Preview
FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BOARD OF MANAGERS OF 570 BROOME
CONDOMINIUM, Index No. 650950/2023
Plaintiff, Motion Seq. 002
-against- Hon. Arlene P. Bluth
SOHO BROOME CONDOS LLC, YNC EQUITY REPLY AFFIRMATION OF
PARTNERS LLC, MURAT AGIRNASLI, ERDEN JARED E. PAIOFF IN
M. ARKAN, SELIM AKYUZ, HILMI ULGUR FURTHER SUPPORT OF
AYDIN, ERMAN AGIRNASLI, AGIME GROUP MOTION
LLC, “JOHN DOE” Nos. 1 through 10, and “JANE
DOE” Nos. 1 through 10, said names being fictitious
and unknown to plaintiff but intending to be the
recipients of any voidable transactions made by SOHO
BROOME CONDOS LLC,
Defendants.
JARED E. PAIOFF, an attorney duly admitted to practice law before the courts of the
State of New York, affirms the following to be true under the penalties of perjury:
1. I am a member in good standing of the bar of the State of New York and a partner
of the law firm of Schwartz Sladkus Reich Greenberg Atlas LLP, attorneys for Plaintiff. 1 I am
fully familiar with the matters set forth below.
2. I respectfully submit this Reply Affirmation in further support of Plaintiff’s motion
for an Order:
(i) Pursuant to CPLR § 3124, compelling Sponsor Defendants to appear for
depositions as ordered by this Court on October 4, 2023; and/or
1
Except where otherwise indicated, capitalized terms are used as defined in the Affirmation of Jared E.
Paioff, dated December 26, 2023.
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(ii) Pursuant to CPLR § 3126, dismissing and/or striking the answer of Sponsor
Defendants; and/or
(iii) Precluding Sponsor Defendants from offering any evidence in support of
their defenses pursuant to CPLR § 3126[2]; and
(iv) Granting Plaintiff such other and further relief as this Court deems just,
proper, and equitable.
3. In opposing Plaintiff’s motion, Sponsor Defendants argue that the motion should
be denied because Plaintiff’s initial discovery production was “insufficient” and because Plaintiff’s
counsel failed to meet and confer, making the instant motion procedurally defective.
4. These arguments must be rejected. First, as stated in Plaintiff’s motion papers,
whether Plaintiff’s document production needs to be supplemented does not provide justification
for Sponsor Defendants to ignore their own discovery obligations or deadlines set by the Court.
5. Sponsor Defendants’ claim that they “cannot reasonably by required to prepare and
appear for depositions until Plaintiff has first met its obligations under the Discovery Stipulation”
is unpersuasive. Sponsor Defendants do not and should not need additional discovery from
Plaintiff to merely schedule the depositions.
6. Sponsor Defendants’ dissatisfaction with Plaintiff’s initial discovery production
does not provide an excuse or justification for their failure to provide dates for depositions under
the Discovery Stipulation. Sponsor Defendants cite their own Deficiency Letter as support for their
argument that their delay in providing deposition dates is warranted. See Paioff Aff., Exh. 7.
(NYSCEF Doc. No. 60). Sponsor Defendants also argue that case law supports their argument, but
Courts have held that parties may use both written interrogatories and depositions, and “if the
device first chosen does not adequately disclose all evidence material and necessary to the
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prosecution or defense of the action (CPLR 3101), then the other available remedy may be
utilized.” Katz v. Posner, 258 N.Y.S.2d 508, 510 (2d Dept 1965). Sponsor Defendants’ position is
that they will provide dates for depositions once they are satisfied with Plaintiff’s responses and
production. That is not the standard, and this line of reasoning has been rejected by courts. See
MOPS Med. Supply v. Geico Ins. Co., 777 N.Y.S.2d 264, 266 (Civ. Ct. 2004) (“Plaintiff has failed,
however, to show why defendant's failure to respond to interrogatories would excuse its failure to
attend a deposition or serve as a defense to a motion to compel”).
