Preview
FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.: 652864/2023
PLYMOUTH STREET LLC, derivatively on behalf of
GOLD CAPITAL FUND LLC,
Plaintiff(s),
-against-
ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC,
and SIMMONS CAPITAL LLC
Defendant(s).
-and-
GOLD CAPITAL FUND LLC
Nominal Defendant.
DEFENDANTS ABRAHAM SITT AND DUMBO CAPITAL HOLDINGS LLC’S
MEMORANDUM OF LAW IN REPLY TO THEIR MOTION TO QUASH
Motion Sequence 001
Law Offices of Jason J. Rebhun, P.C.
Jason J. Rebhun
40 Wall Street, 45th Floor
New York, New York 10005
(646) 201-9392
Attorneys for Defendants
ABRAHAM SITT and DUMBO CAPITAL
HOLDINGS LLC
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Preliminary Statement
Defendants’ motion seeks to quash two subpoenas hurriedly issued by Plaintiff upon
Automatic Data Processing (“ADP”) (NYSCEF doc. 2) and upon NewCo Capital Group
(“NewCo”) (NYSCEF doc. 3), as well as for a protective order CPLR §3103(a) relieving ADP and
NewCo from responding to the subpoenas.
Plaintiff claims that on June 21, 2023, “Plaintiff served a subpoena duces tecum on ADP
and a second subpoena duces tecum on NewCo” yet the Court’s docket only reflects one Subpoena
upon NewCo which was e-filed as NYSCEF doc. 3. There is thus an issue about whether the
Subpoena on NewCo that was filed on the docket is the first or second Subpoena and Plaintiff’s
opposition fails to resolve the query.
Plaintiff claims that because “Plaintiff filed the Non-Party Subpoenas on the docket, the
Moving Defendants had sufficient notice of the discovery sought therein and thus cannot (and do
not) make out any claim of prejudice.” However, such an illogical statement has no merit. As
Defendants demonstrated in the underlying moving papers, and as the docket reveals, the
Subpoenas were filed on the docket on June 21, 2023 - before Defendants were served. In fact, the
“Affidavit of Service” on Defendant Sitt (NYSCEF doc. 4) is hardly proof of “service” at all
because the Affidavit is clear that no one answered the door and on June 27, 2023, the papers were
mailed to the address listed on the Affidavit which means that they were not guaranteed to arrive
right away.
CPLR §2303(a) provides that the party who may have an interest in quashing the subpoena
must be afforded an opportunity to do so such that the subpoenaing party must serve a copy of the
subpoena “so that it is received by such parties promptly after service on the witness and before
the production of books, papers or other things.”
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Plaintiff’s intentional timing of serving those subpoenas before service was even
effectuated upon Defendants was calculated to deprive Defendants of their opportunity to quash
those subpoenas.
Plaintiff cannot hide behind the filing of the subpoenas on the court’s docket, before service
was effectuated and before anyone knew about the case, to show compliance with CPLR §2303(a).
More, Plaintiff’s citation to CPLR §3120 highlights another obligation of Plaintiff which was
shirked. See CPLR §3120(3): “The party issuing a subpoena duces tecum as provided hereinabove
shall at the same time serve a copy of the subpoena upon all other parties…” Where is Plaintiff’s
compliance with this requirement which is identical to that of CPLR §2303(a)?
Plaintiff claims “Plaintiff’s counsel publicly filed both subpoenas so that whenever counsel
for the defendants filed an appearance, they would have notice of the subpoenas via the docket.
(Sasson Aff. ¶ 8.)” yet Plaintiff cannot also disclaim the fact that they were served before process
was effectuated. In other words, Plaintiff launched his proverbial “missile” and delayed service on
Defendants to ambush them. The CPLR contemplated such actions and enacted rules to prevent
them which Plaintiff cannot escape.
That Plaintiff feigns compliance with both of those statutory requirements by claiming to
the effect of, “the subpoenas were e-filed so you had notice of them” is a fatal admission that
Plaintiff did not comply with the CPLR provisions concerning these subpoenas.
Plaintiff’s other arguments are simply designed to distract the court from Plaintiff’s
jurisdictional problem with overcoming Defendants’ motion.
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As to Plaintiff’s claims and accusations of Defendant Sitt’s alleged “obstructive conduct,”
same are without merit and indeed, a responsive letter was sent to Plaintiff’s counsel. See Exhibit
1. Ironically, it was Plaintiff’s principal Abraham Mishaan who attempted to change profile
information on Defendant Sitt’s personal Go Daddy domain hosting account so Mr. Mishaan’s
accusations are swiftly rejected as baseless and a textbook example of the “pot calling the kettle
black.”
