Motion for Writ in Chuangxia Cai v. Xiao He Liu, Does 1-50| Trellis.Law

On December 17, 2021 a Motion-Secondary was filed involving a dispute between Chuangxia Cai, and Does 1-50, Xiao He Liu, for Commercial - Contract in the District Court of Suffolk County.

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INDEX NO. 623377/2021
FILED: SUFFOLK COUNTY CLERK 05/17/2023 10:21 PM
NYSCEF DOC. NO. 49 RECEIVED NYSCEF 05/17/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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CHUANG XIA CAI,

Plaintiff, Index No.: 623377/2021

-against-

XIAO HE LIU and DOES 1-50, MOTION SEQUENCE NO. 3

Defendants. HON. CARMEN VICTORIA
ST. GEORGE

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DEFENDANT’S MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY

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TABLE OF CONTENTS

BACKGROUND

ARGUMENT

Plaintiff's Motion Should be Denied Because Plaintiff Has Not Made A
Good Faith Effort to Resolve the Discovery Disputes Before Filing this
Motion to Compel and Plaintiff Has Failed to Submit An Affirmation of
Good Faith with this Motion

IL Defendant’s Discovery Response ........c.scsessssssseseeseseesesesesescsescsesesesceeseaeseeeseeeaeeeee 3

A Defendant’s Responses to Plaintiff's Document Requests and
Interrogatories......c.c.cececeseseseseesesescsesesescsescscseseaescacscsescsesceescseacaeacacacaeaceeaeeeae 4

B Subpoena to BQ Consulting Inc./BQ Accounting CPA, P.C. oe eeeeeeee 4

Cc Deposition of Xiao He Liu

CONCLUSION

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TABLE OF AUTHORITIES
Cases

Aguilar v. One Liberty Plaza Condominium,
2021 WL 6195757, at *1 (Sup. Ct. Queens Co. Nov. 10, 2021)

Allen v Crowell-Collier Pub. Co.,
21 NY2d 403, 406 (1968)

Bell v Cobble Hill Health Ctr., Inc.,
22 AD3d 620 (2d Dept 2005

Bronstein v. Charm City Hous., LLC,
106 N.Y.S.3d 331, 333 (2d Dep’t 2019)

Budano v Gurdon,
97 AD3d 497, 499 (1st Dept 2012)

Conte v County of Nassau,
87 AD3d 559, 560 (2d Dept 2011)

Grasso v. McCoy,
977 N.Y.S.2d 648, 649 (4th Dep’t 2014) .

GS Plasticos Limitada v Bur. Veritas Consumer Products Services, Inc.,
112 AD3d 539, 539 (Ist Dept 2013)

Herbst by Herbst v Bruhn,
106 AD2d 546 (2d Dept 1984)

Jackson v. Hunter Roberts Const. Grp., L.L.C.,
29 N.Y.S.3d 170, 171 (1st Dep’t 2016)

McCarthy v. Lau,
2008 WL 226864 (Sup. Ct. Suffolk Co. Jan. 17, 2008)

Muchnik v. Mendez Trucking, Inc.,
181 N.Y.S.3d 610, 612 (2d Dep’t 2023)

Orix Credit All., Inc. v R.E. Hable Co.,
256 AD2d 114, 116 (1st Dept 1998)

Ovcharenko v. 65th Booth Assoc.,
16 N.Y.S.3d 763, 764 (2d Dep’t 2015)

Roye v. Gelberg,
101 N.Y.S.3d 444, 447 (2d Dep’t 2019) ..

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Sexter v Kimmelman, Sexter, Warmflash & Leitner,
277 AD2d 186 (Ist Dept 2000)
Winter v. ESRT Empire State Bldg., LLC,
161 N.Y.S.3d 314, at *2 (2d Dep’t 2022)

Rules

CPLR 3124

CPLR 3126

22 NYCRR §202.20-f...... 0... coe eee e cece cece cece eect eee eseeeee asec a eeeee essa eeeeeeeeeeeeeseseeeaees 1,3

22 NYCRR §202.7....... ccc cece cece cece cee e cence cece ae eeeeeeeueseeeeeseessaeeeseetaeeeenessaesenneeens 1,3

CPLR 3101

iii

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Defendant Xiao He Liu (the “Defendant”) respectfully submits this memorandum of law

in opposition to plaintiff Chuang Xia Cai’s (the “Plaintiff’) motion to compel (the “Motion”),

which seeks an Order to grant: (i) motion to compel Defendants to produce complete documents

and responses to Plaintiff's discovery requests pursuant to CPLR 3124 and 3126; and (ii) motion

to compel Defendants to provide deposition testimony.

