Preview
FILED: KINGS COUNTY CLERK 04/29/2024
03/25/2022 08:51
05:00 PM INDEX NO. 512236/2021
NYSCEF DOC. NO. 134
59 RECEIVED NYSCEF: 04/29/2024
03/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS MOTION SEQUENCE 003
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JEANNE METZGER,
Plaintiff,
- against - Index No.: 512236/2021
MYRL MANLEY, M.D., MARK VOGEL, Ph.D.,
EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE NOTICE OF MOTION TO STRIKE
POSSEMATO, CURTIS NEWSOME, and EDUCATION DEFENDANTS’ ANSWERS OR TO
PLUS CORP. d/b/a THE FAMILY FOUNDATION COMPEL DISCOVERY
SCHOOL,
Defendants.
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C O U N S E L:
PLEASE TAKE NOTICE, that upon the annexed affirmation of Jessica Woodrow dated March 25,
2022 and upon all of the pleadings and prior proceedings had herein, the undersigned will move this Court
in the Supreme Court of the State of New York, Kings County, located at 360 Adams Street, Brooklyn,
New York, 11201, on April 15, 2022 at 9:30 a.m. in the forenoon of that day, or as soon thereafter as counsel
can be heard, for an order striking Defendants’ Answers or for a Conditional Order striking Defendants’
Answers, and for such further relief as the Court deems proper and just.
PLEASE TAKE FURTHER NOTICE, that under CPLR Rule 2214(b), answering papers, if any,
must be served and filed at least seven days before the return date of this motion.
Dated: Sea Cliff, New York
March 25, 2022
Yours, etc.
JESSICA WOODROW
Attorney for Plaintiff Jeanne Metzger
11 Club Road
Sea Cliff, New York 11579
Tel No.: (516) 425-5600
Email: woodrowjessica@gmail.com
By: _______________________________
1
Mot. Seq. 3_Ex 1_001
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TO:
KUTNER FRIEDRICH, LLP
Attorneys for Defendants
MYRL MANLEY, M.D.
950 Third Avenue 11th Floor
New York, New York 10022
Tel No.: 212-308-0210| Fax No.: (212) 308-0213
Email: ckutneresq@gmail.com
GARSON & JAKUB, LLP
Attorneys for Defendants
MARK VOGEL, Ph.D.
29 Broadway, Ste 1300
New York, New York 10006
Tel: (646) 863-8980
Email: garson@garsonjakub.com
BURKE, SCOLAMIERO & HURD, LLP
Attorneys for Defendants
EMMANUEL ARGIROS,
JAN CHERIPKO, DAWNE
POSSEMATO, EDUCATION
PLUS CORP. d/b/a THE
FAMILY FOUNDATION SCHOOL
7 Washington Square
P.O. Box 15085
Albany, New York 12212-5085 Tel: (518) 826-1386
Email: pete@bshlaw.us
CURTIS NEWSOME
Pro se Defendant
23 Grand Boulevard Binghamton, New York 13905
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JEANNE METZGER,
Plaintiff, Index No.: 512236/2021
- against -
AFFIRMATION IN
MYRL MANLEY, M.D., MARK VOGEL, Ph.D., SUPPORT OF MOTION TO
EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE STRIKE DEFENDANTS’
POSSEMATO, CURTIS NEWSOME, and EDUCATION ANSWERS OR TO COMPEL
PLUS CORP. d/b/a THE FAMILY FOUNDATION DISCOVERY
SCHOOL,
Defendants.
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JESSICA WOODROW, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the truth of the following, under penalties of perjury:
1. I am the attorney for the plaintiff, JEANNE METZGER. As such, I am fully familiar
with the matters set forth below, based on a review of the case file and the investigation materials
contained therein.
2. At the age of 15, plaintiff JEANNE METZGER, was removed from her home in the
middle of the night and driven to Defendants’ notorious “The Family Foundation School” 1
(hereinafter, “FFS”) where she was confined and subjected by Defendants to an institutional campaign
of subjugation, coercion, and indoctrination, which groomed her to submit to, accept, and be
subservient to the institutional and individual abuse by Defendants, which caused and culminated in
the sexual abuse by Defendant CURTIS NEWSOME. Defendant MYRL MANLEY, M.D. was the
psychiatrist ostensibly caring for Jeanne Metzger and supervising the predator Curtis Newsome.
MARK VOGEL, Ph.D. was the Director of Counseling and the staff psychologist ostensibly caring
for Jeanne Metzger and supervising the predator Curtis Newsome.
1
https://www.nytimes.com/2022/01/14/nyregion/family-foundation-school-abuse-lawsuits.html
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3. Pursuant to CPLR § 3126, this Court should strike Defendants’ Answers, or issue a
Conditional Order striking Defendants Answers, for their failure to comply with discovery obligations,
as follows:
a. Plaintiff’s Demand for the Production of Documents dated July 29, 2021 (see
Exhibit “1,” annexed hereto).
- The response by the FFS2 defendants, dated August 26, 2021 is
substantially non-responsive to the plaintiff’s demand. (See Exhibit “2,”
annexed hereto). On August 26, 2021, the defense indicated it would
conduct a search for documents responsive to Plaintiff’s demands “1”
through “65,” but to date have not produced them. Nor have
Defendants provided a meaningful response to, inter alia, Plaintiff’s
Demand for Content of Insurance Agreement; Demand for Witnesses;
Demand for Written Policies, Procedures and Protocols; Demand for
Minutes of Interviews; Demand for Business, Administrative, and All
Other [Non-Medical] Records of Plaintiff; Demand for Statements of
Treating Doctors and Nurses and Other Treating Staff; and Demand for
Bill of Particulars as to Affirmative Defenses.
