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FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
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NIDA MAKHDOOM AND JANE DOE, Index No. 808162/2021
Plaintiff, AFFIRMATION OF GOOD
-against- FAITH IN SUPPORT OF
MOTION TO STRIKE,
DARUL ULOOM AL-MADANIA, INC., SANCTION AND COMPEL
DEFENDANT
Defendants.
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Matthew E. Minniefield, being an attorney duly admitted to practice in the Courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1. I am the attorney for Plaintiffs in this action.
2. I make this Affirmation of Good Faith pursuant to 22 NYCRR 202.7 in support of
Plaintiffs’ Motion to Compel Defendant Darul Uloom Al-Madania and for sanctions.
3. As outlined in the Complaints, from or about 1993 to or about 2001, Plaintiffs
attended an Islamic school for boys and girls where they were victims of horrific sexual abuse by
the male founder and head of Defendant institution, teachers employed by Defendant as well as a
student of Defendant. At the time of the allegations in Plaintiffs’ complaints Defendant school was
run by Defendant Ismail Memon and members of his family.
4. Plaintiff Abdul Islamovic commenced his action by filing a Summons and
Complaint on May 19, 2021, naming Defendant Darul Uloom Al-Madania (Index No.
806567/2021). Exhibit 1 annexed to Stengel Aff.
5. Plaintiff Nida Makhdoom commenced her action by filing a Summons and
Complaint on June 22, 2021, naming Defendant Darul Uloom Al-Madania and Shehnaz Patel
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(Index No. 808162/2021). On July 22, 2021, Ms. Makhdoom amended her complaint adding
Plaintiff Jane Doe to her action against Defendants. Exhibit 2 annexed to Stengel Aff.
6. Plaintiff Mohammed Khan commenced his action by filing a Summons and
Complaint on August 9, 2021, naming Defendant Darul Uloom Al-Madania (Index No.
810875/2021). Exhibit 3 annexed to Stengel Aff.
7. Plaintiff Usman Makhdoom commenced his action by filing a Summons and
Complaint on August 9, 2021, naming Defendants Darul Uloom Al-Madania and Ismail Memon
(Index No. 810901/2021). Exhibit 4 annexed to Stengel Aff.
8. Plaintiff John Doe commenced his action by filing a Summons and Complaint on
August 10, 2021, naming Defendant Darul Uloom Al-Madania and Ismail Memon (Index No.
810940/2021). Exhibit 5 annexed to Stengel Aff.
9. At the time of the filing of Plaintiffs’ complaints, Ismail Memon and his family
were not involved in the management of Defendant Darul Uloom Al-Madania, which was run by
Faisal Ansari, who was not related to Ismail Memon.
10. The Court granted Plaintiffs’ motion for default against Ismail Memon, who
deceased in 2023, was granted in the Usman Makhdoom (NYSCEF Doc No. 20) and John Doe
actions (NYSCEF Doc No. 28).
11. On January 24, 2022, following a Preliminary Conference on all Plaintiffs’ actions,
the Court signed Scheduling Orders in the action requiring Defendants to respond to interrogatories
and demands by April 4, 2022. Exhibit 6 annexed to Stengel Aff.
12. Defendants were ordered to respond to Plaintiffs’ demands by April 4, 2022,
deposition of Defendant to commence on October 22, 2022, and the following trial dates were
scheduled: Plaintiff John Doe on March 13, 2024; Plaintiff Islamovic on March 27, 2024; Plaintiff
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Mohammed Khan on April 10, 2024; Plaintiffs N. Makhdoom and Ms. Doe on May 8, 2024; and
Plaintiff U. Makhdoom on May 22, 2024. See, e.g., Ex. 1 at pp. 2-3.
13. On March 21, 2022, Plaintiffs served their requests for document production on
Defendant. Exhibit 7 annexed to Stengel Aff.
