Preview
FILED: NEW YORK COUNTY CLERK 01/22/2024 06:26 PM INDEX NO. 150605/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
SAINT PETER’S UNIVERSITY
Index No.
Petitioner,
PETITION AND AFFIRMATION OF
v. GOOD FAITH IN SUPPORT OF
MOTION TO ENFORCE
NUSSBAUM LOWINGER LLP CPLR § 3119
SUBPOENA FOR TESTIMONY
Respondent.
AARON H. GOULD, an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the truth of the following statements under penalties of perjury:
1. I am a partner of the law firm of Connell Foley LLP, attorneys for petitioner Saint
Peter’s University (“Petitioner”). I am fully familiar with the facts and circumstances of this action and
the matters set forth herein.
2. I submit this Affirmation of Good Faith in support of Petitioners' application for an
Order pursuant to CPLR §§ 2308, 3124 and 3125 compelling Nussbaum Lowinger LLP to produce
documents and appear for its deposition in compliance with a duly served subpoena, which was
previously returnable on December 13, 2023, pursuant to the Uniform Interstate Deposition and
Discovery Act and CPLR § 3119, at the offices of Connell Foley LLP, 875 Third Avenue, 21st Floor,
New York, New York 10022, and for such other and further relief as this Court deems just, equitable
and proper.
3. I further submit this Affidavit pursuant to Uniform Rule 202.7 for The Supreme
Court and The County Court to advise the Court of our good faith efforts to confer with Nussbaum
Lowinger LLP in order to resolve the issues raised by this motion without Court intervention.
4. The relief sought in this Petition is related to an action that was commenced in the
Superior Court of New Jersey, Hudson County, Chancery Division, entitled Glenwood Manor LLC v.
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Saint Peter’s University, Docket No.: HUD-C-97-23 (“the Action”), on or about July 12, 2023. The
requested document production and deposition of Nussbaum Lowinger LLP is necessary in the Action
because Glenwood Manor LLC has alleged in a Verified Complaint that it possessed certain funds in
a dedicated escrow account held by Nussbaum Lowinger LLP for the purchase of certain property
from Petitioner and was willing, ready and able to close on the transaction on the prearranged closing
date of June 21, 2023 and later amended closing date of June 26, 2023. Glenwood Manor LLC’s actual
ability to pay the purchase price of the properties and close on the transaction is a material issue in the
Action.
5. Glenwood Manor LLC attached a June 21, 2023 letter signed by Mark J. Nussbaum of
Nussbaum Lowinger LLP in its Verified Complaint to support its claims that it had sufficient funds to
pay the purchase price and all closing costs for the properties on the closing date. The letter states that
Nussbaum Lowinger LLP is “holding Fifteen Million (15,000,000.00) Dollars in escrow [for] the
property located at 104 Glenwood Ave; 138-140 Glenwood Ave; 146-152 Glenwood Ave; 850 West
Side Ave Jersey [C]ity NJ, on behalf of and at the direction of the above listed Client.” However,
Glenwood Manor LLC is not named or identified in the June 21, 2023 escrow letter. See Exhibit A.
6. On November 7, 2023, Petitioner attempted to serve Nussbaum Lowinger LLP (a non-
party in the Action with its principal place of business in New York) with a Subpoena Duces Tecum
and Ad Testificandum (“the Subpoena”) pursuant to the Uniform Interstate Deposition and Discovery
Act and CPLR § 3119, however, Nussbaum Lowinger LLP refused to accept service of the Subpoena.
7. Thereafter, Petitioner successfully served the Subpoena on the New York Department
of State pursuant to CPLR § 310-a(c) and Section 121-1505 of the New York Partnership Law. See
Exhibit B.
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8. The Subpoena seeks a document production and deposition of Nussbaum Lowinger
LLP and was returnable on December 13, 2023 at the offices of Connell Foley LLP, 875 Third Avenue,
21st Floor, New York, New York 10022. Id.
9. After the December 13, 2023 return date, in December 2023, I had a telephone
conversation with Michael J. Nussbaum regarding Nussbaum’s production of documents responsive
to the Subpoena. I was advised that a production would be provided shortly and Mr. Nussbaum was
just backed up on other work.
10. On January 17, 2024, I sent an e-mail to Michael J. Nussbaum following up on our
telephone conversation and requesting Nussbaum’s compliance with the Subpoena. See Exhibit C.
