.4
THE ESTABLISHED LAW CONCERNING NOTICES TO ADMIT
12. It is the well-established law of this State that the purpose of a notice to admit is only
to eliminate issues in litigation matters which will not be in dispute at trial, . It is not
intended to cover ultimate conclusions, which can only be made after a full and
complete trial. A notice to admit which goes to the heart of the matters at issue is
improper, DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d Dept 1997) [cites
2
The First Response to the Notice to Admit is not attached as an exhibit by either the Defendants or the
Plaintiff because an amended Response was later served which is the Response at issue in Defendants’ motion.
3
Defendants’ counsel did not remove any of the improper requests
4
See Footnote 1 This exhibit will hereinafter be referred to as Exhibit “DA”
3
3 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
omitted]. See also Williams v. City of New York, 125 A.D. 3d 767 (2d Dept 2015)
and Tonkiwa v. Truesdell, 155 A.D. 3d 1479,1481 (3d Dept 2017).
13. A Notice to Admit is not to be employed to obtain information in lieu of other
discovery devices, or to compel admissions of fundamental or material issues or
contested ultimate facts, 32nd Avenue LLC v. Angelo Holding Corp., et. al., 134 A.D.
3d 696, 698 (2d Dept 2015).
14. As shall be set forth below, a substantial number of the requests for admissions
contained in Defendants' Notice to Admit were improper and therefore were objected
to, citing caselaw and not answered.
15. It should be noted that in the Defendants' moving papers Defendants' counsel does not
address the actual objections or the case law that was cited in support of the aforesaid
objections. Instead, he simply states that it was improper for KONG not to respond to
the requests for admissions. It is respectfully requested that since the Defendants
were on notice regarding the legal basis of KONG's objections (see Amended
Response to Notice to Admit, Exhibit DA), but made the conscious decision not to
address them in their moving papers that any arguments in the reply papers regarding
this issue should not be considered by the Court unless Plaintiff is given the
opportunity to serve and file a sur reply
DISCUSSION
16. Defendant’s counsel in his moving papers has incorrectly stated that three requests
for admissions were nor responded to when there actually were responses.
17. Defendants’ counsel claims that Request No. “7”, “Ms. Kong was only 4 months
pregnant when she resigned on October 20, 2014” (Exhibit DB) was not responded
4
4 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
to. KONG admitted that she was 4 months pregnant at the time that her employment
was terminated, however she objected to the balance of the request in that the issue of
whether she resigned or was terminated goes to the heart of what is at issue in this
matter, see Exhibit DA and Exhibit D.
18. Defendants’ counsel claims that Request No. “57”, “Admit that the e-mail dated
November 3, 2014, together with the letter dated November 3, 2014, copies of which
are attached [to the Notice to Admit] as Exhibit C are true and correct.”(Exhibit
“DB”) was not responded to. There was an objection for the record that it was
unclear whether “true and correct” referred to whether the document was a true and
correct copy or whether the substance of the document was true and correct
Notwithstanding the foregoing, KONG admitted that the Exhibit C contained true and
correct copies of the documents in question but denied that the substance of what was
contained in the documents was accurate in that additional amounts were owed to her
(Exhibit DA).
19. Defendants’ counsel claims that Request No. “63”, “Admit that copies of checks
evidencing payments to Seohee Kong, copies of which are attached as Exhibit I are
true and correct,” (Exhibit DB) was not responded to. As was the case for No “57”
and almost all of the requests for admissions regarding documents there was an
objection for the record that it was unclear whether “true and correct” referred to
whether the document was a true and correct copy or whether the substance of the
document was true and correct. Notwithstanding the foregoing this request was
admitted to the extent that the checks in question [which were made out to KONG]
5
5 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
consisted of true and correct copies of checks that were served upon KONG’s
attorney on November 8, 2017 (See Exhibit DA).