14. On July 25, 2022, the Court held a Status Conference with the parties. Ariel
Bauerle, Esq. of Hogan Willig, appeared for Defendant. Ms. Bauerle told the Court that Steve
Cohen was working with representatives of the school to prepare responses to Plaintiffs’
demands. In reply to the Court’s question about a timeline for disclosures, Ms. Bauerle stated that
she anticipated responses going out within one month.
15. The Court signed Amended Scheduling Orders in Plaintiffs’ actions. Exhibit 8
annexed to Stengel Aff. The Court Ordered Defendant to respond to Plaintiffs’ demands by August
8, 2022, and depositions of Defendant to commence on April 19, 2023.
16. On August 8, 2022, Defendant Darul Uloom Al-Madania served responses to
Plaintiffs’ interrogatories, which were grossly deficient. Exhibit 9 annexed to Stengel Aff.
Defendant did not respond in writing to Plaintiffs’ discovery demands. Defendant disclosed a
total of six pages of documents for all Plaintiffs (one page is redacted to protect the privacy of
the party) they failed to state what Defendants were not providing responses to and whether a
search was underway as required by 22 NYCRR 202.20-(a). Exhibit 10 annexed to Stengel Aff.
17. Defendant’s responses to interrogatories repeatedly falsely claimed that the
administration of Defendant’s school changed in 2010 and no documents or information exists
from the prior period (when Defendant Ismail Memon and his family managed Defendant School):
“From1986-2010, the school was under an entirely different administration. The new
administration post-2010 has no physical documents or knowledge pertaining to the above
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questions or the alleged perpetrating individual in question.” Ex. 3 at pp. 4-5, 17-18. However,
one document disclosed by Defendants is dated in 2001 and another document is dated in 2008.
See Ex. 4 at pp. 2, 6.
18. Further, Defendant’s interrogatory responses identify Syed Abdul Hafeez as
Defendant’s present record keeper and receptionist. See, e.g. Ex., 3 at p. 3. Based on Defendant’s
petition filed in 2014 in Erie County Supreme Court, Syed Abdul Hafeez was an officer of
Defendant’s religious corporation since 1990. Exhibit 11 annexed to Stengel Aff. at p. 24.
Furthermore, the petition itself lists Syed Abdul Hafeez as an officer/director of Defendant in 2014.
Id. at p. 1.
19. On August 8, 2022, the Court held a Status Conference with the parties. Counsel
for Plaintiff told the Court that we were reviewing Defendant’s responses, but a cursory review
indicated that the responses were grossly deficient.
20. On August 30, 2022, Plaintiffs sent Defendant a detailed deficiency letter citing
broad failures to make disclosures and inconsistent statements made under oath. Exhibit 12
annexed to Stengel Aff. Plaintiffs provided Defendant with thirty (30) days to cure said
deficiencies or, if corrective responses were not received, a meet and confer to discuss. Ex. 5 at 4.
Defendant did not respond to the letter.
21. On October 6, 2022, after not receiving any response to the August 30, 2022,
deficiency letter, Plaintiffs sent Defendant a second request for a meet and confer. Exhibit 13
annexed to Stengel Aff. Once again, Defendant did not respond to the letter either.
22. On October 24, 2022, Plaintiffs’ counsel contacted Defendant’s counsel via email
to attempt to schedule a meet and confer. Exhibit 14 annexed to Stengel Aff. Defendant’s counsel
responded that it was meeting with the defense team later the same day to see if there were any
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documents that were not provided. Ex. 8 at pp. 3-4. Defendant did not respond by November 1,
2022. Plaintiffs sent Defendant’s counsel another request to schedule a meet and confer. Id. at p.
2. On November 3, 2022, Defendant replied with three possible dates for a meet and confer. Id. at
p. 1 Plaintiffs’ counsel was not available for the only date that was offered prior to the next
scheduled status conference with the Court.