11. On January 18, 2024, Mr. Nussbaum responded that he did not have client consent to
provide responsive documents and indicated that a court order would be required for Nussbaum to
provide further details of the escrow funds it held in its accounts. Id.
12. On January 19, 2024, Connell Foley sent a follow-up letter to Nussbaum Lowinger
LLP, via electronic mail, advising Nussbaum that if it continued refuse to comply with the Subpoena,
Connell Foley would be forced to file a petition to enforce the Subpoena. See Exhibit D.
13. To date, Nussbaum Lowinger LLP has not appeared or produced any documents
pursuant to the Subpoena.
14. Glenwood Manor LLC’s Verified Complaint relies in part on Nussbaum Lowinger
LLP’s June 21, 2023 correspondence which indicates that it held $15,000,000 in an escrow account
for the purchase of certain properties from Petitioner. Glenwood Manor’s ability to purchase and close
the transaction on the prearranged closing date is a central issue in the Action, and therefore Nussbaum
Lowinger LLP must be ordered to produce the requested documents and to provide testimony.
15. Petitioner has made good faith attempts to schedule the document production and
deposition of Nussbaum Lowinger LLP, but Nussbaum has failed to comply with the Subpoena.
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16. WHEREFORE, Petitioner respectfully requests that this Honorable Court grant its
motion to compel non-party Nussbaum Lowinger LLP to produce documents and appear for a
deposition, on March 11, 2024 at the offices of Connell Foley LLP, 875 Third Avenue, 21st Floor, New
York, New York 10022, based on a subpoena which was previously duly served and noticed pursuant
to the Uniform Interstate Deposition and Discovery Act and CPLR § 3119, and for such other and
further relief as this Court deems just, equitable and proper.
CONNELL FOLEY LLP
Leo J. Hurley, Jr.
Aaron H. Gould
Harborside 5
185 Hudson Street, Suite 2510
Jersey City, New Jersey 07311
Attorneys for Defendant
Saint Peter’s University
BY: /s/ Aaron H. Gould
LEO J. HURLEY, JR.
AARON H. GOULD
DATE: January 22, 2024
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FILED: NEW YORK COUNTY CLERK 01/22/2024 06:26 PM INDEX NO. 150605/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SAINT PETER’S UNIVERSITY Index No. Petitioner, PETITION AND AFFIRMATION OF v. GOOD FAITH IN SUPPORT OF MOTION TO ENFORCE NUSSBAUM LOWINGER LLP CPLR § 3119 SUBPOENA FOR TESTIMONY Respondent. AARON H. GOULD, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following statements under penalties of perjury: 1. I am a partner of the law firm of Connell Foley LLP, attorneys for petitioner Saint Peter’s University (“Petitioner”). I am fully familiar with the facts and circumstances of this action and the matters set forth herein. 2. I submit this Affirmation of Good Faith in support of Petitioners' application for an Order pursuant to CPLR §§ 2308, 3124 and 3125 compelling Nussbaum Lowinger LLP to produce documents and appear for its deposition in compliance with a duly served subpoena, which was previously returnable on December 13, 2023, pursuant to the Uniform Interstate Deposition and Discovery Act and CPLR § 3119, at the offices of Connell Foley LLP, 875 Third Avenue, 21st Floor, New York, New York 10022, and for such other and further relief as this Court deems just, equitable and proper. 3. I further submit this Affidavit pursuant to Uniform Rule 202.7 for The Supreme Court and The County Court to advise the Court of our good faith efforts to confer with Nussbaum Lowinger LLP in order to resolve the issues raised by this motion without Court intervention. 4. The relief sought in this Petition is related to an action that was commenced in the Superior Court of New Jersey, Hudson County, Chancery Division, entitled Glenwood Manor LLC v. 14564577-2 1 of 4 FILED: NEW YORK COUNTY CLERK 01/22/2024 06:26 PM INDEX NO. 150605/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/2024 Saint Peter’s University, Docket No.: HUD-C-97-23 (“the Action”), on or about July 12, 2023. The requested document production and deposition of Nussbaum Lowinger LLP is necessary in the Action because Glenwood Manor LLC has alleged in a Verified Complaint that it possessed certain funds in a dedicated escrow account held by Nussbaum Lowinger LLP for the purchase of certain property from Petitioner and was willing, ready and able to close on the transaction on the prearranged closing date of June 21, 2023 and later amended closing date of June 26, 2023. Glenwood Manor LLC’s actual ability to pay the purchase price of the properties and close on the transaction is a material issue in the Action. 