A. Requests that were not Responded to because they Went to the Heart of the Matters
that were at Issue
20. As stated above, a substantial amount of the requests for admissions contained in
Defendants’ Notice to Admit were not responded on the ground that they were
improper and contrary to law because they went to the heart of matters that were at
issue in this action.
21. Requests No’s “2,” “6,” “25,” “27”, ”29,” “35”-“39,” “59” and “62” were not
responded to because they all concerned the issue of whether KONG was an
independent contractor or an employee (Exhibits DA and DB). As such these
requests all go to the heart of one of the matters that are at issue in this action (Exhibit
D). Under the caselaw cited above and cited in the Amended Response to the Notice
to Admit, (See Exhibit DA where DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d
Dept 1997) is cited in response to these admission requests) these Requests are
palpably improper and do not have to be answered.
22. Requests No’s “3,” “ 4,” “5,” “7” (in part), “9,” “16,” “18,” and “25,” were not
responded to because they all concerned the issue of whether KONG resigned or was
terminated under pretext from her employment.(Exhibits DA and DB). As such these
requests all go to the heart of one of the matters that are at issue in this action (Exhibit
D). Under the caselaw cited above and cited in the Amended Response to the Notice
to Admit, (See Exhibit DB where DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d
Dept 1997) is cited in response to these admission requests) these Requests are
palpably improper and do not have to be answered.
6
6 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
23. Requests No’s “43”-“47” requested that KONG admit that tax returns filed by
her between 2013 and 2017 showed that her income for those years were “entirely
1099 income.”5 (See Exhibit DB). These requests were not responded to because
they were improper requests (See Exhibit DA). These requests were improper for
several reasons. First, KONG has never produced any of her tax returns in this
action,6 therefore Defendants and their counsel have no good faith basis to make
any requests for admissions regarding what may be contained in KONG’s tax
returns. Secondly, Defendants have further not made any kind of showing
regarding why there would be any relevance regarding what is contained in
KONG’s tax returns for years when she was not employed by the Defendants.
Finally, to date Defendants have not taken KONG’s deposition.
24. Requests No’s “9,” “13,” “14,” “19”, ”22,” 35-39,” “42” and “48” were not
responded to because the information requested could be obtained either through
taking KONG’s deposition or another discovery device (See Exhibits DA and DB).
Under the caselaw cited above and cited in the Response to the Notice to Admit, (See
Exhibit DA where 32nd Avenue LLC v. Angelo Holding Corp., et. al., 134 A.D. 3d
696, 698 (2d Dept 2015) is cited in response to these admission requests) these
Requests are palpably improper and do not have to be answered.
5
Defendant’s counsel does not define the term “1099 income” It ispresumed what is meant by this phrase is
money earned as an independent contractor, but this is unclear. If so, these requests are additionally improper since
they concern the issue of whether KONG was an independent contractor or an employee, at least for the two tax
years when she was employed by the Defendants.
6
Defendant’s counsel on several occasions at Preliminary Conferences and Status Conferences has requested that
KONG be ordered to produce her tax returns and on each occasion his request was rejected on the ground that he
had not made a showing that the tax returns were necessary.