23. On November 14, 2022, the Court held a Status Conference with the parties. Mr.
Cohen acknowledged Plaintiffs’ attempts to obtain discovery. Mr. Cohen told the Court that
Defendant was in possession of significant additional documents that they are going through and
that they had to translate many of them from Arabic—seven months after the first date to make
disclosures to Plaintiffs. He also stated that they have been in contact with prior administration in
Canada, the Middle East and California. Your Honor ordered Defendant to make disclosures by
December 6. Defendants did not comply with the Court’s order.
24. On December 12, 2022, the Court held a Status Conference with the parties. Prior
to the December 12 appearance, Plaintiffs sent a letter to the Court to request an off-calendar
conference to discuss Defendant’s discovery deficiencies. Exhibit 15 annexed to Stengel Aff.
Plaintiffs’ counsel told the Court that no disclosures had been made by the Court’s deadline. Ex.
9 at p. 1 Plaintiffs also wrote to the Court that, “These matters are beginning to stagnate as a result
of non-compliance and failure to respond on behalf of Defendants.” Id.
25. On December 22, 2022, the Court held a Status Conference with the parties. The
Court ordered Defendants to comply with Plaintiffs’ demands by January 6, 2023. The Court
further ordered that Steve Cohen, Esq., counsel of record for Defendant to appear if Defendant did
not comply with discovery to explain why Defendant’s answers should not be struck.
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26. On December 27, 2022, Defendant served amended interrogatory responses, that
were once again deficient. Exhibit 16 annexed to Stengel Aff. Defendant repeated its improper
claims in their August 2022 responses, “From 1986-2010, the school was under a different
administration. The new administration, post-2010, does not possess physical documents or
knowledge pertaining to the above questions or the perpetrating individual in question.” Ex. 16 at
pp. 4-5, 17, 25 No additional documents were disclosed by Defendant.
27. On January 9, 2023, the Court held a Status Conference with the parties. Plaintiffs’
counsel told the Court that Defendant filed to comply with Court’s order because no additional
documents were produced, including the purported significant number of documents Defendant
had received that needed to be translated from Arabic. Moreover, the internal inconsistencies of
Defendant’s responses remained.
28. On February 2, 2023, the parties met and conferred with Steve Cohen, counsel for
Defendant. Mr. Cohen stated that Defendant’s would make disclosures imminently. Exhibit 17
annexed to Stengel Aff.
29. On February 6, 2023, Defendant served second amended interrogatory responses,
that were once again deficient for the same reasons as the prior deficiencies. Exhibit 19 annexed
to Stengel Aff. Defendant served discovery responses by U.S. mail on February 5, 2023. Exhibit
18 annexed to Stengel Aff.
30. Defendant’s disclosures include a pile of papers without stating what documents
are responsive to which demands, as required by 22 NYCRR 202.20-c(a), to the disadvantage of
Plaintiffs. Defendant disclosed 58 pages of documents for Plaintiff Islamovic; 188 documents for
Plaintiff N. Makhdoom; 22 pages of documents for Plaintiff U. Makhdoom; 93 pages of documents
for Plaintiff Khan; and 103 pages of documents for Plaintiff John Doe.
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31. In addition to several errors in production, Defendant did not disclose documents
for Plaintiff Jane Doe and has not done so to date.
32. On April 27, 2023, Plaintiffs sent Defendant a detailed deficiency letter citing broad
failures to follow the Uniform Rules in making disclosures, failure to make disclosures as well as
other errors. Exhibit 20 annexed to Stengel Aff. Plaintiffs provided Defendant with thirty (30)
days to cure said deficiencies or, if corrective responses were not received, a meet and confer to
discuss.
33. Despite the omissions, deficiencies and errors in Defendant’s document production,
Plaintiffs scheduled their deposition in a good faith effort to move the cases forward.
34. Plaintiffs’ depositions were completed on the following dates: Plaintiff U.
Makhdoom on July 6, 2023; Plaintiff Jane Doe on July 7, 2023; Plaintiff N. Makhdoom on July
20, 2023; and Plaintiffs Islamovic, Khan and John Doe on October 25, 2023.
