Preview
FILED: KINGS COUNTY CLERK 11/17/2016 01:44 AM INDEX NO. 504149/2016
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 11/17/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
OUR PLACE IN NY, INC. d/b/a MAGENU Index No.: 504149/2016
Part 36 (Justice Bernard J. Graham)
Plaintiff, Motion Seq. #001
v.
ON TIME STUDIOS NY, INC, ON TIME
STUDIOS, LLC, MENDY LEONORVITZ,
NACHMAN TAUB, RAIZY POLLACK
AND. & JOHN DOES 1-10,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR
CONTEMPT AND/OR TO COMPEL DEFENDANTS’ DISCOVERY OBLIGATIONS
Asher C. Gulko, Esq.
GULKO SCHWED LLP
44 Wall Street, Second Floor
New York, New York 1005
212.500.1312
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ……………………………………………………...……….. 4
RELEVANT FACTS ……………………………………………………………….….………. 4
ARGUMENT …………………………………………………………………….…....……….. 5
I. THIS COURT SHOULD HOLD DEFENDANTS IN CONTEMPT FOR THEIR
WILLFUL DISREGARD AND VIOLATION OF THIS COURT’S ORDER ….… 5
II. THE COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THIS
COURT’S ORDER ………………………………………………………………… 7
CONCLUSION …………………………………………………………….………………….. 8
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TABLE OF AUTHORITIES
Cases Page No.
Borgenicht v. Bloch, 280 A.D.2d 306, 307 (1st Dep't 2001)…………………………….... 7
Richards v. Great All. & Pac. Tea Co., Inc., 2010 N.Y. Misc. LEXIS 2705 (N.Y. Sup. Ct.
Mar.15, 2010) .……………………………….......…………………………………..... 8
Rocco v. Family Foot Ctr., 942 N.Y.S.2d 607 (N.Y. App. Div. 2nd Dep't 2012) ……........ 8
Greuling v. Breakey, 56 A.D.2d 540, 541 (N.Y. App. Div. 1st Dep't 1977) ……................ 8
In re T./P. Children, 165 Misc. 2d 333, 335 (N.Y. Fam. Ct. 1995) ……............................. 8
Statutes Page No.
CPLR § 2308.…………………………………………………………………….......…… 4, 6
CPLR § 3101.…………………………………………………………………….......…… 4, 6
CPLR § 3106.…………………………………………………………………….......…… 4, 5
CPLR § 3120.…………………………………………………………………….......…… 4, 6
CPLR § 3124.…………………………………………………………………….......…… 4, 7, 8
CPLR §3126.…………………………………………………………………….......…… 8
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PRELIMINARY STATEMENT
Plaintiff, by its undersigned counsel, respectfully submits this Memorandum of Law
pursuant to New York Civil Practice and Rules (“C.P.L.R.”) §§ 2308, 3101, 3106, 3120, and 3124
to: (i) hold defendants, On Time Studios NY, Inc., On Time Studios, LLC, Mendy Leonorvitz,
Nacham Taub, and Raizy Pollack (collectively “Defendants”) in civil contempt of court due to
their deliberate and persistent disobedience of the subpoenas and document requests issued in this
action; (ii) compel Defendants Mendy Leonorvitz, Nacham Taub, and Raizy Pollack to appear for
their depositions; (iii) compel Defendants to respond to the requests for production of documents
served upon them; and (iv) award Plaintiff the legal fees and expenses it has occurred in bringing
this motion.
Despite being subpoenaed, and despite numerous accommodations having been made in
order to avoid the need for this motion, Defendants have failed and refused to appear for their
depositions and should be held in contempt of court accordingly and required to reimburse
Plaintiff for all costs and fees incurred in connection with the Plaintiff’s efforts to depose them
including but not limited to the preparation of the instant motion.
RELEVANT FACTS
On or about May 19, 2016, Plaintiff issued a deposition notice to Defendants setting the
depositions for Defendants Leonorvitz, Taub, and Pollack for June 1, 2016, June 10, 2016, and
June 14, 2016, respectively. On or about May 16, 2016, Plaintiff re-issued discovery demands
requesting that Defendants produce certain documents and answer interrogatories by June 8, 2016.
