Preview
FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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DANA WAHRSAGER, AARON WAHRSAGER and Index No. 600721/2021
ERIC WAHRSAGER,
Plaintiffs,
AFFIDAVIT OF ERIC
-against- WAHRSAGER
BRETT FRANKEL, MEGAN N. FRANKEL, JAMES (Mot. #003 and #004)
MONROE and DONNA COLAVOLPE,
Return Date: November 21, 2023
Defendants.
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STATE OF NEW YORK )
)ss:
COUNTY OF NASSAU )
ERIC WAHRSAGER, being duly sworn, deposes and says:
1. I am one of the Plaintiffs in the above-referenced action and, as such, I am fully
familiar with the facts and circumstances set forth herein.
2. This affidavit is respectfully submitted in opposition to Brett Frankel and Megan N.
Frankel’s (collectively, the “Frankels”) motion for sanctions pursuant to CPLR 3126 based upon
alleged spoliation of evidence and in support of Dana Wahrsager, Aaron Wahrsager and Eric
Wahrsager’s (collectively, “Plaintiffs” or “Wahrsagers”) cross-motion for sanctions pursuant to
22 NYCRR 130-1.1 due to the Frankels’ frivolous motion.
Plaintiffs’ Home Surveillance Cameras
3. I am the President and CEO of United States Merchants Protective Company which
installs and services electronic security systems. Due to my role with United States Merchants
Protective Company, as well as experience with my own personal security cameras, I have a
personal and general knowledge of how home security systems work and specific knowledge as
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to my home security system and Aaron and Dana Wahrsager’s security system.
4. The Wahrsagers have residential grade security camera system.
5. This system, like most systems, operates on a first in first out basis; meaning, there
is a hard drive that can hold a certain amount of data and when that drive fills up, it overwrites
itself starting with the oldest recording. Because the cameras record when motion is detected, the
more activity there is, the faster the hard drive fills up and, consequently, the less time the video
footage is saved for.
6. Based on my experience checking my cameras, video footage is retained for
approximately 12-14 days. If there is very little activity, the system may retain footage for up to
60 days at most.
7. While Plaintiffs maintain that the video footage from our home security cameras is
irrelevant to this action, a brief summary of how the system is designed to function would assist
the Court in understanding the gravity of the Frankels’ ridiculous request. In short, a residential
grade security camera system is simply not designed to function in the manner in which the
Frankels are requesting. In other words, neither my, nor Aaron and Dana’s home surveillance
system has the ability to back up years’ worth of data and there is no reasonable way to globally
save the footage beyond the unit’s storage capacity. Saving years’ worth of footage in the manner
the Frankels suggest would have required an individual expend tens of thousands of dollars and
countless hours to manually back up security footage on a weekly or bi-weekly basis – while
spending additional thousands of dollars on electronic storage for the recordings.
8. The security camera systems in place today are they same systems that were
originally installed in our homes.
9. The Wahrsagers have never manually or purposefully deleted any of the recorded
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video footage.
10. In good faith, the Wahrsagers produced all security camera footage that they had
saved in response to the Frankels’ request for same – despite that such videos were not relevant.
11. Moreover, as the Frankels did not even submit their baseless request for all home
security footage dating back to March of 2020 until February 25, 2023 (see Frankel Ex. G, request
no. 10), recordings dating back to that point had already been years overwritten and therefore not
in Plaintiffs’ possession.
Background
12. The instant motion is just another example of the continuing harassment and bad
faith displayed by Brett Frankel since before this litigation was commenced nearly three years ago.
13. The dispute amongst the parties initially arose when construction was being done on
my home in or about 2019. Due to the new construction, multiple contractors and/or vendors
needed to be present at the site and began parking on the street at issue in this litigation, Randall
Place.
14. The Frankels’ wood fence, trees (or living fence) and cable and wire fence
(collectively, the “Encroachments”) are located on Randall Place, right up against the paved
portion of the street, and not on the Frankels’ lot line. Consequently, any car parking on Randall
Place adjacent to the Frankels’ property has no choice but to be parked in close proximity to the
Encroachments.
15. Rather than acknowledge that his trees were likely dying due to the fact that they
were placed directly next to a paved, yet unmaintained, road where water runs off and floods, Mr.