5. Glenwood Manor LLC attached a June 21, 2023 letter signed by Mark J. Nussbaum of Nussbaum Lowinger LLP in its Verified Complaint to support its claims that it had sufficient funds to pay the purchase price and all closing costs for the properties on the closing date. The letter states that Nussbaum Lowinger LLP is “holding Fifteen Million (15,000,000.00) Dollars in escrow [for] the property located at 104 Glenwood Ave; 138-140 Glenwood Ave; 146-152 Glenwood Ave; 850 West Side Ave Jersey [C]ity NJ, on behalf of and at the direction of the above listed Client.” However, Glenwood Manor LLC is not named or identified in the June 21, 2023 escrow letter. See Exhibit A. 6. On November 7, 2023, Petitioner attempted to serve Nussbaum Lowinger LLP (a non- party in the Action with its principal place of business in New York) with a Subpoena Duces Tecum and Ad Testificandum (“the Subpoena”) pursuant to the Uniform Interstate Deposition and Discovery Act and CPLR § 3119, however, Nussbaum Lowinger LLP refused to accept service of the Subpoena. 7. Thereafter, Petitioner successfully served the Subpoena on the New York Department of State pursuant to CPLR § 310-a(c) and Section 121-1505 of the New York Partnership Law. See Exhibit B. -2- 14564577-2 2 of 4 FILED: NEW YORK COUNTY CLERK 01/22/2024 06:26 PM INDEX NO. 150605/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/2024 8. The Subpoena seeks a document production and deposition of Nussbaum Lowinger LLP and was returnable on December 13, 2023 at the offices of Connell Foley LLP, 875 Third Avenue, 21st Floor, New York, New York 10022. Id. 9. After the December 13, 2023 return date, in December 2023, I had a telephone conversation with Michael J. Nussbaum regarding Nussbaum’s production of documents responsive to the Subpoena. I was advised that a production would be provided shortly and Mr. Nussbaum was just backed up on other work. 10. On January 17, 2024, I sent an e-mail to Michael J. Nussbaum following up on our telephone conversation and requesting Nussbaum’s compliance with the Subpoena. See Exhibit C. 11. On January 18, 2024, Mr. Nussbaum responded that he did not have client consent to provide responsive documents and indicated that a court order would be required for Nussbaum to provide further details of the escrow funds it held in its accounts. Id. 12. On January 19, 2024, Connell Foley sent a follow-up letter to Nussbaum Lowinger LLP, via electronic mail, advising Nussbaum that if it continued refuse to comply with the Subpoena, Connell Foley would be forced to file a petition to enforce the Subpoena. See Exhibit D. 13. To date, Nussbaum Lowinger LLP has not appeared or produced any documents pursuant to the Subpoena. 14. Glenwood Manor LLC’s Verified Complaint relies in part on Nussbaum Lowinger LLP’s June 21, 2023 correspondence which indicates that it held $15,000,000 in an escrow account for the purchase of certain properties from Petitioner. Glenwood Manor’s ability to purchase and close the transaction on the prearranged closing date is a central issue in the Action, and therefore Nussbaum Lowinger LLP must be ordered to produce the requested documents and to provide testimony. 15. Petitioner has made good faith attempts to schedule the document production and deposition of Nussbaum Lowinger LLP, but Nussbaum has failed to comply with the Subpoena. -3- 14564577-2 3 of 4 FILED: NEW YORK COUNTY CLERK 01/22/2024 06:26 PM INDEX NO. 150605/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/2024 16. WHEREFORE, Petitioner respectfully requests that this Honorable Court grant its motion to compel non-party Nussbaum Lowinger LLP to produce documents and appear for a deposition, on March 11, 2024 at the offices of Connell Foley LLP, 875 Third Avenue, 21st Floor, New York, New York 10022, based on a subpoena which was previously duly served and noticed pursuant to the Uniform Interstate Deposition and Discovery Act and CPLR § 3119, and for such other and further relief as this Court deems just, equitable and proper. CONNELL FOLEY LLP Leo J. Hurley, Jr. Aaron H. Gould Harborside 5 185 Hudson Street, Suite 2510 Jersey City, New Jersey 07311 Attorneys for Defendant Saint Peter’s University BY: /s/ Aaron H. Gould LEO J. HURLEY, JR. AARON H. GOULD DATE: January 22, 2024 -4- 14564577-2 4 of 4