On or about June 07, 2016, your undersigned followed up with Defendants’ counsel on the status
of discovery demands and notices of depositions via e-mail. Defendants’ counsel responded that
his clients were “addressing the demands,” but no production was ever made. On or about August
08, 2016, Defendants’ counsel advised that “it looks likely we will settle” so Plaintiffs held off on
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pursuing discovery for a short while. After settlement discussions did not materialize, on or about
August 23, 2016, Plaintiff re-set the depositions for Leonorvitz, Taub, and Pollack for September
23rd, 2016, September 26, 2016, and September 28, 2016, respectively. Plaintiff also issued a
second request for production, setting the deadline as September 22, 2016. On or about September
12, your undersigned followed up with Defendants’ counsel once more to check on the status of
depositions and discovery demands. Defendants’ counsel responded requesting that Plaintiffs
“[p]lease wait until Monday” because Defendants “are going to have [a settlement] offer.”
However, despite promises of a forthcoming settlement and plan to settle, such discussions
were of no merit. Plaintiffs never received any such offer from Defendants. On or about September
26, 2016, your undersigned contacted Defendants’ counsel stating that he assumed the deposition
of Ms. Pollack was not going forward given the Defendants non-responsiveness, but that he
expected to continue with the remaining scheduled deposition and to move discovery forward.
Plaintiff received no response from Defendants’ counsel and on or about October 10, 2016, your
undersigned contacted Defendants’ counsel to check on the status of the pending requests. To date,
Plaintiff has yet to receive any document production, settlement offer, or any response to
reschedule depositions. After such extensive back and forth with Defendants, Plaintiff now request
the Court’s intervention in this matter.
ARGUMENT
I. THIS COURT SHOULD HOLD DEFENDANTS IN CONTEMPT FOR THEIR
WILLFUL VIOLATION OF A JUDICIAL DEPOSITION NOTICE
It is well settled law that “[a]fter an action is commenced, any party may take the testimony
of any person by deposition upon oral or written questions.” C.P.L.R. § 3106(a). It is also well
settled law that a party has the right to notice any other party for a deposition or to issue any other
party a request for production. CPLR § 3120. Furthermore, under C.P.L.R. § 2308(a), failure to
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comply with a ‘judicial’ subpoena “shall be punishable as a contempt of court.” C.P.L.R. §
2308(a).
Furthermore, “[a] judicial subpoena, as used in the context of CPLR 2308(a), is any
subpoena issued by a judge, clerk, or officer of the court (including an attorney representing a
party to an action pending in court) in connection with a judicial proceeding.” NY CLS CPLR §
2308 (Commentary on ‘When Contempt May Be Used To Enforce Attorney-Issued Judicial
Subpoena’) (citing Moore v. Sunshine, 126 Misc. 2d 284, 482 N.Y.S.2d 201 (Sup. Ct. New York
County 1984)) (emphasis added). It is well accepted that CPLR 2308 (a) pertains to subpoenas
requiring an individual’s attendance at a deposition. Id. (citing Bankers Trust Co. v. Braten, 194
A.D.2d 378, 598 N.Y.S.2d 498 (1st Dep’t 1993)). C.P.L.R. § 2308(a) further establishes that a
subpoenaed individual “shall also be liable to the person on whose behalf the subpoena was issued
for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the
failure to comply.” Id. at subsection (a). Finally, C.P.L.R. §3101 requires that: “There shall be full
disclosure of all matter material and necessary in the prosecution or defense of an action. . . .”
Consequently, it is fair to state that the intention of C.P.L.R. section 3101 is that parties be given
a fair opportunity to discover any and all information that is intended to lead to material and
necessary evidence.