Defendants have also filed a dispositive motion which, if granted, would render the
subpoenas moot and academic. Such an outcome would also properly prevent the Plaintiff, the
issuer of those subpoenas, from the information it desperately seeks, so early in this process, in
order to continue its campaign against Defendants. It is the horse who pulls the cart as the cart
cannot move on its own. Until the Court decides the motion to dismiss, the third-party subpoenas
should be quashed and/or held in abeyance.
Plaintiff also does not overcome the overbroad and unlimited scope of the subpoena which
independently serves as a basis to quash.
Defendants certainly have standing to quash the subpoenas if not for that they are a/the
“party affected” and CPLR §2304 permits a party to move to quash a subpoena served on a
nonparty. See also Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 [Sup. Ct.,
Queens County, 2007], wherein the court held that the statutory requirement of service upon all
parties prior to production granted statutory standing to the parties to the action to challenge the
subpoena duces tecum.
Tellingly, Plaintiff does not address Defendants’ arguments about service on ADP’s
recipient and as to the NewCo subpoena, it is rather evident that just as Plaintiff did not comply
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with the CPLR’s rules regarding service of the Subpoena upon the Defendants, Plaintiff did not
comply with the CPLR’s rules governing service of the Subpoena upon NewCo.
In Matter of Kapon v. Koch, 23 NY3d 32, 39 (2014), the Court of Appeals requiring the
party issuing a subpoena to a non-party to demonstrate not only that the material sought was
"material and necessary" to the prosecution or defense of an action, but also that the disclosure
could not be obtained from sources other than the non-party. Kapon v. Koch, supra, at 37–38,
citing, inter alia, Kooper v. Kooper, 74 A.D.3d 6, 16–17 (2d Dep’t 2010). That was not
accomplished here, and thus the motion should be granted. Needleman v. Tornheim, 88 A.D.3d
773 (2d Dept.2011).
Accordingly, for the reasons stated herein and in support of Defendants’ underlying
motion, Defendants’ motion should be granted in its entirety.
No prior application for the relief requested herein has been made.
Dated: New York, New York
August 3, 2023
Yours, etc.
Jason J. Rebhun
__________________________________
Law Offices of Jason J. Rebhun, P.C.
Attorneys for Defendants Abraham Sitt and
Dumbo Capital Holdings LLC
40 Wall Street, 45th Floor
New York, NY 10005
(646) 201-9392
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STATEMENT AS TO WORD COUNT PURSUANT TO UNIFORM COURT RULES
SECTION 202.8b(a)
JASON J. REBHUN, being the filer of the Defendants’ Memorandum of Law in Reply,
affirms that the Affirmation contains 1,004 words which complies with Uniform Court Rules
section 202.8b(a).
Jason J. Rebhun
__________________________________
JASON J. REBHUN
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Preview
FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 652864/2023 PLYMOUTH STREET LLC, derivatively on behalf of GOLD CAPITAL FUND LLC, Plaintiff(s), -against- ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC, and SIMMONS CAPITAL LLC Defendant(s). -and- GOLD CAPITAL FUND LLC Nominal Defendant. DEFENDANTS ABRAHAM SITT AND DUMBO CAPITAL HOLDINGS LLC’S MEMORANDUM OF LAW IN REPLY TO THEIR MOTION TO QUASH Motion Sequence 001 Law Offices of Jason J. Rebhun, P.C. Jason J. Rebhun 40 Wall Street, 45th Floor New York, New York 10005 (646) 201-9392 Attorneys for Defendants ABRAHAM SITT and DUMBO CAPITAL HOLDINGS LLC 1 1 of 6 FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 Preliminary Statement Defendants’ motion seeks to quash two subpoenas hurriedly issued by Plaintiff upon Automatic Data Processing (“ADP”) (NYSCEF doc. 2) and upon NewCo Capital Group (“NewCo”) (NYSCEF doc. 3), as well as for a protective order CPLR §3103(a) relieving ADP and NewCo from responding to the subpoenas. Plaintiff claims that on June 21, 2023, “Plaintiff served a subpoena duces tecum on ADP and a second subpoena duces tecum on NewCo” yet the Court’s docket only reflects one Subpoena upon NewCo which was e-filed as NYSCEF doc. 3. There is thus an issue about whether the Subpoena on NewCo that was filed on the docket is the first or second Subpoena and Plaintiff’s opposition fails to resolve the query. Plaintiff claims that because “Plaintiff filed the Non-Party Subpoenas on the docket, the Moving Defendants had sufficient notice of the discovery sought therein and thus cannot (and do not) make out any claim of prejudice.” However, such an illogical statement has no merit. As Defendants demonstrated in the underlying moving papers, and as the docket reveals, the Subpoenas were filed on the docket on June 21, 2023 - before Defendants were served. In fact, the “Affidavit of Service” on Defendant Sitt (NYSCEF doc. 4) is hardly proof of “service” at all because the Affidavit is clear that no one answered the door and on June 27, 2023, the papers were mailed to the address listed on the Affidavit which means that they were not guaranteed to arrive right away. CPLR §2303(a) provides that the party who may have an interest in quashing the subpoena must be afforded an opportunity to do so such that the subpoenaing party must serve a copy of the subpoena “so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things.” 