- Myrl Manley, MD has not responded to this demand.
- Mark Vogel, PhD has not responded to this demand.3
- Curtis Newsome has not responded to this demand.
b. Plaintiff’s First Supplemental Request for Production of Documents for
Discovery and Inspection dated September 23, 2021(Exhibit “3”).
- Emmanuel Argiros has not responded to this demand.
- The FFS defendants have not responded to this demand.
c. This Court’s Case Management Order (NYSCEF Doc. No. 3).
- The FFS defendants have not responded to this Order.
- Myrl Manley, MD has not responded to this Order.
- Mark Vogel PhD has not responded to this demand.
- Curtis Newsome has not responded to this Order.
4. Case Management Order No. 1, dated February 24, 2021, (NYSCEF Doc. No. 02)
(“the Order”), directed Defendants to, inter alia, serve responses and/or objections to Standard
2 Defendants Emmanuel Argiros, Jan Cheripko, Dawne Possemato, Curtis Newsome, and
Education Plus Corp. D/B/A The Family Foundation School.
3
Discovery is stayed against Defendant Vogel only pending resolution of Defendant’s Motion to
Dismiss, Mot. Seq. No. 1.
2
Mot. Seq. 3_Ex 1_004
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Combined Demands/Notices to Produce no later than 40 days after receipt. A copy of the Order is
annexed hereto as Exhibit “4.”
5. Because Defendants were directly involved with the allegations in the instant action,
in that they were the school facility at which Plaintiff was abused – specifically, the owner, Chief
Executive Officer, administrator, FFS Board of Directors Member(s), and the Family Leaders
employed by Defendant FFS, respectively – they are aptly in custody of relevant information and
documents necessary to the prosecution of the instant action.
6. On or about December 2, 2021, your affirmant spoke with defense counsel for the
FFS defendants, who indicated he would make a search and provide all available materials. During
that telephone conversation, defense counsel also stated that some of the demanded documents
(personnel files for defendants Jan Cheripko, Dawne Possemato, and Curtis Newsome) were already
in counsel’s possession, “sitting on [his] desk” next to him, and promised to mail those materials to
Plaintiff’s counsel that day or, at the latest, the following day. Despite defense counsel’s assurances
that these materials were in hand and would be forwarded to Plaintiff’s counsel immediately, defense
counsel failed to produce a single document.
7. During the same telephone conversation on or about December 2, 2021, defense
counsel also stated to Plaintiff’s counsel that he had been present for, and represented, defendant
Emmanuel Argiros at a two-day deposition in another lawsuit against FFS in 2018, John Doe v. Education
Plus, Corp. et al, Delaware Supreme Civil Index No. 2014-1045, wherein Argiros testified about the
sexual abuse perpetrated against the plaintiff in this matter, Jeanne Metzger, by Defendant Curtis
Newsome; counsel stated that he had, or could easily re-acquire, a copy of the two-volume transcript
of that deposition along with all exhibits thereto, including several police reports and internal
investigation reports prepared by FFS. Defendants never produced the transcripts or exhibits thereto.
3
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8. Defendants have not produced documents responsive to Plaintiff’s Requests, nor
asserted any objection to those Requests, nor made any requests to stipulate to an extension of their
deadline. As such, Defendants are willfully and contumaciously refusing to comply with Case
Management Order No. 2, in addition to withholding documents demanded by Plaintiff that are
known to be in their possession, including but not limited to:
a. The two-volume transcript of the July 30—31, 2018 deposition of Defendant
Emmanuel Argiros, wherein Argiros testified about the sexual abuse of the
plaintiff in this matter, Jeanne Metzger, by Defendant Curtis Newsome.
Defendant Argiros’ testimony therein was the basis for a finding of
spoliation and contumacious conduct, which resulted in Defendants’
preclusion from offering any evidence in support of their defenses at trial.
See Exhibit “3,” ¶ 1—3 (Plaintiff’s Demand); a copy of the April 1, 2019
Decision and Order precluding Defendants is annexed hereto as Exhibit “5.”
b. Documents relating to or referring to Defendants’ awareness or knowledge
about child sex abuse, including all reports of sexual abuse perpetrated against
students enrolled at FFS. Defendant Argiros acknowledged that “he was aware
of other alleged incidents of sexual abuse at the school by and against students
other than Plaintiff” and testified that “reports of such incidents” were made and
kept on file.4 See Exhibit “5” at 2—3.
c. The full transcripts and/or recordings of testimony by any of the Defendants in
any civil case arising in whole or part from allegations of sexual abuse at FFS.
Upon information and belief, at least four such civil suits brought against FFS
under the Child Victim’s Act were settled in October of 2021, after depositions
were completed.5
d. Copies of State Police reports and/or other writings prepared by the police or
any other governmental agencies in connection with investigations of incidents
of sexual abuse at FFS, including but not limited to a four-page New York State
Incident Report specifically relating to Curtis Newsome’s sexual abuse of
Plaintiff, Case No. 14—93, annexed to the above-mentioned transcript of
Argiros’ 2018 deposition. See Exhibit “3,” ¶ 5.
e. A copy of FFS’ Philadelphia Insurance Company policy, which, upon
information and belief, has much higher policy limits than disclosed by defense
counsel. Defendants’ Response to Plaintiff’s demand comprised a single sentence
stating that a policy exists, but failed to provide a policy number; proof of limits;
insuring agreements in excess of, stackable, umbrella, or which supplement, the
4
Defendant Argiros admitted to shredding the files, but later claimed to have located some – but
not all – of the documents responsive to Plaintiff’s demands.