Here, Plaintiff’s counsel issued Defendants a deposition notice on several separate
occasions and attempted to resolve the matter with Defendants counsel for a continued period of
time before now seeking the Court’s intervention. Defendants’ non-compliance indicates a clear
violation OF C.P.L.R. sections 3106 and 3120. Furthermore, Plaintiffs also issued a production
request on at least two separate occasions and Defendants’ non-compliance with that indicates a
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clear violation of C.P.L.R section 3101. Therefore, it is clear that the Court has authority under
C.P.L.R. section 2308 to hold Defendants in contempt.
Defendants’ failure to abide by the deposition notices and production requests has
prejudiced the rights of Plaintiff by prevented it from undertaking a full and fair inquiry into certain
essential factors to maintain this action. Borgenicht v. Bloch, 280 A.D.2d 306, 307 (1st Dep't
2001). Defendants’ noncompliance has also cost the Plaintiffs to incur various expenses they
would not otherwise have incurred, such as the costs associated with this motion.
After a number of repeated, yet unsuccessful efforts to solve the present matter without
seeking this Court’s intervention, Plaintiff now respectfully requests that this Court hold
Defendants in contempt for willfully violating a judicial subpoena and also penalize Defendants
for the costs arising from their failure to comply with said subpoena, including the costs associated
with the present motion.
II. THE COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THE
DEPOSITION NOTICES AND PRODUCTION REQUESTS
The Court should compel Defendants to comply with the deposition notices and production
requests issued by Plaintiff on several occasions, as stated above, and it should order defendants,
Leonorvitz, Taub, and Pollack to each attend a court-scheduled deposition.
C.P.L.R. § 3124 states in pertinent part: “If a person fails to respond to or comply with any
requests, notice, interrogatory, demand, question or order under this article . . . the parties seeking
disclosure may move to compel compliance or a response.” C.P.L.R. §3124. It is well settled law,
that when a party fails to make itself available for a deposition, the Court has the power to issue
an order requiring attendance at the deposition. C.P.L.R. §3124; Richards v. Great All. & Pac. Tea
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Co., Inc., 2010 N.Y. Misc. LEXIS 2705 (N.Y. Sup. Ct. Mar. 15, 2010) (ordering that a produce
manager appear at a deposition pursuant to C.P.L.R. §3124); Rocco v Family Foot Ctr., 942
N.Y.S.2d 607 (N.Y. App. Div. 2nd Dep't 2012) (granting a motion to compel an individual to
appear at a deposition).
The Court further has the power to preclude said party from testifying at trial, based on its
non-compliance during discovery. See, Greuling v. Breakey, 56 A.D.2d 540, 541 (N.Y. App. Div.
1st Dep't 1977) (explaining that under C.P.L.R. §3126, a Court may preclude certain witnesses
from testifying at trial due to their noncompliance with discovery); see also, In re T./P. Children,
165 Misc. 2d 333, 335 (N.Y. Fam. Ct. 1995) (holding “that the respondent was not first required
to move pursuant to C.P.L.R. §3124 to enforce her C.P.L.R. §3120 discovery demands but could
apply directly, pursuant to C.P.L.R. §3126, for an order to compel with sanctions”).
Here, Defendants have ignored their obligations under the C.P.L.R. and have proven
without doubt that their sole strategy in this case is to delay any progress whatsoever and to make
the litigation as expensive as possible—in time and money—for Plaintiffs. Discovery in this case
will be impossible unless the Court intervenes and demands Defendants to comply with the
specific discovery requested by Plaintiffs. Accordingly, Plaintiff respectfully requests that the
Court enter such an order:
CONCLUSION
WHEREFORE, in light of the foregoing the Court should grant Plaintiff’s instant motion
in its entirety and determine Defendants to be in contempt of the rules and laws that govern this
court and the discovery process. In addition, the Court should compel the depositions for
Leonorvitz, Taub, and Pollack to be held in the next twenty (20) days, and grant Plaintiff all other
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relief it deems necessary and proper, including costs and fees in associated with having to bring
the instant motion.
Dated: November 16, 2016
New York, New York
Respectfully Submitted,
GULKO SCHWED LLP
/s Asher Gulko
_____________________
Asher C. Gulko, Esq.
David J. Fryman, Esq.