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 Plaintiff’s intentional timing of serving those subpoenas before service was even effectuated upon Defendants was calculated to deprive Defendants of their opportunity to quash those subpoenas. Plaintiff cannot hide behind the filing of the subpoenas on the court’s docket, before service was effectuated and before anyone knew about the case, to show compliance with CPLR §2303(a). More, Plaintiff’s citation to CPLR §3120 highlights another obligation of Plaintiff which was shirked. See CPLR §3120(3): “The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties…” Where is Plaintiff’s compliance with this requirement which is identical to that of CPLR §2303(a)? Plaintiff claims “Plaintiff’s counsel publicly filed both subpoenas so that whenever counsel for the defendants filed an appearance, they would have notice of the subpoenas via the docket. (Sasson Aff. ¶ 8.)” yet Plaintiff cannot also disclaim the fact that they were served before process was effectuated. In other words, Plaintiff launched his proverbial “missile” and delayed service on Defendants to ambush them. The CPLR contemplated such actions and enacted rules to prevent them which Plaintiff cannot escape. That Plaintiff feigns compliance with both of those statutory requirements by claiming to the effect of, “the subpoenas were e-filed so you had notice of them” is a fatal admission that Plaintiff did not comply with the CPLR provisions concerning these subpoenas. Plaintiff’s other arguments are simply designed to distract the court from Plaintiff’s jurisdictional problem with overcoming Defendants’ motion. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 As to Plaintiff’s claims and accusations of Defendant Sitt’s alleged “obstructive conduct,” same are without merit and indeed, a responsive letter was sent to Plaintiff’s counsel. See Exhibit 1. Ironically, it was Plaintiff’s principal Abraham Mishaan who attempted to change profile information on Defendant Sitt’s personal Go Daddy domain hosting account so Mr. Mishaan’s accusations are swiftly rejected as baseless and a textbook example of the “pot calling the kettle black.” Defendants have also filed a dispositive motion which, if granted, would render the subpoenas moot and academic. Such an outcome would also properly prevent the Plaintiff, the issuer of those subpoenas, from the information it desperately seeks, so early in this process, in order to continue its campaign against Defendants. It is the horse who pulls the cart as the cart cannot move on its own. Until the Court decides the motion to dismiss, the third-party subpoenas should be quashed and/or held in abeyance. Plaintiff also does not overcome the overbroad and unlimited scope of the subpoena which independently serves as a basis to quash. Defendants certainly have standing to quash the subpoenas if not for that they are a/the “party affected” and CPLR §2304 permits a party to move to quash a subpoena served on a nonparty. See also Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 [Sup. Ct., Queens County, 2007], wherein the court held that the statutory requirement of service upon all parties prior to production granted statutory standing to the parties to the action to challenge the subpoena duces tecum. Tellingly, Plaintiff does not address Defendants’ arguments about service on ADP’s recipient and as to the NewCo subpoena, it is rather evident that just as Plaintiff did not comply 4 4 of 6 FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 with the CPLR’s rules regarding service of the Subpoena upon the Defendants, Plaintiff did not comply with the CPLR’s rules governing service of the Subpoena upon NewCo. In Matter of Kapon v. Koch, 23 NY3d 32, 39 (2014), the Court of Appeals requiring the party issuing a subpoena to a non-party to demonstrate not only that the material sought was "material and necessary" to the prosecution or defense of an action, but also that the disclosure could not be obtained from sources other than the non-party. Kapon v. Koch, supra, at 37–38, citing, inter alia, Kooper v. Kooper, 74 A.D.3d 6, 16–17 (2d Dep’t 2010). That was not accomplished here, and thus the motion should be granted. Needleman v. Tornheim, 88 A.D.3d 773 (2d Dept.2011). Accordingly, for the reasons stated herein and in support of Defendants’ underlying motion, Defendants’ motion should be granted in its entirety. No prior application for the relief requested herein has been made. Dated: New York, New York August 3, 2023 Yours, etc. Jason J. Rebhun __________________________________ Law Offices of Jason J. Rebhun, P.C. Attorneys for Defendants Abraham Sitt and Dumbo Capital Holdings LLC 40 Wall Street, 45th Floor New York, NY 10005 (646) 201-9392 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/03/2023 03:11 PM INDEX NO. 652864/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/03/2023 STATEMENT AS TO WORD COUNT PURSUANT TO UNIFORM COURT RULES SECTION 202.8b(a) JASON J. REBHUN, being the filer of the Defendants’ Memorandum of Law in Reply, affirms that the Affirmation contains 1,004 words which complies with Uniform Court Rules section 202.8b(a). Jason J. Rebhun __________________________________ JASON J. REBHUN 6 6 of 6