7
7 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
B. Requests that Could Neither Be Admitted Nor Denied
25. Requests No’s “8,” 24,” “42” “48,”53,”7”54”8 and “56”9 could neither be admitted
nor denied (See Exhibits DA and DB). Pursuant to CPLR 3123 (a) explanations were
given regarding why these Requests could neither be admitted nor denied (Exhibit
DA). This Court is respectfully referred to the Amended Response to Defendants’
Notice to Admit (attached to Defendants’ moving papers as Exhibit A) for the
specific responses and explanations given for why these Requests for Admissions
could neither be admitted nor denied. It should be noted that Defendants’ counsel in
his moving affirmation does not explain why these responses were “contrary to the
requirements of CPLR 3123.”10
26. Regarding KONG ‘s response to Request No. “24”, Defendants’ counsel
conclusively states that KONG’s response “makes no sense.”11 The response actually
makes perfect sense. Request No. “24” requests that KONG admit, “ Ms. Kong
prepared and provided “time sheets” to the Defendant so that she could be paid for
the hours actually billed.” (Exhibit DB). The response was that KONG could neither
admit nor deny this statement because there was no indication in the Request
regarding the point in time that is being referred to. More specifically whether this
question refers to the “trial period or after the “trial period.”(Exhibit DA). At the time
that Defendants originally hired KONG it was on a trial basis. At the conclusion of
7
Defendants’ counsel in his moving papers does not indicate that the response to this Request was improper but is
including it because it could neither be admitted nor denied
8
See Footnote 7 above
9
See Footnote 7 above
10
See ¶ 8 of the moving affirmation of Douglas J. Pick.
11
See ¶ 9 of the moving affirmation of Douglas J. Pick
8
8 of 9
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019
the trial period KONG became a full-time salaried employee. By reason of the
foregoing, the response to this Request would depend upon whether Defendants are
referring to during the trial period or after the trial period.
27. Requests, “50,” “51,” and “52,” all request that KONG admit to what is “not
mentioned” in a document (Exhibit DB). These requests are all improper because the
documents speak for themselves. There is no legitimate purpose in requesting that
KONG admit to what is contained or not contained in a document. This information
can be obtained by simply reading the document.
CONCLUSION
28. As is stated above, every improper Request that was made by Defendants in their
Notice to Admit was responded to with an objection giving a detailed legal basis for
why the Request was improper. In their moving papers Defendants do not contest
any of these explanations.
29. It is respectfully submitted that Defendants’ failure to address any of these objections
clearly illustrates this motion’s lack of merit and it is unclear why defendants made
this motion.
30. By reason of the foregoing Defendants’ motion should be denied in its entirety
together with any further relief that this Court may deem appropriate
Dated: New York, New York
January 14, 2019
/s Perry S. Friedman
PERRY S. FRIEDMAN
9
9 of 9
Preview
FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK …………………………………………………..x SEOHEE KONG Index No. 156864/16 Plaintiff AFFIRMATION - against- MORRISON-TENNENBAUM PLLC and THE MORRISON LAW OFFICES, P.C. Defendants …………………………………………………..x PERRY S. FRIEDMAN, an attorney licensed to practice law in the Courts of the State of New York affirms as follows under penalty of perjury. 1. I am the attorney for plaintiff SEOHEE KONG (“KONG”) I am familiar with the facts herein and I make this affirmation in opposition to Defendants MORRISON- TENNENBAUM PLLC and THE MORRISON LAW OFFICES, P.C.’s motion pursuant to CPLR 3123 to compel plaintiff to come into compliance with Defendants’ discovery requests [their Notice to Admit] or to have the verified complaint stricken and the action dismissed. 2. As a preliminary matter it should be noted that the penalty for the failure to respond to a notice to admit pursuant to CPLR 3123 does not include the striking of the summons and complaint. RELEVANT PROCEDURAL BACKGROUND 3. This is an action against two law firms who simultaneously employed KONG as an associate for non-payment of salary, commissions and benefits and for pregnancy discrimination in violation of the New York State and New York City Human Rights Laws. A copy of the summons and complaint is attached herein as Exhibit A. 4. On October 4, 2016 the Defendants filed and served an answer a copy of which is attached herein as Exhibit B. 5. The two main contested issues in this action are whether KONG was an independent contractor or employee of the Defendants when she worked for them and whether 1 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 KONG resigned from working for Defendants or was terminated under pretext as a result of informing Defendants that she was pregnant and requesting maternity leave. More specifically, soon after KONG informed Defendants that she was pregnant, Defendants’ principal Lawrence Morrison falsely told her that he had to “let her go” because he was closing one of his firms (Exhibit A). 