5
https://www.nytimes.com/2022/01/14/nyregion/family-foundation-school-abuse-lawsuits.html
4
Mot. Seq. 3_Ex 1_006
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primary insurance agreement; or a copy of the policy; as required under CPLR §
3101(f).
f. Personnel files for Defendants Emmanuel Argiros, Jan Cheripko, Dawne
Possemato, and Curtis Newsome. During a telephone call with Plaintiff’s counsel
on or about December 2, 2021, defense counsel represented that these files were
“sitting on [his] desk” next to him, and that counsel would mail them that day or,
at the latest, the following day.
g. To the extent that there are no documents responsive to one or more of
Plaintiff’s specific discovery demands, affidavits by Defendants and their counsel
attesting their efforts to comply with each demand and the extent of their search
for responsive documents in particular, in accordance with Jackson v. City of New
York, 185 AD2d 768 [1st Dept. 1992].
9. Indeed, as this is not the first case in which defendants have appeared to defend against
similar claims as those in the instant action, Defendants should be in possession of many, if not most,
of the documents that Plaintiff has demanded. Nevertheless, Defendants have neither responded with
any objections, nor requested any extensions to respond, nor replied to any of Plaintiff’s good faith
attempts to obtain compliance, stonewalling discovery and causing prejudice to Plaintiff’s case.
10. Indeed, even the paltry production of documents produced by the FFS defendants –
a whopping 337 pages supposedly comprising Plaintiff’s complete student file, much of which consists
of duplicates – is clearly curated, and responsive documents have obviously been withheld. By way of
example, a July 7, 2013 progress note created by one of Plaintiff’s counselors at FFS, Ann Lewis,
states: “Jeanne reported sexual abuse and understood that as a mandated reporter, I need to place a
report. (a written report regarding this event and the reporting is a separate document.).” A
copy of Lewis’ progress note is annexed hereto as Exhibit “6” (emphasis added). Yet Lewis’ written
report is notably absent from Plaintiff’s student file. Likewise, there are no documents related to any
kind of internal investigation conducted by FFS, no copies of police reports, and no statements
provided by the other students who also accused Newsome. In short, FFS withheld any documents
that might shed light on Newsome’s sexual abuse of Plaintiff.
5
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11. Further, to the extent that the FFS defendants responded with conclusory, boilerplate
objections, they should be stricken. Anonymous v. High Sch. For Envtl. Studies, 32 A.D.3d 353, 356 (1st
Dep’t 2006) (“Boilerplate objections [which are] ‘purely conclusory and devoid of reason’ … should
be stricken.”).
12. Given Defendants’ abject failure to satisfy their discovery obligations, their Answers
should be stricken.
13. Plaintiff has made no previous application for the relief sought herein. This is not a
frivolous motion.
WHEREFORE, it is respectfully requested that this Court issue an Order, pursuant to
C.P.L.R. § 3124 striking Defendants’ Answers, or issue a Conditional Order striking Defendants
Answers. For the foregoing reasons, Plaintiff respectfully requests that the instant motion be granted
in its entirety, together with such other and further relief as it may deem just and proper.
Dated: New York, New York
March 25, 2022
JESSICA WOODROW
Attorney for Plaintiff Jeanne Metzger
11 Club Road
Sea Cliff, New York 11579
Tel No.: (516) 425-5600
Email: woodrowjessica@gmail.com
By: _______________________________
JESSICA WOODROW
6
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RULE 202.8-B CERTIFICATION
I certify that the number of words in this affirmation comply with the Rule 202.8-b of this Court.
This affirmation, excluding the caption, tables and signature block, contains 1779 words.
Dated: Sea Cliff, New York
March 25, 2022
Jessica Woodrow
7
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
JEANNE METZGER,
Plaintiff, Index No.: 412236/2021
- against -
AFFIRMATION OF GOOD
MYRL MANLEY, M.D., MARK VOGEL, Ph.D., FAITH ATTEMPT TO OBTAIN
EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE DISCOVERY
POSSEMATO, CURTIS NEWSOME, and EDUCATION
PLUS CORP. d/b/a THE FAMILY FOUNDATION
SCHOOL,
Defendants.
------------------------------------------------------------------------X
JESSICA WOODROW,, an attorney admitted to practice before the Courts of this
State affirms the truth of the following under the penalty of perjury:
1. I am the attorney for the Plaintiff in the above-entitled action and make this affirmation in
relation to the Plaintiff's motion to strike Defendants’ Answers or for a Conditional Order
striking Defendants’ Answers.
2. Good-faith efforts have been made to resolve the issues raised by the motion.
3. Specifically, on or about February 8, 2022, co-counsel spoke with defense counsel for the
“Family Foundation School” defendants, who indicated he would make a search and provide the
available material. However, the material has not been produced.
4. On March 18, 2022, all defendants were served with a Notice of Good Faith Attempt to
Obtain Outstanding Discovery, but no outstanding discovery has been received.
Dated: Sea Cliff, New York
March 25, 2022
JESSICA WOODROW
1
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NYSCEF DOC. NO. 19 . RECEIVED NYSCEF: 07/29/2021
Jessica Woodrow, Esq.