Frankel began blaming the Wahrsagers and/or their contractors for damage to his trees. See Frankel
Memo p. 8. The Frankels further allege that cars on the street caused damage to their wooden
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fence, and that car exhaust caused damage to his trees, although no proof of either has been
produced to date.
16. In about this same time, the paved portion of Randall Place had been ripped up by
the water company in order to complete work on the water line. The water company completed
the work, but left the paved portion of Randall Place ripped up and in disarray. Then, COVID-19
hit and it was difficult to get in touch with someone to come back and fix the road.
17. Believing that it was in everyone’s best interest to have a maintained road, and that
it would placate Mr. Frankel’s fanatical, albeit erroneous, fixation about alleged damage to his
trees and fences, the Plaintiffs were willing to put in a curb between the grassy and paved portion
of Randall Place because Plaintiffs were unable to reach someone from the Town and/or water
company to have said work completed.
18. In or about June of 2020, the Plaintiffs were finally able to get in touch with the Town
to have Randall Place restored and repaved to its condition prior to the water company’s work on
the water line.
19. It was in or around this time that the Plaintiffs were also informed by the Town that
Randall Place was a “paper street” and therefore not owned or maintained by the Town. Plaintiffs
also learned that it was partly this confusion that had caused the water company to leave Randall
Place in disarray after the water line work was completed because the Town was not paying the
water company to fix the road.
20. When the Plaintiffs informed Brett Frankel that they told their contractor not to put
in the curb because they believed the Town had agreed to do so, Mr. Frankel told Dana Wahrsager
that he “can’t wait for the town could take years” and began using threatening and intimidating
language. The relevant excerpt of the text message exchange between Dana Wahrsager and Brett
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Frankel is annexed hereto as Exhibit 1.
21. Indeed, as Mr. Frankel admits, his unreasonable response to the Plaintiffs’ successful
efforts of getting the Town to fix the road and put in a curb was to “install Belgian blocks on [his]
property and then sue [Dana] or her husband for the cost.” Affidavit of Brett Frankel dated
September 17, 2021 ¶ 14 (“Frankel Aff.”, available at NYSCEF Doc. No. 38).
22. Due to the confusion surrounding the ownership of Randall Place, and the rising
tensions with Mr. Frankel, Plaintiffs decided to get a survey of Randall Place to establish
everyone’s rights and obligations with respect to the street – particularly since the street would
need to be maintained over the years. The Plaintiffs’ survey dated June 29, 2020 demonstrated that
the Frankels’ fences and trees were actually erected on Randall Place, up to ten feet over the
Frankels’ lot line. A copy of the June 29, 2020 Survey (the “Wahrsager Survey”) is annexed hereto
as Exhibit 2.
23. The Frankels recently produced their own survey dated March 20, 2023, which
confirms that the Encroachments are located more than seven feet into the street designated on the
map as “Randall Place.” A copy of the Frankels’ March 20, 2023 encroachment survey (the
“Frankels’ Survey”, collectively with the Wahrsager Survey the “Encroachment Surveys”) is
annexed hereto as Exhibit 3.
24. In other words, Brett Frankel’s complaints about cars being too close to his
Encroachments were all self-inflicted because he placed his fences and trees in the street (and
therefore too close to the pavement) in the first instance.
25. The water company returned in or about August of 2020, repaved the roadway and
placed a curb along all of Randall Place except for the portion of Randall Place that is adjacent to
the Frankels’ property. This is because the Frankels refused to move their vehicles when the water
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company showed up to complete the work so the water company had no choice but to pave around
the Frankels’ cars.
26. The Frankels’ refusal to cooperate with the water company, despite the fact that they
agreed that a curb would be a good solution to the parties’ issues (Frankel Aff. ¶ 12) and
thereafter threat to sue the Plaintiffs for the cost of placing a curb themselves (Frankel Aff.
¶ 14), is exemplary of their unreasonable behavior and harassment that has only escalated
since the commencement of this action.
Unrelenting Harassment by Brett Frankel
27. In or about July of 2020, the Frankels began purchasing vehicles with the intention
of parking them on Randall Place to both harass Plaintiffs and to create a barrier between the
Encroachments and any cars coming down Randall Place. Frankel Aff. ¶ 17 (“it was only for the
purpose of protecting my property in response to the Wahrsager’s actions that I parked cars on
Randall Place”).