35. Following the depositions of Plaintiffs on October 25, 2023, Stacey Subryan-
Gerber, counsel for Defendant, disclosed that Defendant was under new management by the
children of Ismail Memon, who is a defaulting Defendant in Plaintiffs U. Makhdoom and John
Doe. Ms. Subryan-Gerber, who did not know the first names of any of the new managers, stated
that she would disclose the names of the new owners and trustees of Defendant and send dates for
depositions. To date Defendants have not disclosed the names of the new owners and trustees of
Defendants.
36. The change in management was concerning to Plaintiffs because the new
management is related to defaulting Defendant Ismail Memon and they were likely present at
Defendant School at the time of the allegations of the six Plaintiffs.
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37. On November 9, 2023, Plaintiffs emailed Ms. Subryan-Gerber to follow up on her
pledge to make disclosures. Exhibit 21 annexed to Stengel Aff. Plaintiffs did not receive a
response.
38. On November 27, 2023, Plaintiffs emailed Defendant to serve new demands based
on the oral disclosures made by Ms. Subryan-Gerber about the new leadership of Defendant
School. Exhibit 22 and Exhibit 23 annexed to Stengel Aff. Plaintiffs did not receive a response.
39. On December 21, 2023, Plaintiffs re-served their demands by U.S. mail because
Defendants did not respond. Exhibit 24 and Exhibit 25 annexed to Stengel Aff.
40. On January 4, 2024, Defendant did not respond, yet again, to Plaintiffs email
regarding the new demands or to schedule depositions. Ex. 17 at 1.
41. On January 23, 2024, Plaintiffs sent Defendant a detailed deficiency letter, the third
during the pendency of the cases, citing the two-year delay that Defendants caused in prosecuting
Plaintiffs action, and a request for a meet and confer. Exhibit 26 annexed to Stengel Aff.
42. On February 1, 2024, Plaintiffs conferenced the discovery dispute and the failure
of Defendants to schedule Defendant’s depositions with Mr. Cohen. The depositions were
scheduled for March 18 and 20, and April 3. However, Mr. Cohen did not disclose who would be
deposed. Mr. Cohen sent an email pledging to comply with Plaintiff’s corporate demands and
other communications. Mr. Cohen also indicated that he would speak with his client about which
of the three dates selected for depositions would be best for Syed Abdul Hafeez because he was
an important witness given his time at the school including the periods of abuse. Exhibit 27
annexed to Stengel Aff.
43. On February 2, 2024, the Court held a status conference. Plaintiffs informed the
Court that Defendant’s responses remained deficient and that, although depositions had been
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scheduled for Defendant, no response had been received since November regarding the new
management. Plaintiffs also pointed out that a translator may be needed for the deposition of Syed
and requested that a response to which date worked for him be expedited—counsel for Defendant
agreed during the conference but failed to perform.
44. On February 16, 2024, Defendant responded to the corporate demands—and did
not disclose a single document, which runs counter to Mr. Cohen’s pledge on February 1. Exhibit
28 annexed to Stengel Aff.
45. On March 12, 2024, Plaintiffs emailed Defendant to note their recent responses
were deficient and to inquire about the scheduled deposition of Defendant. Exhibit 29 annexed to
Stengel Aff.
46. Defendants did not respond to this email.
47. At no time did Defendant disclose the name of any witness who would testify on
behalf of Defendant at a deposition.
48. The undersigned counsel for Plaintiff has attempted to confer with opposing
counsel in a good faith effort and many occasions to resolve the issues raised in Plaintiffs’ motion,
however, Defendant has repeatedly frustrated the prosecution of Plaintiffs’ action causing a delay
that transcends two years.