44 Wall Street, Second Floor
New York, New York 10005
T: 212.500.1312
F: 212.678.0405
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Preview
FILED: KINGS COUNTY CLERK 11/17/2016 01:44 AM INDEX NO. 504149/2016 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 11/17/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS OUR PLACE IN NY, INC. d/b/a MAGENU Index No.: 504149/2016 Part 36 (Justice Bernard J. Graham) Plaintiff, Motion Seq. #001 v. ON TIME STUDIOS NY, INC, ON TIME STUDIOS, LLC, MENDY LEONORVITZ, NACHMAN TAUB, RAIZY POLLACK AND. & JOHN DOES 1-10, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR CONTEMPT AND/OR TO COMPEL DEFENDANTS’ DISCOVERY OBLIGATIONS Asher C. Gulko, Esq. GULKO SCHWED LLP 44 Wall Street, Second Floor New York, New York 1005 212.500.1312 1 of 9 TABLE OF CONTENTS PRELIMINARY STATEMENT ……………………………………………………...……….. 4 RELEVANT FACTS ……………………………………………………………….….………. 4 ARGUMENT …………………………………………………………………….…....……….. 5 I. THIS COURT SHOULD HOLD DEFENDANTS IN CONTEMPT FOR THEIR WILLFUL DISREGARD AND VIOLATION OF THIS COURT’S ORDER ….… 5 II. THE COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THIS COURT’S ORDER ………………………………………………………………… 7 CONCLUSION …………………………………………………………….………………….. 8 2 2 of 9 TABLE OF AUTHORITIES Cases Page No. Borgenicht v. Bloch, 280 A.D.2d 306, 307 (1st Dep't 2001)…………………………….... 7 Richards v. Great All. & Pac. Tea Co., Inc., 2010 N.Y. Misc. LEXIS 2705 (N.Y. Sup. Ct. Mar.15, 2010) .……………………………….......…………………………………..... 8 Rocco v. Family Foot Ctr., 942 N.Y.S.2d 607 (N.Y. App. Div. 2nd Dep't 2012) ……........ 8 Greuling v. Breakey, 56 A.D.2d 540, 541 (N.Y. App. Div. 1st Dep't 1977) ……................ 8 In re T./P. Children, 165 Misc. 2d 333, 335 (N.Y. Fam. Ct. 1995) ……............................. 8 Statutes Page No. CPLR § 2308.…………………………………………………………………….......…… 4, 6 CPLR § 3101.…………………………………………………………………….......…… 4, 6 CPLR § 3106.…………………………………………………………………….......…… 4, 5 CPLR § 3120.…………………………………………………………………….......…… 4, 6 CPLR § 3124.…………………………………………………………………….......…… 4, 7, 8 CPLR §3126.…………………………………………………………………….......…… 8 3 3 of 9 PRELIMINARY STATEMENT Plaintiff, by its undersigned counsel, respectfully submits this Memorandum of Law pursuant to New York Civil Practice and Rules (“C.P.L.R.”) §§ 2308, 3101, 3106, 3120, and 3124 to: (i) hold defendants, On Time Studios NY, Inc., On Time Studios, LLC, Mendy Leonorvitz, Nacham Taub, and Raizy Pollack (collectively “Defendants”) in civil contempt of court due to their deliberate and persistent disobedience of the subpoenas and document requests issued in this action; (ii) compel Defendants Mendy Leonorvitz, Nacham Taub, and Raizy Pollack to appear for their depositions; (iii) compel Defendants to respond to the requests for production of documents served upon them; and (iv) award Plaintiff the legal fees and expenses it has occurred in bringing this motion. Despite being subpoenaed, and despite numerous accommodations having been made in order to avoid the need for this motion, Defendants have failed and refused to appear for their depositions and should be held in contempt of court accordingly and required to reimburse Plaintiff for all costs and fees incurred in connection with the Plaintiff’s efforts to depose them including but not limited to the preparation of the instant motion. RELEVANT FACTS On or about May 19, 2016, Plaintiff issued a deposition notice to Defendants setting the depositions for Defendants Leonorvitz, Taub, and Pollack for June 1, 2016, June 10, 2016, and June 14, 2016, respectively. On or about May 16, 2016, Plaintiff re-issued discovery demands requesting that Defendants produce certain documents and answer interrogatories by June 8, 2016. On or about June 07, 2016, your undersigned followed up with Defendants’ counsel on the status of discovery demands and notices of depositions via e-mail. Defendants’ counsel responded that his clients were “addressing the demands,” but no production was ever made. On or about