11 Club Road
Sea Cliff, New York 11579
(516) 425-5600 | woodrowjessica@gmail.com
July 29, 2021
KUTNER FRIEDRICH, LLP
950 Third Avenue 11th Floor
New York, New York 10022
GARSON & JAKUB, LLP
29 Broadway, Ste 1300
New York, New York 10006
BURKE, SCOLAMIERO & HURD, LLP
7 Washington Square
P.O. Box 15085
Albany, New York 12212-5085
CURTIS NEWSOME
23 Grand Boulevard
Binghamton, New York 13905
Re: Jeanne Metzger v. Myrl Manley, M.D., et al.
Index No. 512236/2021
Dear Sirs:
For service upon you, enclosed please find Plaintiff's Combined Discovery Demands in
connection with the above-referenced matter.
Very truly yours, .
JESSICA WOODROW
JAW:
Encl.
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FILED: KINGS COUNTY CLERK 7 :
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/29/2021
SUPREMECOURTOF THE STATE OF NEW YORK
COUNTY OF KINGS
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JEANNE METZGER,
Plaintiff, PLAINTIFF'S FIRST
REQUEST FOR
PRODUCTIONOF
-against- DOCUMENTS FOR
DISCOVERY AND
INSPECTION
MYRL MANLEY, M.D., MARK VOGEL, Ph.D., Index No.:512236/2021
EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE
POSSEMATO, CURTIS NEWSOME, and EDUCATION
PLUS CORP.d /a THE FAMILY FOUNDATION
SCHOOL,
Defendants.
---------------------------------------------------------x
PLAINTIFF'S COMBINED DISCOVERY DEMANDS
L PLAINTIFF'S FIRST DEMAND FOR THE PRODUCTIONOF DOCUMENTSTO
DEFENDANTS MYRL MANLEY, M.D., VOGEL, Ph.D., MARK
EMMANUEL
ARGIROS, JAN CHERIPKO, DAWNE POSSEMATO, CURTIS NEWSOME, and
EDUCATION PLUSCORP. d/b/a THE FAMILY FOUNDATION SCHOOL
PLEASE TAKE NOTICE that Plaintiff requires Defendants MYRL MANLEY, M.D.
("MANLEY"), MARK VOGEL, Ph.D. ("VOGEL"), EMMANUEL ARGIROS, JAN
CHERIPKO, DAWNE POSSEMATO, CURTIS NEWSOME. and EDUCATION PLUS CORP.
d/b/a THE FAMILY FOUNDATION SCHOOL to produce for inspection and copying the
followingdocumentswithin twenty (20)daysto Jessica Woodrow, Esq., 11 Club Road,SeaCliff,
New York 11579.
This is a continuing demand. Should any such material come into your possession, custody
or control, or into the possession, custody or control of any party you represent in this action, after
the date of this demand, demand is hereby made that you produce such material at the
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EŠLED : KINGS COUNTY CLERK :
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undersigneds office for inspection and copying on the aforesaid date or twenty (20) days after you,
or said party, obtain possession, custody or control of same, whichever is later. (See Tai Tran v.
New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 756 N.Y.S.2d 509 (2003)).
Should any such material come into your possession, custody or control, or into the
possession, custody or control of any party you represent in this action, after the date of this
demand and less than twenty (20) days before the scheduled deposition of any party or witness in
this action, or less than twenty (20) days before the trial date of this action is scheduled to
commence, demand is hereby made that you immediately notify the attorneys making this demand,
by a means and method that is calculated to provide actual and meaningful notice before the date
of the scheduled deposition or trial, of the existence of all such material.
GENERAL INSTRUCTIONS AND DEFINITIONS
Unless the context indicates otherwise, the following definitions apply to each category of
documents listed below and are incorporated by reference into each specific request for documents:
"you," "your," M.D.,"
1. As used herein, the terms "MYRL MANLEY, "MARK
Ph.D," ARGIROS," CHERIPKO," POSSEMATO,"
VOGEL. "EMMANUEL "JAN "DAWNE
SCHOOL"
"EDUCATION PLUS CORP. d/b/a THE FAMILY FOUNDATION (hereinafter
NEWSOME"
"FFS") and "CURTIS refer to Defendants Myrl Manley, M.D., Mark Vogel, Ph.D.,
Emmanuel Argiros, Jan Cheripko, Dawne Possemato, Education Plus Corp. d/b/a The Family
Foundation School, and Curtis Newsome including, any of their subsidiaries and any of their
employees, agents, contractors or representatives. This includes, but is not limited to, secretaries,
schools, principals, teachers, coaches, employees, boards, directors, subsidiaries, counselors,
2
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: KINGS CLERK :
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/29/2021
associates, investigators, independent contractors, agents, representatives, accountants, volunteers,
attorneys, and affiliated business entities, schools, any affiliated or parent entities of any form.
"Complaint"
2. As used herein, the tenn means the Child Victims Act Litigation
Complaint served in the matter with the above-referenced Index Number.
"Plaintiff"
3. As used herein, the term means the plaintiff identified in the Complaint.
"employee"
4. As used herein, the term shall refer to any employee of defendants and
includes, but is not limited to, teachers, aides, mental health providers, coaches, staff, and the like.