6. On or about January 29. 2018 Defendants moved for summary judgment. A copy of the notice of motion without supporting papers or exhibits is attached herein as Exhibit C. 7. Prior to making the aforesaid motion and up to and including the date of this affirmation the Defendants have not taken KONG’s deposition. 8. On May 1, 2018 the Court denied Defendants’ motion for summary judgment. A copy of the Court’s order is attached herein as Exhibit D. In relevant part the Court stated, “Significantly there are issues of fact as to whether plaintiff was an employee or independent contractor based on, among other things, the degree of control that defendants exercised over plaintiff and the nature of her work schedule… There are also questions of fact surrounding the actual reason that plaintiff stopped working with defendants; whether she voluntarily resigned or whether she was terminated under pretext.” (Exhibit D). 9. On or about October 17, 2018 Defendants’ counsel served affirmant with a Notice to Admit consisting of seven (7) pages and 63 individual requests for admissions. A copy of the aforesaid notice to admit is attached to Defendants’ moving papers as Exhibit B1 1 Exhibits to Defendants’ moving papers shall hereinafter be referred to by there being a D in front of the exhibit letterFor example, the Defendants’ Exhibit B shall be referred to as “DB” 2 2 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 10. KONG timely responded to the aforesaid Notice to Admit.2 Each Request for Admission was responded to by either being admitted, denied or in the case of a Request that could neither be admitted nor denied an explanation was given pursuant to CPLR 3123 (a). Additionally, numerous requests were improper for a Notice to Admit in that they either went to the heart of the matters litigated (whether KONG was an independent contractor or employee when she worked for Defendants and whether KONG resigned or was terminated under pretext) or were of a nature for which a different discovery device such as a deposition of the Plaintiff would be more appropriate. These requests were not responded to. Instead, these Requests were objected to and caselaw was cited explaining why these particular Requests for Admissions were improper. 11. After service of the aforesaid Responses counsel for the parties conferred and as a result, an Amended Response to Notice to Admit was served.3 A copy of the Amended Response is attached to the Defendants’ moving papers as Exhibit A.4 THE ESTABLISHED LAW CONCERNING NOTICES TO ADMIT 12. It is the well-established law of this State that the purpose of a notice to admit is only to eliminate issues in litigation matters which will not be in dispute at trial, . It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper, DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d Dept 1997) [cites 2 The First Response to the Notice to Admit is not attached as an exhibit by either the Defendants or the Plaintiff because an amended Response was later served which is the Response at issue in Defendants’ motion. 3 Defendants’ counsel did not remove any of the improper requests 4 See Footnote 1 This exhibit will hereinafter be referred to as Exhibit “DA” 3 3 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 omitted]. See also Williams v. City of New York, 125 A.D. 3d 767 (2d Dept 2015) and Tonkiwa v. Truesdell, 155 A.D. 3d 1479,1481 (3d Dept 2017). 13. A Notice to Admit is not to be employed to obtain information in lieu of other discovery devices, or to compel admissions of fundamental or material issues or contested ultimate facts, 32nd Avenue LLC v. Angelo Holding Corp., et. al., 134 A.D. 3d 696, 698 (2d Dept 2015). 14. As shall be set forth below, a substantial number of the requests for admissions contained in Defendants' Notice to Admit were improper and therefore were objected to, citing caselaw and not answered. 