7. Clearly, any claim by Sponsor Defendants that additional discovery by Plaintiff is
necessary for Sponsor Defendants to provide dates for depositions is illogical and belied by case
law. Sponsor Defendants’ claim that they will provide deposition dates once they are satisfied with
Plaintiff’s document production has caused costly delays to this litigation and should therefore be
rejected. Put bluntly, it is an excuse to further delay adjudication of this case against Sponsor and
individuals, at least one of whose apartment in the Condominium was recently searched by the
FBI.
8. Second, Sponsor Defendants’ argument that Plaintiff’s motion is procedurally
defective because of the failure of counsel to meet and confer must also be rejected.
9. As stated in Plaintiff’s motion papers, I asked Sponsor Defendants’ counsel to
schedule dates for depositions, pursuant to the Discovery Stipulation, on December 5th, December
7th, and December 13th. See Paioff Aff., Exh. 5 (NYSCEF Doc. No. 58).
10. As demonstrated in the e-mails, I attempted to meet and confer with Sponsor
Defendants’ counsel to discuss the deposition schedule, but my efforts were to no avail as they
were largely ignored. Id.
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11. In further compliance with 22 NYCRR 202.7(a), and in an effort to comply with
the discovery obligations under the Discovery Stipulation, I sent a Good Faith Letter to Sponsor
Defendants’ attorney on December 19, 2023. See Paioff Aff., Exh. 6 (NYSCEF Doc. No. 59). In
this letter, I stated that if I did not “receive dates for Defendants’ depositions by Friday 22, 2023,
Plaintiff will seek affirmative relief from the Court…” Id.
12. Again, this Good Faith Letter was ignored by Sponsor Defendants’ counsel.
13. Sponsor Defendants next attempt to argue that Plaintiff’s motion is defective
because of the failure to have an in-person or phone conference with Sponsor Defendants’ counsel
to discuss the discovery dispute.
14. As an initial matter, the case law cited by Sponsor Defendants in support of this
untenable position is factually inapposite to the facts of this case and not binding on this Court.
Contrary to Sponsor Defendants’ contention, 22 NYCRR 202.20-f(b) also states that “If the
moving party was unable to conduct a conference due to the unreasonable failure or refusal of an
adverse party to participate, then such moving party shall, in an affidavit or affirmation, detail the
efforts made by the moving party to obtain such a conference and set forth the responses received.”
N.Y. Comp. Codes R. & Regs. tit. 22, § 202.20-f. As stated in my Affirmation, I attempted to
contact Sponsor Defendants’ counsel on several occasions to schedule depositions. See Paioff Aff.,
Exh. 5 (NYSCEF Doc. No. 58). On December 8, 2023, Sponsor Defendants’ counsel advised “I
will get back to you about outstanding discovery issues and depositions next week.” Id. Sponsor
Defendants’ counsel did not get back to me about outstanding discovery issues or depositions the
following week, nor did she respond to my December 13, 2023 follow-up email. Id. Clearly,
Plaintiff was unable to schedule a conference, as Sponsor Defendants’ counsel was unresponsive.
Therefore, Plaintiff’s motion complies with 22 NYCRR 202.20-f and Sponsor Defendants’ claim
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that the instant motion is procedurally defective should be rejected.
15. As of the filing of this Affirmation, Sponsor Defendants have still failed to provide
dates for their depositions.
16. Moreover, Plaintiff has unquestionably suffered prejudice as a result of Sponsor
Defendants’ failure to comply with their discovery obligations. Sponsor Defendants’ failure to
provide dates for depositions has prevented Plaintiff from obtaining evidence relevant to this action
that lies exclusively within Sponsor Defendants’ knowledge. As such, Sponsor Defendants have
materially impaired Plaintiff’s ability to prosecute its claims.
17. Based on the foregoing, and for the reasons set forth in Plaintiff’s initial moving
papers, Plaintiff’s motion should be granted in its entirety.
WHEREAS, I affirm this 18th day of January, 2024, under the penalties of perjury under
the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I
understand that this document may be filed in an action or proceeding in a court of law.
