Preview
FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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FRANK COSTANZA, ANGELO COSTANZA,
COSTANZA 6 ENTERPRISES, LLC, and
FRANCESCA NINA, LLC,
Plaintiffs, Index No. 627699/2023
-against- AFFIRMATION IN
OPPOSITION TO
MICHAEL J. CAVE (a/k/a Mike Cave), JENNIFER M. CROSS-MOTION
REILLY, ESQ. (a/k/a Jennifer M. Cave), STRONGARM
HOLDINGS, LLC, WILLIAM DOLLARD, BRIAN (Garguilo, J.)
DOLLARD, FIRST EQUITY ABSTRACT CORP.
d/b/a “FIRST EQUITY”, PORT JEFF HOLDINGS
LLC (a/k/a PJH), 41 SUMMIT LLC, STRONGARM
VENTURES, LLC, RIDGE PROPERTY DEVELOPERS,
LLC, PORT RIDGE CONSTRUCTION CORP.,
PROPERTY REHAB I, LLC, NEW YORK
CONSULTING, LLC, PORT JEFFERSON HILLS, LLC,
and UNKNOWN DEFENDANTS #1-20,
Defendants.
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TERESA A. WHITE, an attorney at law duly admitted to practice before the Courts of the
State of New York affirms the following under penalty of perjury:
1. I am a member of Pinks & White, Esqs., attorneys for Defendants, other than
Jennifer M. Reilly, Esq. (a/k/a Jennifer M. Cave), and am fully familiar with the prior pleadings
and proceedings in this action.
2. I submit this affirmation in opposition to the Plaintiff’s cross-motion to quash the
subpoena duces tecum issued by me and duly served upon non-party witness Eugene Fernandez
(“Fernandez”).
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3. Plaintiff moves under CPLR §2304 to quash the subject subpoena duces tecum
"A"
which subpoena was duly served upon Fernandez on February 3, 2024 (Exhibit with
Affidavit of Service - NYSCEF Doc. No. 77). The document demand thereunder was returnable
in our offices on February 21, 2024, and his appearance for deposition was returnable on
February 28, 2024.
4. As is undisputed, Fernandez did not comply with the subpoena.
5. Plaintiffs now, on March 27th, 2024, move to quash the subpoena.
I. PLAINTIFF'S MOTION IS UNTIMELY AND MUST BE DENIED
6. CPLR §2304 provides in pertinent part:
"A motion to quash, fix conditions or modify a subpoena shall be
made promptly in the court in which the subpoena is returnable. If
the subpoena is not returnable in a court, a request to withdraw or
modify the subpoena shall first be made to the person who issued it
and a motion to
quash, fix conditions or modify may thereafter be
court...."
made in the supreme N.Y. C.P.L.R. 2304 (McKinney).
"Promptly"
7. has been interpreted to mean before the return date of the subpoena
which, here, was February 28, 2024, at the latest. No such motion to quash was made prior to
the return date and, as such, Plaintiff's motion to quash must be denied. See Brunswick Hosp.
Ctr.. Inc. v. Hynes, 52 N.Y.2d 333, 420 N.E.2d 51 (1981) and § 384. Motion to Quash Subpoena,
Siegel, N.Y. Prac. § 384 (6th ed.).
8. Here, Plaintiffs have waited until nearly a month after the return date of the
subpoena to make their motion to quash the non-party subpoena and therefore their motion is
untimely and must be denied.
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IL PLAINTIFF'S MOTION IS MERITLESS AS THE NON-PARTY'S TESTIMONY
AND DOCUMENTS ARE RELEVANT TO THE DEFENDANT'S DEFENSE
OF THE ACTION AND PROSECUTION OF THEIR COUNTERCLAIMS.
Fernandez'
A. Testimony is Material and Relevant to the Defense of the Action.
Plaintiffs' Fernandez'
9. counsel contends that the reference to investment of
Plaintiffs'
$500,000.00 towards the $3,600,000.00 as being merely in "passing".