August 08, 2016, Defendants’ counsel advised that “it looks likely we will settle” so Plaintiffs held off on 4 4 of 9 pursuing discovery for a short while. After settlement discussions did not materialize, on or about August 23, 2016, Plaintiff re-set the depositions for Leonorvitz, Taub, and Pollack for September 23rd, 2016, September 26, 2016, and September 28, 2016, respectively. Plaintiff also issued a second request for production, setting the deadline as September 22, 2016. On or about September 12, your undersigned followed up with Defendants’ counsel once more to check on the status of depositions and discovery demands. Defendants’ counsel responded requesting that Plaintiffs “[p]lease wait until Monday” because Defendants “are going to have [a settlement] offer.” However, despite promises of a forthcoming settlement and plan to settle, such discussions were of no merit. Plaintiffs never received any such offer from Defendants. On or about September 26, 2016, your undersigned contacted Defendants’ counsel stating that he assumed the deposition of Ms. Pollack was not going forward given the Defendants non-responsiveness, but that he expected to continue with the remaining scheduled deposition and to move discovery forward. Plaintiff received no response from Defendants’ counsel and on or about October 10, 2016, your undersigned contacted Defendants’ counsel to check on the status of the pending requests. To date, Plaintiff has yet to receive any document production, settlement offer, or any response to reschedule depositions. After such extensive back and forth with Defendants, Plaintiff now request the Court’s intervention in this matter. ARGUMENT I. THIS COURT SHOULD HOLD DEFENDANTS IN CONTEMPT FOR THEIR WILLFUL VIOLATION OF A JUDICIAL DEPOSITION NOTICE It is well settled law that “[a]fter an action is commenced, any party may take the testimony of any person by deposition upon oral or written questions.” C.P.L.R. § 3106(a). It is also well settled law that a party has the right to notice any other party for a deposition or to issue any other party a request for production. CPLR § 3120. Furthermore, under C.P.L.R. § 2308(a), failure to 5 5 of 9 comply with a ‘judicial’ subpoena “shall be punishable as a contempt of court.” C.P.L.R. § 2308(a). Furthermore, “[a] judicial subpoena, as used in the context of CPLR 2308(a), is any subpoena issued by a judge, clerk, or officer of the court (including an attorney representing a party to an action pending in court) in connection with a judicial proceeding.” NY CLS CPLR § 2308 (Commentary on ‘When Contempt May Be Used To Enforce Attorney-Issued Judicial Subpoena’) (citing Moore v. Sunshine, 126 Misc. 2d 284, 482 N.Y.S.2d 201 (Sup. Ct. New York County 1984)) (emphasis added). It is well accepted that CPLR 2308 (a) pertains to subpoenas requiring an individual’s attendance at a deposition. Id. (citing Bankers Trust Co. v. Braten, 194 A.D.2d 378, 598 N.Y.S.2d 498 (1st Dep’t 1993)). C.P.L.R. § 2308(a) further establishes that a subpoenaed individual “shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply.” Id. at subsection (a). Finally, C.P.L.R. §3101 requires that: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. . . .” Consequently, it is fair to state that the intention of C.P.L.R. section 3101 is that parties be given a fair opportunity to discover any and all information that is intended to lead to material and necessary evidence. Here, Plaintiff’s counsel issued Defendants a deposition notice on several separate occasions and attempted to resolve the matter with Defendants counsel for a continued period of time before now seeking the Court’s intervention. Defendants’ non-compliance indicates a clear violation OF C.P.L.R. sections 3106 and 3120. Furthermore, Plaintiffs also issued a production request on at least two separate occasions and Defendants’ non-compliance with that indicates a 6 6 of 9 clear violation of C.P.L.R section 3101. Therefore, it is clear that the Court has authority