Dated: March 20, 2024
Albany, New York Respectfully submitted,
Matthew E. Minniefield
Attorneys for Plaintiff
Cooper Erving & Savage LLP
20 Corporate Woods Blvd., Suite 501
Albany, New York 12211
Tel: (518) 449-3900
Fax: (518) 432-3111
E-mail: mminniefield@coopererving.com
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FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE -------------------------------------------------------------------x NIDA MAKHDOOM AND JANE DOE, Index No. 808162/2021 Plaintiff, AFFIRMATION OF GOOD -against- FAITH IN SUPPORT OF MOTION TO STRIKE, DARUL ULOOM AL-MADANIA, INC., SANCTION AND COMPEL DEFENDANT Defendants. -------------------------------------------------------------------x Matthew E. Minniefield, being an attorney duly admitted to practice in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am the attorney for Plaintiffs in this action. 2. I make this Affirmation of Good Faith pursuant to 22 NYCRR 202.7 in support of Plaintiffs’ Motion to Compel Defendant Darul Uloom Al-Madania and for sanctions. 3. As outlined in the Complaints, from or about 1993 to or about 2001, Plaintiffs attended an Islamic school for boys and girls where they were victims of horrific sexual abuse by the male founder and head of Defendant institution, teachers employed by Defendant as well as a student of Defendant. At the time of the allegations in Plaintiffs’ complaints Defendant school was run by Defendant Ismail Memon and members of his family. 4. Plaintiff Abdul Islamovic commenced his action by filing a Summons and Complaint on May 19, 2021, naming Defendant Darul Uloom Al-Madania (Index No. 806567/2021). Exhibit 1 annexed to Stengel Aff. 5. Plaintiff Nida Makhdoom commenced her action by filing a Summons and Complaint on June 22, 2021, naming Defendant Darul Uloom Al-Madania and Shehnaz Patel 1 1 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 (Index No. 808162/2021). On July 22, 2021, Ms. Makhdoom amended her complaint adding Plaintiff Jane Doe to her action against Defendants. Exhibit 2 annexed to Stengel Aff. 6. Plaintiff Mohammed Khan commenced his action by filing a Summons and Complaint on August 9, 2021, naming Defendant Darul Uloom Al-Madania (Index No. 810875/2021). Exhibit 3 annexed to Stengel Aff. 7. Plaintiff Usman Makhdoom commenced his action by filing a Summons and Complaint on August 9, 2021, naming Defendants Darul Uloom Al-Madania and Ismail Memon (Index No. 810901/2021). Exhibit 4 annexed to Stengel Aff. 8. Plaintiff John Doe commenced his action by filing a Summons and Complaint on August 10, 2021, naming Defendant Darul Uloom Al-Madania and Ismail Memon (Index No. 810940/2021). Exhibit 5 annexed to Stengel Aff. 9. At the time of the filing of Plaintiffs’ complaints, Ismail Memon and his family were not involved in the management of Defendant Darul Uloom Al-Madania, which was run by Faisal Ansari, who was not related to Ismail Memon. 10. The Court granted Plaintiffs’ motion for default against Ismail Memon, who deceased in 2023, was granted in the Usman Makhdoom (NYSCEF Doc No. 20) and John Doe actions (NYSCEF Doc No. 28). 11. On January 24, 2022, following a Preliminary Conference on all Plaintiffs’ actions, the Court signed Scheduling Orders in the action requiring Defendants to respond to interrogatories and demands by April 4, 2022. Exhibit 6 annexed to Stengel Aff. 12. Defendants were ordered to respond to Plaintiffs’ demands by April 4, 2022, deposition of Defendant to commence on October 22, 2022, and the following trial dates were scheduled: Plaintiff John Doe on March 13, 2024; Plaintiff Islamovic on March 27, 2024; Plaintiff 2 2 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 Mohammed Khan on April 10, 2024; Plaintiffs N. Makhdoom and Ms. Doe on May 8, 2024; and Plaintiff U. Makhdoom on May 22, 2024. See, e.g., Ex. 1 at pp. 2-3. 13. On March 21, 2022, Plaintiffs served their requests for document production on Defendant. Exhibit 7 annexed to Stengel Aff. 14. On July 25, 2022, the Court held a Status Conference with the parties. Ariel Bauerle, Esq. of Hogan Willig, appeared for Defendant. Ms. Bauerle told the Court that Steve Cohen was working with representatives of the school to prepare responses to Plaintiffs’ demands. In reply to the Court’s question about a timeline for disclosures, Ms. Bauerle stated that she anticipated responses going out within one month. 