15. It should be noted that in the Defendants' moving papers Defendants' counsel does not address the actual objections or the case law that was cited in support of the aforesaid objections. Instead, he simply states that it was improper for KONG not to respond to the requests for admissions. It is respectfully requested that since the Defendants were on notice regarding the legal basis of KONG's objections (see Amended Response to Notice to Admit, Exhibit DA), but made the conscious decision not to address them in their moving papers that any arguments in the reply papers regarding this issue should not be considered by the Court unless Plaintiff is given the opportunity to serve and file a sur reply DISCUSSION 16. Defendant’s counsel in his moving papers has incorrectly stated that three requests for admissions were nor responded to when there actually were responses. 17. Defendants’ counsel claims that Request No. “7”, “Ms. Kong was only 4 months pregnant when she resigned on October 20, 2014” (Exhibit DB) was not responded 4 4 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 to. KONG admitted that she was 4 months pregnant at the time that her employment was terminated, however she objected to the balance of the request in that the issue of whether she resigned or was terminated goes to the heart of what is at issue in this matter, see Exhibit DA and Exhibit D. 18. Defendants’ counsel claims that Request No. “57”, “Admit that the e-mail dated November 3, 2014, together with the letter dated November 3, 2014, copies of which are attached [to the Notice to Admit] as Exhibit C are true and correct.”(Exhibit “DB”) was not responded to. There was an objection for the record that it was unclear whether “true and correct” referred to whether the document was a true and correct copy or whether the substance of the document was true and correct Notwithstanding the foregoing, KONG admitted that the Exhibit C contained true and correct copies of the documents in question but denied that the substance of what was contained in the documents was accurate in that additional amounts were owed to her (Exhibit DA). 19. Defendants’ counsel claims that Request No. “63”, “Admit that copies of checks evidencing payments to Seohee Kong, copies of which are attached as Exhibit I are true and correct,” (Exhibit DB) was not responded to. As was the case for No “57” and almost all of the requests for admissions regarding documents there was an objection for the record that it was unclear whether “true and correct” referred to whether the document was a true and correct copy or whether the substance of the document was true and correct. Notwithstanding the foregoing this request was admitted to the extent that the checks in question [which were made out to KONG] 5 5 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 consisted of true and correct copies of checks that were served upon KONG’s attorney on November 8, 2017 (See Exhibit DA). A. Requests that were not Responded to because they Went to the Heart of the Matters that were at Issue 20. As stated above, a substantial amount of the requests for admissions contained in Defendants’ Notice to Admit were not responded on the ground that they were improper and contrary to law because they went to the heart of matters that were at issue in this action. 21. Requests No’s “2,” “6,” “25,” “27”, ”29,” “35”-“39,” “59” and “62” were not responded to because they all concerned the issue of whether KONG was an independent contractor or an employee (Exhibits DA and DB). As such these requests all go to the heart of one of the matters that are at issue in this action (Exhibit D). Under the caselaw cited above and cited in the Amended Response to the Notice to Admit, (See Exhibit DA where DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d Dept 1997) is cited in response to these admission requests) these Requests are palpably improper and do not have to be answered. 22. Requests No’s “3,” “ 4,” “5,” “7” (in part), “9,” “16,” “18,” and “25,” were not responded to because they all concerned the issue of whether KONG resigned or was terminated under pretext from her employment.(Exhibits DA and DB). As such these requests all go to the heart of one of the matters that are at issue in this action (Exhibit D). Under the caselaw cited above and cited in the Amended Response to the Notice to Admit, (See Exhibit DB where DeSilva v. Rothenberg, 236 A.D. 2d 508, 509 (2d Dept 1997) is cited in response to these admission requests) these Requests are palpably improper and do not have to be answered. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 23. Requests No’s “43”-“47” requested that KONG admit that tax returns filed by her between 2013 and 2017 showed that her income for those years were “entirely 1099 income.”5 (See Exhibit DB). These requests were not responded to because they were improper requests (See Exhibit DA). These requests were improper for several reasons. First, KONG has never produced any of her tax returns in this action,6 therefore Defendants and their counsel have no good faith basis to make any requests for admissions regarding what may be contained in KONG’s tax returns. Secondly, Defendants have further not made any kind of showing regarding why there would be any relevance regarding what is contained in KONG’s tax returns for years when she was not employed by the Defendants. Finally, to date Defendants have not taken KONG’s deposition. 