Dated: New York, New York
January 18, 2024
__________________________________
JARED E. PAIOFF
/2206300
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Preview
FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BOARD OF MANAGERS OF 570 BROOME CONDOMINIUM, Index No. 650950/2023 Plaintiff, Motion Seq. 002 -against- Hon. Arlene P. Bluth SOHO BROOME CONDOS LLC, YNC EQUITY REPLY AFFIRMATION OF PARTNERS LLC, MURAT AGIRNASLI, ERDEN JARED E. PAIOFF IN M. ARKAN, SELIM AKYUZ, HILMI ULGUR FURTHER SUPPORT OF AYDIN, ERMAN AGIRNASLI, AGIME GROUP MOTION LLC, “JOHN DOE” Nos. 1 through 10, and “JANE DOE” Nos. 1 through 10, said names being fictitious and unknown to plaintiff but intending to be the recipients of any voidable transactions made by SOHO BROOME CONDOS LLC, Defendants. JARED E. PAIOFF, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am a member in good standing of the bar of the State of New York and a partner of the law firm of Schwartz Sladkus Reich Greenberg Atlas LLP, attorneys for Plaintiff. 1 I am fully familiar with the matters set forth below. 2. I respectfully submit this Reply Affirmation in further support of Plaintiff’s motion for an Order: (i) Pursuant to CPLR § 3124, compelling Sponsor Defendants to appear for depositions as ordered by this Court on October 4, 2023; and/or 1 Except where otherwise indicated, capitalized terms are used as defined in the Affirmation of Jared E. Paioff, dated December 26, 2023. 1 of 5 FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024 (ii) Pursuant to CPLR § 3126, dismissing and/or striking the answer of Sponsor Defendants; and/or (iii) Precluding Sponsor Defendants from offering any evidence in support of their defenses pursuant to CPLR § 3126[2]; and (iv) Granting Plaintiff such other and further relief as this Court deems just, proper, and equitable. 3. In opposing Plaintiff’s motion, Sponsor Defendants argue that the motion should be denied because Plaintiff’s initial discovery production was “insufficient” and because Plaintiff’s counsel failed to meet and confer, making the instant motion procedurally defective. 4. These arguments must be rejected. First, as stated in Plaintiff’s motion papers, whether Plaintiff’s document production needs to be supplemented does not provide justification for Sponsor Defendants to ignore their own discovery obligations or deadlines set by the Court. 5. Sponsor Defendants’ claim that they “cannot reasonably by required to prepare and appear for depositions until Plaintiff has first met its obligations under the Discovery Stipulation” is unpersuasive. Sponsor Defendants do not and should not need additional discovery from Plaintiff to merely schedule the depositions. 6. Sponsor Defendants’ dissatisfaction with Plaintiff’s initial discovery production does not provide an excuse or justification for their failure to provide dates for depositions under the Discovery Stipulation. Sponsor Defendants cite their own Deficiency Letter as support for their argument that their delay in providing deposition dates is warranted. See Paioff Aff., Exh. 7. (NYSCEF Doc. No. 60). Sponsor Defendants also argue that case law supports their argument, but Courts have held that parties may use both written interrogatories and depositions, and “if the device first chosen does not adequately disclose all evidence material and necessary to the 2 2 of 5 FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024 prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized.” Katz v. Posner, 258 N.Y.S.2d 508, 510 (2d Dept 1965). Sponsor Defendants’ position is that they will provide dates for depositions once they are satisfied with Plaintiff’s responses and production. That is not the standard, and this line of reasoning has been rejected by courts. See MOPS Med. Supply v. Geico Ins. Co., 777 N.Y.S.2d 264, 266 (Civ. Ct. 2004) (“Plaintiff has failed, however, to show why defendant's failure to respond to interrogatories would excuse its failure to attend a deposition or serve as a defense to a motion to compel”). 