BACKGROUND

The factual and procedural history underlying Defendant’s Opposition to Plaintiff's

Motion to Compel are set forth in the accompanying Affirmation of Ge Li, Esq. (“Li Aff.”) in

opposition to Plaintiff's Motion to Compel Discovery, and are respectfully incorporated herein.

ARGUMENT

Plaintiff's Motion Should be Denied Because Plaintiff Has Not Made A Good Faith
Effort to Resolve the Discovery Disputes Before Filing this Motion to Compel and
Plaintiff Has Failed to Submit An Affirmation of Good Faith with this Motion

Under New York law, before filing a motion to compel, a meet and confer is required with

opposing counsel in a good faith effort to resolve the issue raised by a motion. (see 22 NYCRR

§202.20-f; 22 NYCRR §202.7(c)). Plaintiffs motion does not include a good faith affidavit or

affirmation required under 22 NYCRR § 202.20-f. This defect alone justifies the denial of

Plaintiff's motion. See Aguilar v. One Liberty Plaza Condominium, 2021 WL 6195757, at *1 (Sup.

Ct. Queens Co. Nov. 10, 2021).

Further, the New York Court routinely denies a motion to compel when the court finds

that counsel’s efforts to resolve the dispute were deficient (see, Winter v. ESRT Empire State

Bldg., LLC, 161 N.Y.S.3d 314, at *2 (2d Dep’t 2022); Jackson v. Hunter Roberts Const. Grp.,

LL.C., 29 N.Y.S.3d 170, 171 (1st Dep’t 2016); Ovcharenko v. 65th Booth Assoc., 16 N.Y.S.3d

763, 764 (2d Dep’t 2015)) and when the affirmation fails to provide sufficient detail about

counsel’s effort to resolve the dispute (see Muchnik v. Mendez Trucking, Inc., 181 N.Y.S.3d 610,

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612 (2d Dep’t 2023) (denying motion where affirmation failed to provide any details); Bronstein

v. Charm City Hous., LLC, 106 N.Y.S.3d 331, 333 (2d Dep’t 2019) (affirmation that did not

identify the dates of conversations or name of opposing counsel was not sufficient); Roye v.

Gelberg, 101 N.Y.S.3d 444, 447 (2d Dep’t 2019) (affirmation that did not refer to any

communications that identifies a diligent effort to resolve the discovery dispute was not sufficient);

Grasso v. McCoy, 977 N.Y.S.2d 648, 649 (4th Dep’t 2014) (same); McCarthy v. Lau, 2008 WL

226864 (Sup. Ct. Suffolk Co. Jan. 17, 2008) (an affirmation stating that counsel’s clerk had

attempted on numerous occasions to schedule depositions of the opposing parties did not provide

sufficient detail)(emphasis added).

In this case, Plaintiff submitted an affirmation with its motion to compel (Weiyu Li’s Aff.,

NYSCEF Doc. No. 38). However, Weiyu Li’s Affirmation is not in compliance with 22 NYCRR

202.7(a) and (c), which requires an affirmation of good faith indicating “that counsel has conferred

with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion”

and that the affirmation of good faith “shall indicate the time, place and nature of the consultation

and the issues discussed and any resolutions, or shall indicate good cause why no such conferral

with counsel for opposing parties was held.” See 22 NYCRR 202.7(a), (c).

In addition, 22 NYCRR § 202.20-f requires that “[a]bsent exigent circumstances, prior to

contacting the court regarding a disclosure dispute, counsel must first consult with one another in

a good faith effort to resolve all disputes about disclosure. Such consultation must take place by

an in-person or telephonic conference” and “[iJn the event that a discovery dispute cannot be

resolved other than through motion practice, each such discovery motion shall be supported by an

affidavit or affirmation from counsel attesting to counsel having conducted _an in-person or

telephonic conference, setting forth the date and time of such conference, persons participating,

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and the length of time of the conference.” (Emphasis added). Weiyu Li’s Affirmation does not

state anything about the in-person or telephone conference required by 22 NYCRR § 202.20-f. In

fact, such conference was not conducted. See Ge Li Aff. 9.

Because Plaintiff failed to make a good faith effort to resolve the discovery disputes before

filing this motion to compel and an affirmation of good faith is missing from this Motion, his

motion should be denied.