28. Adding to the Encroachments and parked cars, Brett Frankel also lined the grass with
cinderblocks. Photos evidencing the condition of the Encroachments and cinderblocks are
collectively annexed hereto as Exhibit 4.
29. While the Frankels falsely claim that they utilize the vehicles parked on Randall
Place, the inspection reports of at least one vehicle (the 2005 Ford E-Series Cargo) prove that the
van moved a total of eight miles in a year’s time – likely the distance it takes to travel to the
inspection and back to Randall Place.1 A copy of the Inspection reports dated July 15, 2022 with
1
Notably, this inspection report was found by me in the windshield of the van, and was not
produced by the Frankels. Though my attorneys tell me the Frankels have been reminded of their
ongoing obligation to turn over the inspection reports for the other vehicles, none have been
produced to date.
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136,166 miles and August 7, 2023 with 136,174 miles are annexed hereto as Exhibit 5.
30. In addition to permanently parking excess cars on Randall Place, the Frankels sought
to further harass the Plaintiffs by purchasing obnoxious sun-visors to place in the cars facing the
Plaintiffs’ homes. These sun-visors were printed with Brett Frankel’s face, Donald Trump,
Vladimir Putin, Kim Jong Un, and the characters from the television show ‘Breaking Bad’. Photos
of the cars with the sun-visors in place are annexed hereto as Exhibit 6.
31. If it weren’t enough to harass the Plaintiffs, Mr. Frankel has also intimidated Dana
and Aaron Wahrsager’s small children. This includes taking creepy and uncomfortable videos of
the children riding their bikes in front of Dana and Aaron’s home on Randall Place that the
Frankels have produced in discovery in this action. Due to the uncomfortable nature of the video,
Plaintiffs have not included same as an exhibit, but should the Court wish to view the video,
Plaintiffs can provide same to the Court in camera.
32. The Frankels have also utilized this litigation to harass the Plaintiffs. For example,
the Frankels served a Subpoena Duces Tecum and Ad Testificandum on my partner, Alicia Rispoli,
for her to testify when she was nine months pregnant. A copy of the subpoena (without the Rider)
is annexed hereto as Exhibit 7.
33. The Frankels continued to push for the deposition once the baby was born and, once
a deposition date was determined, the Frankels canceled the deposition entirely. Clearly the
subpoena, which the Frankels pushed for four months and then swiftly canceled, was not about
needing testimony from Alicia.
34. Just as recently as October 13, 2023 (the day the Frankels’ instant motion was due to
be filed), Brett Frankel placed his outdoor speakers against the edge of his fence facing the
Plaintiffs’ properties and began blasting the explicit versions of songs by Eminem. This went on
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from approximately 6:00 P.M. to 6:30 P.M. Notably, the Frankels were not in their yardatthe time
and did not appear to have guests over. While blasting the music was harassment in and of itself,
it was in particularly deplorable to utilize music riddled with curse words knowing that Dana and
Aaron have young children. A photo of the Frankels' speaker placed at the Frankels' fence facing
away from their property and towards the Wahrsagers' properties in annexed hereto as Exhibit 8.
35. By reason of the foregoing, and for the reasons set forth in the accompanying
memorandum of law, it is respectfully requested that the Frankels' motion for sanctions be denied
in its entirety and that Plaintiffs' cross-motion for sanctions against the Frankels due to this
frivolous motion be granted in its entirety.
.l Sworn ofto Novemb
before me this
er,2023.
"duy
liic- t; htJ.- 1
W
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CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b
I hereby certify pursuant to 22 NYCRR § 202.8-b that the foregoing affidavit was prepared on a
computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point Size: 12
Footnote Point Size: 12
Line spacing: Double
Word Count. The total number of words in this memorandum of law, inclusive of point headings
and footnotes and exclusive of pages containing the caption, table of contents, table of authorities,
and signature block, is 2,175.