10. Counsel disregards the money laundering claims levelled in his complaint against
"B"
the Defendants (NYSCEF Doc. No. 15 @ P. 45 and Exhibit annexed hereto).
11. "The gravamen of the crime of money laundering is exchanging a minimum of
$10,000 known to be proceeds from conduct criminal in New York State for another monetary
instrument in order to conceal the nature, location, source, ownership or control of the proceeds,
or to assist in the commission of criminal conduct. § 41:1. Introduction, Criminal Law in New
York § 41:1 (4th ed.) citing N.Y. Penal Law § 470.05 (McKinney).
Plaintiffs'
12. Thus, although the amount of the investment into the venture is
acknowledged to have been $3,600,000.00, the source of those funds is absolutely relevant to the
Defendants'
defense particularly as concerns the money laundering allegations.
Fernandez' Defendants'
B. Testimony is Material and Relevant to the Prosecution of
its Counterclaims.
Plaintiffs'
13. counsel also disregards the fact that the Defendants have asserted
Fernandez'
various counterclaims against them for which testimony is material and relevant.
14. Particularly, Defendants have asserted counterclaims for tortious interference,
Plaintiffs'
libel, slander, to which Fernandez is a witness to publicly dissemination of false
Defendants'
information to the harm of the and the real estate project that is at the heart of this
3
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Defendants' "C"
dispute. See Answer with Counterclaims, NYSCEF Doc. No. 62 and Exhibit
annexed hereto.
Plaintiffs' counsels' nexus"
15. claims that there is "no rationale [sp.] between
Fernandez and what he knows and documents he possesses to this litigation is disingenuous, at
Plaintiffs'
best, especially in view of the reference to Fernandez in complaint.
Plaintiffs'
16. Again, contrary to counsel's contentions and incorrectly cited Kooper
v. Kooper, 74 A.D.3d 6 (2d Dept. 2010) which was abrogated by the Court of Appeals in Kapon
v. Koch, 23 N.Y.3d 32, 11 N.E.3d 709 (2014), the testimony and documents sought from
Fernandez is material to this action in multitude of respects and is not so unduly burdensome as
to warrant quashing and Defendants are entitled to liberal discovery under CPLR §3101.
17. The Court ofAppeals in Kapon, supra, held:
necessary"
"We conclude that the "material and standard adopted
by the First and Fourth Departments is the appropriate one and is
in keeping with this state's policy of liberal discovery. The words
necessary"
"material and as used in section 3101 must "be
interpreted liberally to require disclosure, upon request, of any
facts bearing on the controversy which will assist preparation for
prolixity"
trial by sharpening the issues and reducing delay and
(Allen v. Crowell-Collier Publ. Co., 21 N.Y 2d 403, 406, 288
N.Y S.2d 449, 235 N.E.2d 430 [1968]). Section 3101(a)(4) imposes
no requirement that the subpoenaing party demonstrate that it
cannot obtain the requested disclosure from any other source. Thus,
so long as the disclosure sought is relevant to the prosecution or
nonparty."
defense of an action, it must be provided by the Kapon
v. Koch, 23 N.Y.3d 32, 38, 11 N E.3d 709, 714 (2014). Emph.
added.
III. CONCLUSION
Plaintiffs' counsels'
18. Despite attempts at distraction by allusion to a perceived
5th
personal animus against Fernandez and his reference to the Amendment of the United States
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Plaintiffs'
Constitution, those assertions and the arguments contained in cross-motion meritless
and do not meet the criteria to warrant quashing of the subpoena issued to Fernandez under the
Plaintiffs'
CPLR and controlling precedent. In view of the foregoing, the motion pursuant to
CPLR §2304 to quash the subpoena duly served in this action on non-party Eugene Fernandez
must be denied.