5. As used herein, the singular shall include the plural, and vice versa. The disjunctive
"All"
("or") shall include the conjunctive ("and"), and vice versa. shall be construed to include the
"each," "each" "every," "every"
word
Preview
FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 59 RECEIVED NYSCEF: 04/29/2024 03/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MOTION SEQUENCE 003 -------------------------------------------------------------------------X JEANNE METZGER, Plaintiff, - against - Index No.: 512236/2021 MYRL MANLEY, M.D., MARK VOGEL, Ph.D., EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE NOTICE OF MOTION TO STRIKE POSSEMATO, CURTIS NEWSOME, and EDUCATION DEFENDANTS’ ANSWERS OR TO PLUS CORP. d/b/a THE FAMILY FOUNDATION COMPEL DISCOVERY SCHOOL, Defendants. -------------------------------------------------------------------------X C O U N S E L: PLEASE TAKE NOTICE, that upon the annexed affirmation of Jessica Woodrow dated March 25, 2022 and upon all of the pleadings and prior proceedings had herein, the undersigned will move this Court in the Supreme Court of the State of New York, Kings County, located at 360 Adams Street, Brooklyn, New York, 11201, on April 15, 2022 at 9:30 a.m. in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order striking Defendants’ Answers or for a Conditional Order striking Defendants’ Answers, and for such further relief as the Court deems proper and just. PLEASE TAKE FURTHER NOTICE, that under CPLR Rule 2214(b), answering papers, if any, must be served and filed at least seven days before the return date of this motion. Dated: Sea Cliff, New York March 25, 2022 Yours, etc. JESSICA WOODROW Attorney for Plaintiff Jeanne Metzger 11 Club Road Sea Cliff, New York 11579 Tel No.: (516) 425-5600 Email: woodrowjessica@gmail.com By: _______________________________ 1 Mot. Seq. 3_Ex 1_001 1 of 2 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 59 RECEIVED NYSCEF: 04/29/2024 03/25/2022 TO: KUTNER FRIEDRICH, LLP Attorneys for Defendants MYRL MANLEY, M.D. 950 Third Avenue 11th Floor New York, New York 10022 Tel No.: 212-308-0210| Fax No.: (212) 308-0213 Email: ckutneresq@gmail.com GARSON & JAKUB, LLP Attorneys for Defendants MARK VOGEL, Ph.D. 29 Broadway, Ste 1300 New York, New York 10006 Tel: (646) 863-8980 Email: garson@garsonjakub.com BURKE, SCOLAMIERO & HURD, LLP Attorneys for Defendants EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE POSSEMATO, EDUCATION PLUS CORP. d/b/a THE FAMILY FOUNDATION SCHOOL 7 Washington Square P.O. Box 15085 Albany, New York 12212-5085 Tel: (518) 826-1386 Email: pete@bshlaw.us CURTIS NEWSOME Pro se Defendant 23 Grand Boulevard Binghamton, New York 13905 2 Mot. Seq. 3_Ex 1_002 2 of 2 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------------X JEANNE METZGER, Plaintiff, Index No.: 512236/2021 - against - AFFIRMATION IN MYRL MANLEY, M.D., MARK VOGEL, Ph.D., SUPPORT OF MOTION TO EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE STRIKE DEFENDANTS’ POSSEMATO, CURTIS NEWSOME, and EDUCATION ANSWERS OR TO COMPEL PLUS CORP. d/b/a THE FAMILY FOUNDATION DISCOVERY SCHOOL, Defendants. ------------------------------------------------------------------------------X JESSICA WOODROW, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, under penalties of perjury: 1. I am the attorney for the plaintiff, JEANNE METZGER. As such, I am fully familiar with the matters set forth below, based on a review of the case file and the investigation materials contained therein. 2. At the age of 15, plaintiff JEANNE METZGER, was removed from her home in the middle of the night and driven to Defendants’ notorious “The Family Foundation School” 1 (hereinafter, “FFS”) where she was confined and subjected by Defendants to an institutional campaign of subjugation, coercion, and indoctrination, which groomed her to submit to, accept, and be subservient to the institutional and individual abuse by Defendants, which caused and culminated in the sexual abuse by Defendant CURTIS NEWSOME. Defendant MYRL MANLEY, M.D. was the psychiatrist ostensibly caring for Jeanne Metzger and supervising the predator Curtis Newsome. MARK VOGEL, Ph.D. was the Director of Counseling and the staff psychologist ostensibly caring for Jeanne Metzger and supervising the predator Curtis Newsome. 1 https://www.nytimes.com/2022/01/14/nyregion/family-foundation-school-abuse-lawsuits.html 1 Mot. Seq. 3_Ex 1_003 1 of 7 FILED: KINGS COUNTY CLERK 03/25/2022 04/29/2024 05:00 08:51 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 3. Pursuant to CPLR § 3126, this Court should strike Defendants’ Answers, or issue a Conditional Order striking Defendants Answers, for their failure to comply with discovery obligations, as follows: a. Plaintiff’s Demand for the Production of Documents dated July 29, 2021 (see Exhibit “1,” annexed hereto). - The response by the FFS2 defendants, dated August 26, 2021 is substantially non-responsive to the plaintiff’s demand. (See Exhibit “2,” annexed hereto). On August 26, 2021, the defense indicated it would conduct a search for documents responsive to Plaintiff’s demands “1” through “65,” but to date have not produced them. Nor have Defendants provided a meaningful response to, inter alia, Plaintiff’s Demand for Content of Insurance Agreement; Demand for Witnesses; Demand for Written Policies, Procedures and Protocols; Demand for Minutes of Interviews; Demand for Business, Administrative, and All Other [Non-Medical] Records of Plaintiff; Demand for Statements of Treating Doctors and Nurses and Other Treating Staff; and Demand for Bill of Particulars as to Affirmative Defenses. - Myrl Manley, MD has not responded to this demand. - Mark Vogel, PhD has not responded to this demand.3 - Curtis Newsome has not responded to this demand. b. Plaintiff’s First Supplemental Request for Production of Documents for Discovery and Inspection dated September 23, 2021(Exhibit “3”). - Emmanuel Argiros has not responded to this demand. - The FFS defendants have not responded to this demand. c. This Court’s Case Management Order (NYSCEF Doc. No. 3). - The FFS defendants have not responded to this Order. - Myrl Manley, MD has not responded to this Order. - Mark Vogel PhD has not responded to this demand. - Curtis Newsome has not responded to this Order. 