Dated: November 8, 2023
FORCHELLI DEEGAN TERRANA LLP
333 Earle Ovington Boulevard – Suite 1010
Uniondale, New York 11533
Attorneys for Plaintiffs
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Preview
FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------X DANA WAHRSAGER, AARON WAHRSAGER and Index No. 600721/2021 ERIC WAHRSAGER, Plaintiffs, AFFIDAVIT OF ERIC -against- WAHRSAGER BRETT FRANKEL, MEGAN N. FRANKEL, JAMES (Mot. #003 and #004) MONROE and DONNA COLAVOLPE, Return Date: November 21, 2023 Defendants. -----------------------------------------------------------------------X STATE OF NEW YORK ) )ss: COUNTY OF NASSAU ) ERIC WAHRSAGER, being duly sworn, deposes and says: 1. I am one of the Plaintiffs in the above-referenced action and, as such, I am fully familiar with the facts and circumstances set forth herein. 2. This affidavit is respectfully submitted in opposition to Brett Frankel and Megan N. Frankel’s (collectively, the “Frankels”) motion for sanctions pursuant to CPLR 3126 based upon alleged spoliation of evidence and in support of Dana Wahrsager, Aaron Wahrsager and Eric Wahrsager’s (collectively, “Plaintiffs” or “Wahrsagers”) cross-motion for sanctions pursuant to 22 NYCRR 130-1.1 due to the Frankels’ frivolous motion. Plaintiffs’ Home Surveillance Cameras 3. I am the President and CEO of United States Merchants Protective Company which installs and services electronic security systems. Due to my role with United States Merchants Protective Company, as well as experience with my own personal security cameras, I have a personal and general knowledge of how home security systems work and specific knowledge as 1 1 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 to my home security system and Aaron and Dana Wahrsager’s security system. 4. The Wahrsagers have residential grade security camera system. 5. This system, like most systems, operates on a first in first out basis; meaning, there is a hard drive that can hold a certain amount of data and when that drive fills up, it overwrites itself starting with the oldest recording. Because the cameras record when motion is detected, the more activity there is, the faster the hard drive fills up and, consequently, the less time the video footage is saved for. 6. Based on my experience checking my cameras, video footage is retained for approximately 12-14 days. If there is very little activity, the system may retain footage for up to 60 days at most. 7. While Plaintiffs maintain that the video footage from our home security cameras is irrelevant to this action, a brief summary of how the system is designed to function would assist the Court in understanding the gravity of the Frankels’ ridiculous request. In short, a residential grade security camera system is simply not designed to function in the manner in which the Frankels are requesting. In other words, neither my, nor Aaron and Dana’s home surveillance system has the ability to back up years’ worth of data and there is no reasonable way to globally save the footage beyond the unit’s storage capacity. Saving years’ worth of footage in the manner the Frankels suggest would have required an individual expend tens of thousands of dollars and countless hours to manually back up security footage on a weekly or bi-weekly basis – while spending additional thousands of dollars on electronic storage for the recordings. 8. The security camera systems in place today are they same systems that were originally installed in our homes. 9. The Wahrsagers have never manually or purposefully deleted any of the recorded 2 2 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 video footage. 10. In good faith, the Wahrsagers produced all security camera footage that they had saved in response to the Frankels’ request for same – despite that such videos were not relevant. 11. Moreover, as the Frankels did not even submit their baseless request for all home security footage dating back to March of 2020 until February 25, 2023 (see Frankel Ex. G, request no. 10), recordings dating back to that point had already been years overwritten and therefore not in Plaintiffs’ possession. Background 12. The instant motion is just another example of the continuing harassment and bad faith displayed by Brett Frankel since before this litigation was commenced nearly three years ago. 13. The dispute amongst the parties initially arose when construction was being done on my home in or about 2019. Due to the new construction, multiple contractors and/or vendors needed to be present at the site and began parking on the street at issue in this litigation, Randall Place. 14. The Frankels’ wood fence, trees (or living fence) and cable and wire fence (collectively, the “Encroachments”) are located on Randall Place, right up against the paved portion of the street, and not on the Frankels’ lot line. Consequently, any car parking on Randall Place adjacent to the Frankels’ property has no choice but to be parked in close proximity to the Encroachments. 