15. The Court signed Amended Scheduling Orders in Plaintiffs’ actions. Exhibit 8 annexed to Stengel Aff. The Court Ordered Defendant to respond to Plaintiffs’ demands by August 8, 2022, and depositions of Defendant to commence on April 19, 2023. 16. On August 8, 2022, Defendant Darul Uloom Al-Madania served responses to Plaintiffs’ interrogatories, which were grossly deficient. Exhibit 9 annexed to Stengel Aff. Defendant did not respond in writing to Plaintiffs’ discovery demands. Defendant disclosed a total of six pages of documents for all Plaintiffs (one page is redacted to protect the privacy of the party) they failed to state what Defendants were not providing responses to and whether a search was underway as required by 22 NYCRR 202.20-(a). Exhibit 10 annexed to Stengel Aff. 17. Defendant’s responses to interrogatories repeatedly falsely claimed that the administration of Defendant’s school changed in 2010 and no documents or information exists from the prior period (when Defendant Ismail Memon and his family managed Defendant School): “From1986-2010, the school was under an entirely different administration. The new administration post-2010 has no physical documents or knowledge pertaining to the above 3 3 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 questions or the alleged perpetrating individual in question.” Ex. 3 at pp. 4-5, 17-18. However, one document disclosed by Defendants is dated in 2001 and another document is dated in 2008. See Ex. 4 at pp. 2, 6. 18. Further, Defendant’s interrogatory responses identify Syed Abdul Hafeez as Defendant’s present record keeper and receptionist. See, e.g. Ex., 3 at p. 3. Based on Defendant’s petition filed in 2014 in Erie County Supreme Court, Syed Abdul Hafeez was an officer of Defendant’s religious corporation since 1990. Exhibit 11 annexed to Stengel Aff. at p. 24. Furthermore, the petition itself lists Syed Abdul Hafeez as an officer/director of Defendant in 2014. Id. at p. 1. 19. On August 8, 2022, the Court held a Status Conference with the parties. Counsel for Plaintiff told the Court that we were reviewing Defendant’s responses, but a cursory review indicated that the responses were grossly deficient. 20. On August 30, 2022, Plaintiffs sent Defendant a detailed deficiency letter citing broad failures to make disclosures and inconsistent statements made under oath. Exhibit 12 annexed to Stengel Aff. Plaintiffs provided Defendant with thirty (30) days to cure said deficiencies or, if corrective responses were not received, a meet and confer to discuss. Ex. 5 at 4. Defendant did not respond to the letter. 21. On October 6, 2022, after not receiving any response to the August 30, 2022, deficiency letter, Plaintiffs sent Defendant a second request for a meet and confer. Exhibit 13 annexed to Stengel Aff. Once again, Defendant did not respond to the letter either. 22. On October 24, 2022, Plaintiffs’ counsel contacted Defendant’s counsel via email to attempt to schedule a meet and confer. Exhibit 14 annexed to Stengel Aff. Defendant’s counsel responded that it was meeting with the defense team later the same day to see if there were any 4 4 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 documents that were not provided. Ex. 8 at pp. 3-4. Defendant did not respond by November 1, 2022. Plaintiffs sent Defendant’s counsel another request to schedule a meet and confer. Id. at p. 2. On November 3, 2022, Defendant replied with three possible dates for a meet and confer. Id. at p. 1 Plaintiffs’ counsel was not available for the only date that was offered prior to the next scheduled status conference with the Court. 23. On November 14, 2022, the Court held a Status Conference with the parties. Mr. Cohen acknowledged Plaintiffs’ attempts to obtain discovery. Mr. Cohen told the Court that Defendant was in possession of significant additional documents that they are going through and that they had to translate many of them from Arabic—seven months after the first date to make disclosures to Plaintiffs. He also stated that they have been in contact with prior administration in Canada, the Middle East and California. Your Honor ordered Defendant to make disclosures by December 6. Defendants did not comply with the Court’s order. 