4. Case Management Order No. 1, dated February 24, 2021, (NYSCEF Doc. No. 02) (“the Order”), directed Defendants to, inter alia, serve responses and/or objections to Standard 2 Defendants Emmanuel Argiros, Jan Cheripko, Dawne Possemato, Curtis Newsome, and Education Plus Corp. D/B/A The Family Foundation School. 3 Discovery is stayed against Defendant Vogel only pending resolution of Defendant’s Motion to Dismiss, Mot. Seq. No. 1. 2 Mot. Seq. 3_Ex 1_004 2 of 7 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 Combined Demands/Notices to Produce no later than 40 days after receipt. A copy of the Order is annexed hereto as Exhibit “4.” 5. Because Defendants were directly involved with the allegations in the instant action, in that they were the school facility at which Plaintiff was abused – specifically, the owner, Chief Executive Officer, administrator, FFS Board of Directors Member(s), and the Family Leaders employed by Defendant FFS, respectively – they are aptly in custody of relevant information and documents necessary to the prosecution of the instant action. 6. On or about December 2, 2021, your affirmant spoke with defense counsel for the FFS defendants, who indicated he would make a search and provide all available materials. During that telephone conversation, defense counsel also stated that some of the demanded documents (personnel files for defendants Jan Cheripko, Dawne Possemato, and Curtis Newsome) were already in counsel’s possession, “sitting on [his] desk” next to him, and promised to mail those materials to Plaintiff’s counsel that day or, at the latest, the following day. Despite defense counsel’s assurances that these materials were in hand and would be forwarded to Plaintiff’s counsel immediately, defense counsel failed to produce a single document. 7. During the same telephone conversation on or about December 2, 2021, defense counsel also stated to Plaintiff’s counsel that he had been present for, and represented, defendant Emmanuel Argiros at a two-day deposition in another lawsuit against FFS in 2018, John Doe v. Education Plus, Corp. et al, Delaware Supreme Civil Index No. 2014-1045, wherein Argiros testified about the sexual abuse perpetrated against the plaintiff in this matter, Jeanne Metzger, by Defendant Curtis Newsome; counsel stated that he had, or could easily re-acquire, a copy of the two-volume transcript of that deposition along with all exhibits thereto, including several police reports and internal investigation reports prepared by FFS. Defendants never produced the transcripts or exhibits thereto. 3 Mot. Seq. 3_Ex 1_005 3 of 7 FILED: KINGS COUNTY CLERK 03/25/2022 04/29/2024 05:00 08:51 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 8. Defendants have not produced documents responsive to Plaintiff’s Requests, nor asserted any objection to those Requests, nor made any requests to stipulate to an extension of their deadline. As such, Defendants are willfully and contumaciously refusing to comply with Case Management Order No. 2, in addition to withholding documents demanded by Plaintiff that are known to be in their possession, including but not limited to: a. The two-volume transcript of the July 30—31, 2018 deposition of Defendant Emmanuel Argiros, wherein Argiros testified about the sexual abuse of the plaintiff in this matter, Jeanne Metzger, by Defendant Curtis Newsome. Defendant Argiros’ testimony therein was the basis for a finding of spoliation and contumacious conduct, which resulted in Defendants’ preclusion from offering any evidence in support of their defenses at trial. See Exhibit “3,” ¶ 1—3 (Plaintiff’s Demand); a copy of the April 1, 2019 Decision and Order precluding Defendants is annexed hereto as Exhibit “5.” b. Documents relating to or referring to Defendants’ awareness or knowledge about child sex abuse, including all reports of sexual abuse perpetrated against students enrolled at FFS. Defendant Argiros acknowledged that “he was aware of other alleged incidents of sexual abuse at the school by and against students other than Plaintiff” and testified that “reports of such incidents” were made and kept on file.4 See Exhibit “5” at 2—3. c. The full transcripts and/or recordings of testimony by any of the Defendants in any civil case arising in whole or part from allegations of sexual abuse at FFS. Upon information and belief, at least four such civil suits brought against FFS under the Child Victim’s Act were settled in October of 2021, after depositions were completed.5 d. Copies of State Police reports and/or other writings prepared by the police or any other governmental agencies in connection with investigations of incidents of sexual abuse at FFS, including but not limited to a four-page New York State Incident Report specifically relating to Curtis Newsome’s sexual abuse of Plaintiff, Case No. 14—93, annexed to the above-mentioned transcript of Argiros’ 2018 deposition. See Exhibit “3,” ¶ 5. e. A copy of FFS’ Philadelphia Insurance Company policy, which, upon information and belief, has much higher policy limits than disclosed by defense counsel. Defendants’ Response to Plaintiff’s demand comprised a single sentence stating that a policy exists, but failed to provide a policy number; proof of limits; insuring agreements in excess of, stackable, umbrella, or which supplement, the 4 Defendant Argiros admitted to shredding the files, but later claimed to have located some – but not all – of the documents responsive to Plaintiff’s demands. 