7. Clearly, any claim by Sponsor Defendants that additional discovery by Plaintiff is necessary for Sponsor Defendants to provide dates for depositions is illogical and belied by case law. Sponsor Defendants’ claim that they will provide deposition dates once they are satisfied with Plaintiff’s document production has caused costly delays to this litigation and should therefore be rejected. Put bluntly, it is an excuse to further delay adjudication of this case against Sponsor and individuals, at least one of whose apartment in the Condominium was recently searched by the FBI. 8. Second, Sponsor Defendants’ argument that Plaintiff’s motion is procedurally defective because of the failure of counsel to meet and confer must also be rejected. 9. As stated in Plaintiff’s motion papers, I asked Sponsor Defendants’ counsel to schedule dates for depositions, pursuant to the Discovery Stipulation, on December 5th, December 7th, and December 13th. See Paioff Aff., Exh. 5 (NYSCEF Doc. No. 58). 10. As demonstrated in the e-mails, I attempted to meet and confer with Sponsor Defendants’ counsel to discuss the deposition schedule, but my efforts were to no avail as they were largely ignored. Id. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024 11. In further compliance with 22 NYCRR 202.7(a), and in an effort to comply with the discovery obligations under the Discovery Stipulation, I sent a Good Faith Letter to Sponsor Defendants’ attorney on December 19, 2023. See Paioff Aff., Exh. 6 (NYSCEF Doc. No. 59). In this letter, I stated that if I did not “receive dates for Defendants’ depositions by Friday 22, 2023, Plaintiff will seek affirmative relief from the Court…” Id. 12. Again, this Good Faith Letter was ignored by Sponsor Defendants’ counsel. 13. Sponsor Defendants next attempt to argue that Plaintiff’s motion is defective because of the failure to have an in-person or phone conference with Sponsor Defendants’ counsel to discuss the discovery dispute. 14. As an initial matter, the case law cited by Sponsor Defendants in support of this untenable position is factually inapposite to the facts of this case and not binding on this Court. Contrary to Sponsor Defendants’ contention, 22 NYCRR 202.20-f(b) also states that “If the moving party was unable to conduct a conference due to the unreasonable failure or refusal of an adverse party to participate, then such moving party shall, in an affidavit or affirmation, detail the efforts made by the moving party to obtain such a conference and set forth the responses received.” N.Y. Comp. Codes R. & Regs. tit. 22, § 202.20-f. As stated in my Affirmation, I attempted to contact Sponsor Defendants’ counsel on several occasions to schedule depositions. See Paioff Aff., Exh. 5 (NYSCEF Doc. No. 58). On December 8, 2023, Sponsor Defendants’ counsel advised “I will get back to you about outstanding discovery issues and depositions next week.” Id. Sponsor Defendants’ counsel did not get back to me about outstanding discovery issues or depositions the following week, nor did she respond to my December 13, 2023 follow-up email. Id. Clearly, Plaintiff was unable to schedule a conference, as Sponsor Defendants’ counsel was unresponsive. Therefore, Plaintiff’s motion complies with 22 NYCRR 202.20-f and Sponsor Defendants’ claim 4 4 of 5 FILED: NEW YORK COUNTY CLERK 01/18/2024 06:31 PM INDEX NO. 650950/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/18/2024 that the instant motion is procedurally defective should be rejected. 15. As of the filing of this Affirmation, Sponsor Defendants have still failed to provide dates for their depositions. 16. Moreover, Plaintiff has unquestionably suffered prejudice as a result of Sponsor Defendants’ failure to comply with their discovery obligations. Sponsor Defendants’ failure to provide dates for depositions has prevented Plaintiff from obtaining evidence relevant to this action that lies exclusively within Sponsor Defendants’ knowledge. As such, Sponsor Defendants have materially impaired Plaintiff’s ability to prosecute its claims. 17. Based on the foregoing, and for the reasons set forth in Plaintiff’s initial moving papers, Plaintiff’s motion should be granted in its entirety. WHEREAS, I affirm this 18th day of January, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. Dated: New York, New York January 18, 2024 __________________________________ JARED E. PAIOFF /2206300 5 5 of 5