24. Requests No’s “9,” “13,” “14,” “19”, ”22,” 35-39,” “42” and “48” were not responded to because the information requested could be obtained either through taking KONG’s deposition or another discovery device (See Exhibits DA and DB). Under the caselaw cited above and cited in the Response to the Notice to Admit, (See Exhibit DA where 32nd Avenue LLC v. Angelo Holding Corp., et. al., 134 A.D. 3d 696, 698 (2d Dept 2015) is cited in response to these admission requests) these Requests are palpably improper and do not have to be answered. 5 Defendant’s counsel does not define the term “1099 income” It ispresumed what is meant by this phrase is money earned as an independent contractor, but this is unclear. If so, these requests are additionally improper since they concern the issue of whether KONG was an independent contractor or an employee, at least for the two tax years when she was employed by the Defendants. 6 Defendant’s counsel on several occasions at Preliminary Conferences and Status Conferences has requested that KONG be ordered to produce her tax returns and on each occasion his request was rejected on the ground that he had not made a showing that the tax returns were necessary. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 B. Requests that Could Neither Be Admitted Nor Denied 25. Requests No’s “8,” 24,” “42” “48,”53,”7”54”8 and “56”9 could neither be admitted nor denied (See Exhibits DA and DB). Pursuant to CPLR 3123 (a) explanations were given regarding why these Requests could neither be admitted nor denied (Exhibit DA). This Court is respectfully referred to the Amended Response to Defendants’ Notice to Admit (attached to Defendants’ moving papers as Exhibit A) for the specific responses and explanations given for why these Requests for Admissions could neither be admitted nor denied. It should be noted that Defendants’ counsel in his moving affirmation does not explain why these responses were “contrary to the requirements of CPLR 3123.”10 26. Regarding KONG ‘s response to Request No. “24”, Defendants’ counsel conclusively states that KONG’s response “makes no sense.”11 The response actually makes perfect sense. Request No. “24” requests that KONG admit, “ Ms. Kong prepared and provided “time sheets” to the Defendant so that she could be paid for the hours actually billed.” (Exhibit DB). The response was that KONG could neither admit nor deny this statement because there was no indication in the Request regarding the point in time that is being referred to. More specifically whether this question refers to the “trial period or after the “trial period.”(Exhibit DA). At the time that Defendants originally hired KONG it was on a trial basis. At the conclusion of 7 Defendants’ counsel in his moving papers does not indicate that the response to this Request was improper but is including it because it could neither be admitted nor denied 8 See Footnote 7 above 9 See Footnote 7 above 10 See ¶ 8 of the moving affirmation of Douglas J. Pick. 11 See ¶ 9 of the moving affirmation of Douglas J. Pick 8 8 of 9 FILED: NEW YORK COUNTY CLERK 01/14/2019 05:38 PM INDEX NO. 156864/2016 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 01/14/2019 the trial period KONG became a full-time salaried employee. By reason of the foregoing, the response to this Request would depend upon whether Defendants are referring to during the trial period or after the trial period. 27. Requests, “50,” “51,” and “52,” all request that KONG admit to what is “not mentioned” in a document (Exhibit DB). These requests are all improper because the documents speak for themselves. There is no legitimate purpose in requesting that KONG admit to what is contained or not contained in a document. This information can be obtained by simply reading the document. CONCLUSION 28. As is stated above, every improper Request that was made by Defendants in their Notice to Admit was responded to with an objection giving a detailed legal basis for why the Request was improper. In their moving papers Defendants do not contest any of these explanations. 29. It is respectfully submitted that Defendants’ failure to address any of these objections clearly illustrates this motion’s lack of merit and it is unclear why defendants made this motion. 30. By reason of the foregoing Defendants’ motion should be denied in its entirety together with any further relief that this Court may deem appropriate Dated: New York, New York January 14, 2019 /s Perry S. Friedman PERRY S. FRIEDMAN 9 9 of 9