WHEREFORE, your affinnant respectfully requests that the court grant an order denying
Defendants'
the motion to quash the subpoena duly issued to non-party Eugene Fernandez and
that it grant such other and further relief as it may deem just, proper, and equitable, including the
costs and disbursements of this motion.
Dated: Hauppauge, New York
March 28, 2024
TERESA A. WHITE
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Preview
FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------X FRANK COSTANZA, ANGELO COSTANZA, COSTANZA 6 ENTERPRISES, LLC, and FRANCESCA NINA, LLC, Plaintiffs, Index No. 627699/2023 -against- AFFIRMATION IN OPPOSITION TO MICHAEL J. CAVE (a/k/a Mike Cave), JENNIFER M. CROSS-MOTION REILLY, ESQ. (a/k/a Jennifer M. Cave), STRONGARM HOLDINGS, LLC, WILLIAM DOLLARD, BRIAN (Garguilo, J.) DOLLARD, FIRST EQUITY ABSTRACT CORP. d/b/a “FIRST EQUITY”, PORT JEFF HOLDINGS LLC (a/k/a PJH), 41 SUMMIT LLC, STRONGARM VENTURES, LLC, RIDGE PROPERTY DEVELOPERS, LLC, PORT RIDGE CONSTRUCTION CORP., PROPERTY REHAB I, LLC, NEW YORK CONSULTING, LLC, PORT JEFFERSON HILLS, LLC, and UNKNOWN DEFENDANTS #1-20, Defendants. -------------------------------------------------------------------X TERESA A. WHITE, an attorney at law duly admitted to practice before the Courts of the State of New York affirms the following under penalty of perjury: 1. I am a member of Pinks & White, Esqs., attorneys for Defendants, other than Jennifer M. Reilly, Esq. (a/k/a Jennifer M. Cave), and am fully familiar with the prior pleadings and proceedings in this action. 2. I submit this affirmation in opposition to the Plaintiff’s cross-motion to quash the subpoena duces tecum issued by me and duly served upon non-party witness Eugene Fernandez (“Fernandez”). 1 of 5 FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024 3. Plaintiff moves under CPLR §2304 to quash the subject subpoena duces tecum "A" which subpoena was duly served upon Fernandez on February 3, 2024 (Exhibit with Affidavit of Service - NYSCEF Doc. No. 77). The document demand thereunder was returnable in our offices on February 21, 2024, and his appearance for deposition was returnable on February 28, 2024. 4. As is undisputed, Fernandez did not comply with the subpoena. 5. Plaintiffs now, on March 27th, 2024, move to quash the subpoena. I. PLAINTIFF'S MOTION IS UNTIMELY AND MUST BE DENIED 6. CPLR §2304 provides in pertinent part: "A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be court...." made in the supreme N.Y. C.P.L.R. 2304 (McKinney). "Promptly" 7. has been interpreted to mean before the return date of the subpoena which, here, was February 28, 2024, at the latest. No such motion to quash was made prior to the return date and, as such, Plaintiff's motion to quash must be denied. See Brunswick Hosp. Ctr.. Inc. v. Hynes, 52 N.Y.2d 333, 420 N.E.2d 51 (1981) and § 384. Motion to Quash Subpoena, Siegel, N.Y. Prac. § 384 (6th ed.). 8. Here, Plaintiffs have waited until nearly a month after the return date of the subpoena to make their motion to quash the non-party subpoena and therefore their motion is untimely and must be denied. 2 2 of 5 FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024 IL PLAINTIFF'S MOTION IS MERITLESS AS THE NON-PARTY'S TESTIMONY AND DOCUMENTS ARE RELEVANT TO THE DEFENDANT'S DEFENSE OF THE ACTION AND PROSECUTION OF THEIR COUNTERCLAIMS. Fernandez' A. Testimony is Material and Relevant to the Defense of the Action. Plaintiffs' Fernandez' 9. counsel contends that the reference to investment of Plaintiffs' $500,000.00 towards the $3,600,000.00 as being merely in "passing". 10. Counsel disregards the money laundering claims levelled in his complaint against "B" the Defendants (NYSCEF Doc. No. 15 @ P. 45 and Exhibit annexed hereto). 