5 https://www.nytimes.com/2022/01/14/nyregion/family-foundation-school-abuse-lawsuits.html 4 Mot. Seq. 3_Ex 1_006 4 of 7 04/29/2024 05:00 FILED: KINGS COUNTY CLERK 03/25/2022 08:51 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 primary insurance agreement; or a copy of the policy; as required under CPLR § 3101(f). f. Personnel files for Defendants Emmanuel Argiros, Jan Cheripko, Dawne Possemato, and Curtis Newsome. During a telephone call with Plaintiff’s counsel on or about December 2, 2021, defense counsel represented that these files were “sitting on [his] desk” next to him, and that counsel would mail them that day or, at the latest, the following day. g. To the extent that there are no documents responsive to one or more of Plaintiff’s specific discovery demands, affidavits by Defendants and their counsel attesting their efforts to comply with each demand and the extent of their search for responsive documents in particular, in accordance with Jackson v. City of New York, 185 AD2d 768 [1st Dept. 1992]. 9. Indeed, as this is not the first case in which defendants have appeared to defend against similar claims as those in the instant action, Defendants should be in possession of many, if not most, of the documents that Plaintiff has demanded. Nevertheless, Defendants have neither responded with any objections, nor requested any extensions to respond, nor replied to any of Plaintiff’s good faith attempts to obtain compliance, stonewalling discovery and causing prejudice to Plaintiff’s case. 10. Indeed, even the paltry production of documents produced by the FFS defendants – a whopping 337 pages supposedly comprising Plaintiff’s complete student file, much of which consists of duplicates – is clearly curated, and responsive documents have obviously been withheld. By way of example, a July 7, 2013 progress note created by one of Plaintiff’s counselors at FFS, Ann Lewis, states: “Jeanne reported sexual abuse and understood that as a mandated reporter, I need to place a report. (a written report regarding this event and the reporting is a separate document.).” A copy of Lewis’ progress note is annexed hereto as Exhibit “6” (emphasis added). Yet Lewis’ written report is notably absent from Plaintiff’s student file. Likewise, there are no documents related to any kind of internal investigation conducted by FFS, no copies of police reports, and no statements provided by the other students who also accused Newsome. In short, FFS withheld any documents that might shed light on Newsome’s sexual abuse of Plaintiff. 5 Mot. Seq. 3_Ex 1_007 5 of 7 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 11. Further, to the extent that the FFS defendants responded with conclusory, boilerplate objections, they should be stricken. Anonymous v. High Sch. For Envtl. Studies, 32 A.D.3d 353, 356 (1st Dep’t 2006) (“Boilerplate objections [which are] ‘purely conclusory and devoid of reason’ … should be stricken.”). 12. Given Defendants’ abject failure to satisfy their discovery obligations, their Answers should be stricken. 13. Plaintiff has made no previous application for the relief sought herein. This is not a frivolous motion. WHEREFORE, it is respectfully requested that this Court issue an Order, pursuant to C.P.L.R. § 3124 striking Defendants’ Answers, or issue a Conditional Order striking Defendants Answers. For the foregoing reasons, Plaintiff respectfully requests that the instant motion be granted in its entirety, together with such other and further relief as it may deem just and proper. Dated: New York, New York March 25, 2022 JESSICA WOODROW Attorney for Plaintiff Jeanne Metzger 11 Club Road Sea Cliff, New York 11579 Tel No.: (516) 425-5600 Email: woodrowjessica@gmail.com By: _______________________________ JESSICA WOODROW 6 Mot. Seq. 3_Ex 1_008 6 of 7 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 60 RECEIVED NYSCEF: 04/29/2024 03/25/2022 RULE 202.8-B CERTIFICATION I certify that the number of words in this affirmation comply with the Rule 202.8-b of this Court. This affirmation, excluding the caption, tables and signature block, contains 1779 words. Dated: Sea Cliff, New York March 25, 2022 Jessica Woodrow 7 Mot. Seq. 3_Ex 1_009 7 of 7 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 61 RECEIVED NYSCEF: 04/29/2024 03/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X JEANNE METZGER, Plaintiff, Index No.: 412236/2021 - against - AFFIRMATION OF GOOD MYRL MANLEY, M.D., MARK VOGEL, Ph.D., FAITH ATTEMPT TO OBTAIN EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE DISCOVERY POSSEMATO, CURTIS NEWSOME, and EDUCATION PLUS CORP. d/b/a THE FAMILY FOUNDATION SCHOOL, Defendants. ------------------------------------------------------------------------X JESSICA WOODROW,, an attorney admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: 1. I am the attorney for the Plaintiff in the above-entitled action and make this affirmation in relation to the Plaintiff's motion to strike Defendants’ Answers or for a Conditional Order striking Defendants’ Answers. 2. Good-faith efforts have been made to resolve the issues raised by the motion. 3. Specifically, on or about February 8, 2022, co-counsel spoke with defense counsel for the “Family Foundation School” defendants, who indicated he would make a search and provide the available material. However, the material has not been produced. 