24. On December 12, 2022, the Court held a Status Conference with the parties. Prior to the December 12 appearance, Plaintiffs sent a letter to the Court to request an off-calendar conference to discuss Defendant’s discovery deficiencies. Exhibit 15 annexed to Stengel Aff. Plaintiffs’ counsel told the Court that no disclosures had been made by the Court’s deadline. Ex. 9 at p. 1 Plaintiffs also wrote to the Court that, “These matters are beginning to stagnate as a result of non-compliance and failure to respond on behalf of Defendants.” Id. 25. On December 22, 2022, the Court held a Status Conference with the parties. The Court ordered Defendants to comply with Plaintiffs’ demands by January 6, 2023. The Court further ordered that Steve Cohen, Esq., counsel of record for Defendant to appear if Defendant did not comply with discovery to explain why Defendant’s answers should not be struck. 5 5 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 26. On December 27, 2022, Defendant served amended interrogatory responses, that were once again deficient. Exhibit 16 annexed to Stengel Aff. Defendant repeated its improper claims in their August 2022 responses, “From 1986-2010, the school was under a different administration. The new administration, post-2010, does not possess physical documents or knowledge pertaining to the above questions or the perpetrating individual in question.” Ex. 16 at pp. 4-5, 17, 25 No additional documents were disclosed by Defendant. 27. On January 9, 2023, the Court held a Status Conference with the parties. Plaintiffs’ counsel told the Court that Defendant filed to comply with Court’s order because no additional documents were produced, including the purported significant number of documents Defendant had received that needed to be translated from Arabic. Moreover, the internal inconsistencies of Defendant’s responses remained. 28. On February 2, 2023, the parties met and conferred with Steve Cohen, counsel for Defendant. Mr. Cohen stated that Defendant’s would make disclosures imminently. Exhibit 17 annexed to Stengel Aff. 29. On February 6, 2023, Defendant served second amended interrogatory responses, that were once again deficient for the same reasons as the prior deficiencies. Exhibit 19 annexed to Stengel Aff. Defendant served discovery responses by U.S. mail on February 5, 2023. Exhibit 18 annexed to Stengel Aff. 30. Defendant’s disclosures include a pile of papers without stating what documents are responsive to which demands, as required by 22 NYCRR 202.20-c(a), to the disadvantage of Plaintiffs. Defendant disclosed 58 pages of documents for Plaintiff Islamovic; 188 documents for Plaintiff N. Makhdoom; 22 pages of documents for Plaintiff U. Makhdoom; 93 pages of documents for Plaintiff Khan; and 103 pages of documents for Plaintiff John Doe. 6 6 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 31. In addition to several errors in production, Defendant did not disclose documents for Plaintiff Jane Doe and has not done so to date. 32. On April 27, 2023, Plaintiffs sent Defendant a detailed deficiency letter citing broad failures to follow the Uniform Rules in making disclosures, failure to make disclosures as well as other errors. Exhibit 20 annexed to Stengel Aff. Plaintiffs provided Defendant with thirty (30) days to cure said deficiencies or, if corrective responses were not received, a meet and confer to discuss. 33. Despite the omissions, deficiencies and errors in Defendant’s document production, Plaintiffs scheduled their deposition in a good faith effort to move the cases forward. 34. Plaintiffs’ depositions were completed on the following dates: Plaintiff U. Makhdoom on July 6, 2023; Plaintiff Jane Doe on July 7, 2023; Plaintiff N. Makhdoom on July 20, 2023; and Plaintiffs Islamovic, Khan and John Doe on October 25, 2023. 