15. Rather than acknowledge that his trees were likely dying due to the fact that they were placed directly next to a paved, yet unmaintained, road where water runs off and floods, Mr. Frankel began blaming the Wahrsagers and/or their contractors for damage to his trees. See Frankel Memo p. 8. The Frankels further allege that cars on the street caused damage to their wooden 3 3 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 fence, and that car exhaust caused damage to his trees, although no proof of either has been produced to date. 16. In about this same time, the paved portion of Randall Place had been ripped up by the water company in order to complete work on the water line. The water company completed the work, but left the paved portion of Randall Place ripped up and in disarray. Then, COVID-19 hit and it was difficult to get in touch with someone to come back and fix the road. 17. Believing that it was in everyone’s best interest to have a maintained road, and that it would placate Mr. Frankel’s fanatical, albeit erroneous, fixation about alleged damage to his trees and fences, the Plaintiffs were willing to put in a curb between the grassy and paved portion of Randall Place because Plaintiffs were unable to reach someone from the Town and/or water company to have said work completed. 18. In or about June of 2020, the Plaintiffs were finally able to get in touch with the Town to have Randall Place restored and repaved to its condition prior to the water company’s work on the water line. 19. It was in or around this time that the Plaintiffs were also informed by the Town that Randall Place was a “paper street” and therefore not owned or maintained by the Town. Plaintiffs also learned that it was partly this confusion that had caused the water company to leave Randall Place in disarray after the water line work was completed because the Town was not paying the water company to fix the road. 20. When the Plaintiffs informed Brett Frankel that they told their contractor not to put in the curb because they believed the Town had agreed to do so, Mr. Frankel told Dana Wahrsager that he “can’t wait for the town could take years” and began using threatening and intimidating language. The relevant excerpt of the text message exchange between Dana Wahrsager and Brett 4 4 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 Frankel is annexed hereto as Exhibit 1. 21. Indeed, as Mr. Frankel admits, his unreasonable response to the Plaintiffs’ successful efforts of getting the Town to fix the road and put in a curb was to “install Belgian blocks on [his] property and then sue [Dana] or her husband for the cost.” Affidavit of Brett Frankel dated September 17, 2021 ¶ 14 (“Frankel Aff.”, available at NYSCEF Doc. No. 38). 22. Due to the confusion surrounding the ownership of Randall Place, and the rising tensions with Mr. Frankel, Plaintiffs decided to get a survey of Randall Place to establish everyone’s rights and obligations with respect to the street – particularly since the street would need to be maintained over the years. The Plaintiffs’ survey dated June 29, 2020 demonstrated that the Frankels’ fences and trees were actually erected on Randall Place, up to ten feet over the Frankels’ lot line. A copy of the June 29, 2020 Survey (the “Wahrsager Survey”) is annexed hereto as Exhibit 2. 23. The Frankels recently produced their own survey dated March 20, 2023, which confirms that the Encroachments are located more than seven feet into the street designated on the map as “Randall Place.” A copy of the Frankels’ March 20, 2023 encroachment survey (the “Frankels’ Survey”, collectively with the Wahrsager Survey the “Encroachment Surveys”) is annexed hereto as Exhibit 3. 24. In other words, Brett Frankel’s complaints about cars being too close to his Encroachments were all self-inflicted because he placed his fences and trees in the street (and therefore too close to the pavement) in the first instance. 25. The water company returned in or about August of 2020, repaved the roadway and placed a curb along all of Randall Place except for the portion of Randall Place that is adjacent to the Frankels’ property. This is because the Frankels refused to move their vehicles when the water 5 5 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 company showed up to complete the work so the water company had no choice but to pave around the Frankels’ cars. 26. The Frankels’ refusal to cooperate with the water company, despite the fact that they agreed that a curb would be a good solution to the parties’ issues (Frankel Aff. ¶ 12) and thereafter threat to sue the Plaintiffs for the cost of placing a curb themselves (Frankel Aff. ¶ 14), is exemplary of their unreasonable behavior and harassment that has only escalated since the commencement of this action. Unrelenting Harassment by Brett Frankel 27. In or about July of 2020, the Frankels began purchasing vehicles with the intention of parking them on Randall Place to both harass Plaintiffs and to create a barrier between the Encroachments and any cars coming down Randall Place. Frankel Aff. ¶ 17 (“it was only for the purpose of protecting my property in response to the Wahrsager’s actions that I parked cars on Randall Place”). 