under C.P.L.R. section 2308 to hold Defendants in contempt. Defendants’ failure to abide by the deposition notices and production requests has prejudiced the rights of Plaintiff by prevented it from undertaking a full and fair inquiry into certain essential factors to maintain this action. Borgenicht v. Bloch, 280 A.D.2d 306, 307 (1st Dep't 2001). Defendants’ noncompliance has also cost the Plaintiffs to incur various expenses they would not otherwise have incurred, such as the costs associated with this motion. After a number of repeated, yet unsuccessful efforts to solve the present matter without seeking this Court’s intervention, Plaintiff now respectfully requests that this Court hold Defendants in contempt for willfully violating a judicial subpoena and also penalize Defendants for the costs arising from their failure to comply with said subpoena, including the costs associated with the present motion. II. THE COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THE DEPOSITION NOTICES AND PRODUCTION REQUESTS The Court should compel Defendants to comply with the deposition notices and production requests issued by Plaintiff on several occasions, as stated above, and it should order defendants, Leonorvitz, Taub, and Pollack to each attend a court-scheduled deposition. C.P.L.R. § 3124 states in pertinent part: “If a person fails to respond to or comply with any requests, notice, interrogatory, demand, question or order under this article . . . the parties seeking disclosure may move to compel compliance or a response.” C.P.L.R. §3124. It is well settled law, that when a party fails to make itself available for a deposition, the Court has the power to issue an order requiring attendance at the deposition. C.P.L.R. §3124; Richards v. Great All. & Pac. Tea 7 7 of 9 Co., Inc., 2010 N.Y. Misc. LEXIS 2705 (N.Y. Sup. Ct. Mar. 15, 2010) (ordering that a produce manager appear at a deposition pursuant to C.P.L.R. §3124); Rocco v Family Foot Ctr., 942 N.Y.S.2d 607 (N.Y. App. Div. 2nd Dep't 2012) (granting a motion to compel an individual to appear at a deposition). The Court further has the power to preclude said party from testifying at trial, based on its non-compliance during discovery. See, Greuling v. Breakey, 56 A.D.2d 540, 541 (N.Y. App. Div. 1st Dep't 1977) (explaining that under C.P.L.R. §3126, a Court may preclude certain witnesses from testifying at trial due to their noncompliance with discovery); see also, In re T./P. Children, 165 Misc. 2d 333, 335 (N.Y. Fam. Ct. 1995) (holding “that the respondent was not first required to move pursuant to C.P.L.R. §3124 to enforce her C.P.L.R. §3120 discovery demands but could apply directly, pursuant to C.P.L.R. §3126, for an order to compel with sanctions”). Here, Defendants have ignored their obligations under the C.P.L.R. and have proven without doubt that their sole strategy in this case is to delay any progress whatsoever and to make the litigation as expensive as possible—in time and money—for Plaintiffs. Discovery in this case will be impossible unless the Court intervenes and demands Defendants to comply with the specific discovery requested by Plaintiffs. Accordingly, Plaintiff respectfully requests that the Court enter such an order: CONCLUSION WHEREFORE, in light of the foregoing the Court should grant Plaintiff’s instant motion in its entirety and determine Defendants to be in contempt of the rules and laws that govern this court and the discovery process. In addition, the Court should compel the depositions for Leonorvitz, Taub, and Pollack to be held in the next twenty (20) days, and grant Plaintiff all other 8 8 of 9 relief it deems necessary and proper, including costs and fees in associated with having to bring the instant motion. Dated: November 16, 2016 New York, New York Respectfully Submitted, GULKO SCHWED LLP /s Asher Gulko _____________________ Asher C. Gulko, Esq. David J. Fryman, Esq. 44 Wall Street, Second Floor New York, New York 10005 T: 212.500.1312 F: 212.678.0405 9 9 of 9