35. Following the depositions of Plaintiffs on October 25, 2023, Stacey Subryan- Gerber, counsel for Defendant, disclosed that Defendant was under new management by the children of Ismail Memon, who is a defaulting Defendant in Plaintiffs U. Makhdoom and John Doe. Ms. Subryan-Gerber, who did not know the first names of any of the new managers, stated that she would disclose the names of the new owners and trustees of Defendant and send dates for depositions. To date Defendants have not disclosed the names of the new owners and trustees of Defendants. 36. The change in management was concerning to Plaintiffs because the new management is related to defaulting Defendant Ismail Memon and they were likely present at Defendant School at the time of the allegations of the six Plaintiffs. 7 7 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 37. On November 9, 2023, Plaintiffs emailed Ms. Subryan-Gerber to follow up on her pledge to make disclosures. Exhibit 21 annexed to Stengel Aff. Plaintiffs did not receive a response. 38. On November 27, 2023, Plaintiffs emailed Defendant to serve new demands based on the oral disclosures made by Ms. Subryan-Gerber about the new leadership of Defendant School. Exhibit 22 and Exhibit 23 annexed to Stengel Aff. Plaintiffs did not receive a response. 39. On December 21, 2023, Plaintiffs re-served their demands by U.S. mail because Defendants did not respond. Exhibit 24 and Exhibit 25 annexed to Stengel Aff. 40. On January 4, 2024, Defendant did not respond, yet again, to Plaintiffs email regarding the new demands or to schedule depositions. Ex. 17 at 1. 41. On January 23, 2024, Plaintiffs sent Defendant a detailed deficiency letter, the third during the pendency of the cases, citing the two-year delay that Defendants caused in prosecuting Plaintiffs action, and a request for a meet and confer. Exhibit 26 annexed to Stengel Aff. 42. On February 1, 2024, Plaintiffs conferenced the discovery dispute and the failure of Defendants to schedule Defendant’s depositions with Mr. Cohen. The depositions were scheduled for March 18 and 20, and April 3. However, Mr. Cohen did not disclose who would be deposed. Mr. Cohen sent an email pledging to comply with Plaintiff’s corporate demands and other communications. Mr. Cohen also indicated that he would speak with his client about which of the three dates selected for depositions would be best for Syed Abdul Hafeez because he was an important witness given his time at the school including the periods of abuse. Exhibit 27 annexed to Stengel Aff. 43. On February 2, 2024, the Court held a status conference. Plaintiffs informed the Court that Defendant’s responses remained deficient and that, although depositions had been 8 8 of 9 FILED: ERIE COUNTY CLERK 03/20/2024 02:18 PM INDEX NO. 808162/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/20/2024 scheduled for Defendant, no response had been received since November regarding the new management. Plaintiffs also pointed out that a translator may be needed for the deposition of Syed and requested that a response to which date worked for him be expedited—counsel for Defendant agreed during the conference but failed to perform. 44. On February 16, 2024, Defendant responded to the corporate demands—and did not disclose a single document, which runs counter to Mr. Cohen’s pledge on February 1. Exhibit 28 annexed to Stengel Aff. 45. On March 12, 2024, Plaintiffs emailed Defendant to note their recent responses were deficient and to inquire about the scheduled deposition of Defendant. Exhibit 29 annexed to Stengel Aff. 46. Defendants did not respond to this email. 47. At no time did Defendant disclose the name of any witness who would testify on behalf of Defendant at a deposition. 48. The undersigned counsel for Plaintiff has attempted to confer with opposing counsel in a good faith effort and many occasions to resolve the issues raised in Plaintiffs’ motion, however, Defendant has repeatedly frustrated the prosecution of Plaintiffs’ action causing a delay that transcends two years. Dated: March 20, 2024 Albany, New York Respectfully submitted, Matthew E. Minniefield Attorneys for Plaintiff Cooper Erving & Savage LLP 20 Corporate Woods Blvd., Suite 501 Albany, New York 12211 Tel: (518) 449-3900 Fax: (518) 432-3111 E-mail: mminniefield@coopererving.com 9 9 of 9