28. Adding to the Encroachments and parked cars, Brett Frankel also lined the grass with cinderblocks. Photos evidencing the condition of the Encroachments and cinderblocks are collectively annexed hereto as Exhibit 4. 29. While the Frankels falsely claim that they utilize the vehicles parked on Randall Place, the inspection reports of at least one vehicle (the 2005 Ford E-Series Cargo) prove that the van moved a total of eight miles in a year’s time – likely the distance it takes to travel to the inspection and back to Randall Place.1 A copy of the Inspection reports dated July 15, 2022 with 1 Notably, this inspection report was found by me in the windshield of the van, and was not produced by the Frankels. Though my attorneys tell me the Frankels have been reminded of their ongoing obligation to turn over the inspection reports for the other vehicles, none have been produced to date. 6 6 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 136,166 miles and August 7, 2023 with 136,174 miles are annexed hereto as Exhibit 5. 30. In addition to permanently parking excess cars on Randall Place, the Frankels sought to further harass the Plaintiffs by purchasing obnoxious sun-visors to place in the cars facing the Plaintiffs’ homes. These sun-visors were printed with Brett Frankel’s face, Donald Trump, Vladimir Putin, Kim Jong Un, and the characters from the television show ‘Breaking Bad’. Photos of the cars with the sun-visors in place are annexed hereto as Exhibit 6. 31. If it weren’t enough to harass the Plaintiffs, Mr. Frankel has also intimidated Dana and Aaron Wahrsager’s small children. This includes taking creepy and uncomfortable videos of the children riding their bikes in front of Dana and Aaron’s home on Randall Place that the Frankels have produced in discovery in this action. Due to the uncomfortable nature of the video, Plaintiffs have not included same as an exhibit, but should the Court wish to view the video, Plaintiffs can provide same to the Court in camera. 32. The Frankels have also utilized this litigation to harass the Plaintiffs. For example, the Frankels served a Subpoena Duces Tecum and Ad Testificandum on my partner, Alicia Rispoli, for her to testify when she was nine months pregnant. A copy of the subpoena (without the Rider) is annexed hereto as Exhibit 7. 33. The Frankels continued to push for the deposition once the baby was born and, once a deposition date was determined, the Frankels canceled the deposition entirely. Clearly the subpoena, which the Frankels pushed for four months and then swiftly canceled, was not about needing testimony from Alicia. 34. Just as recently as October 13, 2023 (the day the Frankels’ instant motion was due to be filed), Brett Frankel placed his outdoor speakers against the edge of his fence facing the Plaintiffs’ properties and began blasting the explicit versions of songs by Eminem. This went on 7 7 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 from approximately 6:00 P.M. to 6:30 P.M. Notably, the Frankels were not in their yardatthe time and did not appear to have guests over. While blasting the music was harassment in and of itself, it was in particularly deplorable to utilize music riddled with curse words knowing that Dana and Aaron have young children. A photo of the Frankels' speaker placed at the Frankels' fence facing away from their property and towards the Wahrsagers' properties in annexed hereto as Exhibit 8. 35. By reason of the foregoing, and for the reasons set forth in the accompanying memorandum of law, it is respectfully requested that the Frankels' motion for sanctions be denied in its entirety and that Plaintiffs' cross-motion for sanctions against the Frankels due to this frivolous motion be granted in its entirety. .l Sworn ofto Novemb before me this er,2023. "duy liic- t; htJ.- 1 W 8 of 9 FILED: NASSAU COUNTY CLERK 11/08/2023 02:04 PM INDEX NO. 600721/2021 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/08/2023 CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b I hereby certify pursuant to 22 NYCRR § 202.8-b that the foregoing affidavit was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 12 Footnote Point Size: 12 Line spacing: Double Word Count. The total number of words in this memorandum of law, inclusive of point headings and footnotes and exclusive of pages containing the caption, table of contents, table of authorities, and signature block, is 2,175. Dated: November 8, 2023 FORCHELLI DEEGAN TERRANA LLP 333 Earle Ovington Boulevard – Suite 1010 Uniondale, New York 11533 Attorneys for Plaintiffs 9 9 of 9