4. On March 18, 2022, all defendants were served with a Notice of Good Faith Attempt to Obtain Outstanding Discovery, but no outstanding discovery has been received. Dated: Sea Cliff, New York March 25, 2022 JESSICA WOODROW 1 Mot. Seq. 3_Ex 1_010 1 of 1 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 62 RECEIVED NYSCEF: 04/29/2024 03/25/2022 INDEX NO. 512236/2021 FILED: KINGS COUNTY CLERK 07/29/2021 06: 01 Pl4 NYSCEF DOC. NO. 19 . RECEIVED NYSCEF: 07/29/2021 Jessica Woodrow, Esq. 11 Club Road Sea Cliff, New York 11579 (516) 425-5600 | woodrowjessica@gmail.com July 29, 2021 KUTNER FRIEDRICH, LLP 950 Third Avenue 11th Floor New York, New York 10022 GARSON & JAKUB, LLP 29 Broadway, Ste 1300 New York, New York 10006 BURKE, SCOLAMIERO & HURD, LLP 7 Washington Square P.O. Box 15085 Albany, New York 12212-5085 CURTIS NEWSOME 23 Grand Boulevard Binghamton, New York 13905 Re: Jeanne Metzger v. Myrl Manley, M.D., et al. Index No. 512236/2021 Dear Sirs: For service upon you, enclosed please find Plaintiff's Combined Discovery Demands in connection with the above-referenced matter. Very truly yours, . JESSICA WOODROW JAW: Encl. 1 of 45 Mot. Seq. 3_Ex 1_011 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 62 RECEIVED NYSCEF: 04/29/2024 03/25/2022 INDEX NO. 512236/2021 FILED: KINGS COUNTY CLERK 7 : NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/29/2021 SUPREMECOURTOF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------- X JEANNE METZGER, Plaintiff, PLAINTIFF'S FIRST REQUEST FOR PRODUCTIONOF -against- DOCUMENTS FOR DISCOVERY AND INSPECTION MYRL MANLEY, M.D., MARK VOGEL, Ph.D., Index No.:512236/2021 EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE POSSEMATO, CURTIS NEWSOME, and EDUCATION PLUS CORP.d /a THE FAMILY FOUNDATION SCHOOL, Defendants. ---------------------------------------------------------x PLAINTIFF'S COMBINED DISCOVERY DEMANDS L PLAINTIFF'S FIRST DEMAND FOR THE PRODUCTIONOF DOCUMENTSTO DEFENDANTS MYRL MANLEY, M.D., VOGEL, Ph.D., MARK EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE POSSEMATO, CURTIS NEWSOME, and EDUCATION PLUSCORP. d/b/a THE FAMILY FOUNDATION SCHOOL PLEASE TAKE NOTICE that Plaintiff requires Defendants MYRL MANLEY, M.D. ("MANLEY"), MARK VOGEL, Ph.D. ("VOGEL"), EMMANUEL ARGIROS, JAN CHERIPKO, DAWNE POSSEMATO, CURTIS NEWSOME. and EDUCATION PLUS CORP. d/b/a THE FAMILY FOUNDATION SCHOOL to produce for inspection and copying the followingdocumentswithin twenty (20)daysto Jessica Woodrow, Esq., 11 Club Road,SeaCliff, New York 11579. This is a continuing demand. Should any such material come into your possession, custody or control, or into the possession, custody or control of any party you represent in this action, after the date of this demand, demand is hereby made that you produce such material at the 2 of 45 Mot. Seq. 3_Ex 1_012 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 62 RECEIVED NYSCEF: 04/29/2024 03/25/2022 INDEX NO. 512236/2021 EŠLED : KINGS COUNTY CLERK : NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/29/2021 undersigneds office for inspection and copying on the aforesaid date or twenty (20) days after you, or said party, obtain possession, custody or control of same, whichever is later. (See Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 756 N.Y.S.2d 509 (2003)). Should any such material come into your possession, custody or control, or into the possession, custody or control of any party you represent in this action, after the date of this demand and less than twenty (20) days before the scheduled deposition of any party or witness in this action, or less than twenty (20) days before the trial date of this action is scheduled to commence, demand is hereby made that you immediately notify the attorneys making this demand, by a means and method that is calculated to provide actual and meaningful notice before the date of the scheduled deposition or trial, of the existence of all such material. GENERAL INSTRUCTIONS AND DEFINITIONS Unless the context indicates otherwise, the following definitions apply to each category of documents listed below and are incorporated by reference into each specific request for documents: "you," "your," M.D.," 1. As used herein, the terms "MYRL MANLEY, "MARK Ph.D," ARGIROS," CHERIPKO," POSSEMATO," VOGEL. "EMMANUEL "JAN "DAWNE SCHOOL" "EDUCATION PLUS CORP. d/b/a THE FAMILY FOUNDATION (hereinafter NEWSOME" "FFS") and "CURTIS refer to Defendants Myrl Manley, M.D., Mark Vogel, Ph.D., Emmanuel Argiros, Jan Cheripko, Dawne Possemato, Education Plus Corp. d/b/a The Family Foundation School, and Curtis Newsome including, any of their subsidiaries and any of their employees, agents, contractors or representatives. This includes, but is not limited to, secretaries, schools, principals, teachers, coaches, employees, boards, directors, subsidiaries, counselors, 2 3 of 45 Mot. Seq. 3_Ex 1_013 FILED: KINGS COUNTY CLERK 04/29/2024 03/25/2022 08:51 05:00 PM INDEX NO. 512236/2021 NYSCEF DOC. NO. 134 62 RECEIVED NYSCEF: 04/29/2024 03/25/2022 FILED COUNTY INDEX NO. 512236/2021 : KINGS CLERK : NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/29/2021 associates, investigators, independent contractors, agents, representatives, accountants, volunteers, attorneys, and affiliated business entities, schools, any affiliated or parent entities of any form. "Complaint" 2. As used herein, the tenn means the Child Victims Act Litigation Complaint served in the matter with the above-referenced Index Number. "Plaintiff" 3. As used herein, the term means the plaintiff identified in the Complaint. "employee" 4. As used herein, the term shall refer to any employee of defendants and includes, but is not limited to, teachers, aides, mental health providers, coaches, staff, and the like. 5. As used herein, the singular shall include the plural, and vice versa. The disjunctive "All" ("or") shall include the conjunctive ("and"), and vice versa. shall be construed to include the "each," "each" "every," "every" word