11. "The gravamen of the crime of money laundering is exchanging a minimum of $10,000 known to be proceeds from conduct criminal in New York State for another monetary instrument in order to conceal the nature, location, source, ownership or control of the proceeds, or to assist in the commission of criminal conduct. § 41:1. Introduction, Criminal Law in New York § 41:1 (4th ed.) citing N.Y. Penal Law § 470.05 (McKinney). Plaintiffs' 12. Thus, although the amount of the investment into the venture is acknowledged to have been $3,600,000.00, the source of those funds is absolutely relevant to the Defendants' defense particularly as concerns the money laundering allegations. Fernandez' Defendants' B. Testimony is Material and Relevant to the Prosecution of its Counterclaims. Plaintiffs' 13. counsel also disregards the fact that the Defendants have asserted Fernandez' various counterclaims against them for which testimony is material and relevant. 14. Particularly, Defendants have asserted counterclaims for tortious interference, Plaintiffs' libel, slander, to which Fernandez is a witness to publicly dissemination of false Defendants' information to the harm of the and the real estate project that is at the heart of this 3 3 of 5 FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024 Defendants' "C" dispute. See Answer with Counterclaims, NYSCEF Doc. No. 62 and Exhibit annexed hereto. Plaintiffs' counsels' nexus" 15. claims that there is "no rationale [sp.] between Fernandez and what he knows and documents he possesses to this litigation is disingenuous, at Plaintiffs' best, especially in view of the reference to Fernandez in complaint. Plaintiffs' 16. Again, contrary to counsel's contentions and incorrectly cited Kooper v. Kooper, 74 A.D.3d 6 (2d Dept. 2010) which was abrogated by the Court of Appeals in Kapon v. Koch, 23 N.Y.3d 32, 11 N.E.3d 709 (2014), the testimony and documents sought from Fernandez is material to this action in multitude of respects and is not so unduly burdensome as to warrant quashing and Defendants are entitled to liberal discovery under CPLR §3101. 17. The Court ofAppeals in Kapon, supra, held: necessary" "We conclude that the "material and standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state's policy of liberal discovery. The words necessary" "material and as used in section 3101 must "be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for prolixity" trial by sharpening the issues and reducing delay and (Allen v. Crowell-Collier Publ. Co., 21 N.Y 2d 403, 406, 288 N.Y S.2d 449, 235 N.E.2d 430 [1968]). Section 3101(a)(4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or nonparty." defense of an action, it must be provided by the Kapon v. Koch, 23 N.Y.3d 32, 38, 11 N E.3d 709, 714 (2014). Emph. added. III. CONCLUSION Plaintiffs' counsels' 18. Despite attempts at distraction by allusion to a perceived 5th personal animus against Fernandez and his reference to the Amendment of the United States 4 4 of 5 FILED: SUFFOLK COUNTY CLERK 03/28/2024 11:13 AM INDEX NO. 627699/2023 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 03/28/2024 Plaintiffs' Constitution, those assertions and the arguments contained in cross-motion meritless and do not meet the criteria to warrant quashing of the subpoena issued to Fernandez under the Plaintiffs' CPLR and controlling precedent. In view of the foregoing, the motion pursuant to CPLR §2304 to quash the subpoena duly served in this action on non-party Eugene Fernandez must be denied. WHEREFORE, your affinnant respectfully requests that the court grant an order denying Defendants' the motion to quash the subpoena duly issued to non-party Eugene Fernandez and that it grant such other and further relief as it may deem just, proper, and equitable, including the costs and disbursements of this motion. Dated: Hauppauge, New York March 28, 2024 TERESA A. WHITE 5 5 of 5