Il. Defendant’s Discovery Responses

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action.” In determining whether the information

sought is subject to discovery, “[t]he test is one of usefulness and reason.” Allen v Crowell-Collier

Pub. Co., 21 NY2d 403, 406 (1968). It is incumbent on the party seeking disclosure to demonstrate

that the method of discovery sought will result in the disclosure of relevant evidence or is

reasonably calculated to lead to the discovery of information bearing on the claims. GS Plasticos

Limitada v Bur. Veritas Consumer Products Services, Inc., 112 AD3d 539, 539 (1st Dept 2013);

Sexter v Kimmelman, Sexter, Warmflash & Leitner,277 AD2d 186 (1st Dept 2000). A party cannot

“use pre-trial discovery as a fishing expedition when they cannot set forth a reliable factual basis

for the requests.” Orix Credit All., Inc. v R.E. Hable Co., 256 AD2d 114, 116 (1st Dept 1998).

Discovery demands are improper if they are based upon “hypothetical speculations

calculated to justify a fishing expedition.” Budano v Gurdon, 97 AD3d 497, 499 (1st Dept 2012).

Unsubstantiated bare allegations of relevancy are deemed insufficient to establish the factual

predicate regarding relevancy. Herbst by Herbst v Bruhn, 106 AD2d 546 (2d Dept 1984). Thus, a

request for a motion to compel will be denied if it is overly broad, lacks specificity, and seeks

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irrelevant documents. Conte v County of Nassau, 87 AD3d 559, 560 (2d Dept 2011); Bell v Cobble

Hill Health Ctr., Inc., 22 AD3d 620 (2d Dept 2005).

A. Defendant’s Responses to Plaintiff's Document Requests and Interrogatories

In this case, Defendant has responded to Plaintiffs Document Requests and Interrogatories.

See Exhibit 2 to Pl.’s Motion (NYSCEF Doc. No. 41). Because of Plaintiff's lack of good faith

effort to meet and confer, before filing this motion Plaintiff failed to state clearly which part of

Defendant’s responses was deficient.

Exhibit 3 to Plaintiff's Motion appears to contain parties’ email communication on

discovery issues. Plaintiff's Exhibit 3 is almost unreadable because Plaintiff chooses to submit it

in an upside-down confusing format. Using the best effort to glean from Exhibit 3, it seems that

the only deficiency alleged by Plaintiff is there are 10 pages missing from Defendant’s document

production. If Plaintiff's counsel had complied with the meet and confer requirements in 22

NYCRR § 202.20-f and 22 NYCRR 202.7, parties could have been able to resolve this dispute

already without the Court’s intervention. Currently, Defendant is willing to supplement the alleged

missing pages from his production.

B. Subpoena to BQ Consulting Inc./BQ Accounting CPA, P.C.

To the extent that Plaintiff also attempts to compel Defendant to respond to the subpoena

served by Plaintiff on the non-party BQ Consulting Inc./BQ Accounting CPA, P.C. This part of

the motion should be denied by the Court because Plaintiffs motion to compel is against the wrong

party. Plaintiff's motion to compel should be against the non-party BQ Consulting Inc./BQ

Accounting CPA, P.C., not the Defendant here.

C. Deposition of Xiao He Liu

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Plaintiff noticed the deposition of defendant Xiao He Liu at beginning of 2023. The

deposition was never confirmed. Because of the holiday and Xiao He Liu’s business trip, the

deposition was delayed. Plaintiff himself also voluntarily adjourned the deposition once. See Li

Aff. | 7-9. If Plaintiff's counsel had complied with the meet and confer requirements in 22

NYCRR § 202.20-f and 22 NYCRR 202.7, parties could have been able to resolve this dispute

without the Court’s intervention because Defendant is willing to attend the deposition after a meet

and confer on a proper schedule.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court deny Plaintiff's

Motion to Compel.

Dated: Queens, New York
May 17, 2023

KEVIN KERVENG TUNG, P.C.
Attorneys for Defendant

/s/_Ge Li
By: Ge Li, Esq.
Queens Crossing Business Center
136-20 38" Avenue, Suite 3D
Flushing, New York 11354
(718) 939-4633

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RULE 202.8-b CERTIFICATION STATEMENT

Ge Li, an attorney duly admitted to practice law before the Courts of the State of New York,

hereby affirms the following under the penalty of perjury:

1 I respectfully submit this Rule 202.8-b Certification Statement as part of the memo in
opposition to Plaintiffs’ Motion.

The number of words of this memo is 1,810, excluding the caption and signature
block.

The word length ofthis document was calculated by the word-processing system used
to prepare the document in compliance with NYCRR 202.8-b(c).

Dated: Queens, New York
May 17, 2023

/s/ Ge Li
Ge Li

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Case Info

Judge

Maureen Liccione Track Judge’s New Case

Case No.

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Document Filed Date

May 17, 2023

Case Filing Date

December 17, 2021

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Motion-Secondary: Chuangxia Cai v. Xiao He Liu, Does 1-50

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