Preview
FILED: WESTCHESTER COUNTY CLERK 05/13/2024 04:49 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262 RECEIVED NYSCEF: 05/13/2024
Exhibit 1
FILED: WESTCHESTER COUNTY CLERK 05/13/2024 04:49 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262 RECEIVED NYSCEF: 05/13/2024
Amy Baker
From: Amy Baker
Sent: Tuesday, May 7, 2024 3:08 PM
To: Realityking72@aol.com
Subject: Rice v. Einsidler, Index No. 61665/2021
Attachments: 61665_2021_NEIL_B_RICE_v_LEE_R_EINSIDLER_NOTICE_OF_ENTRY_260.pdf
Tracking:
Tracking Recipient Delivery
Realityking72@aol.com
Jonathan Ohring Delivered: 5/7/2024 3:08 PM
Mr. Rice,
As you know, our firm represents Mr. Einsidler in the lawsuit you brought against him. Please see the attached
notice of entry, which annexes the Court’s order that was issued yesterday. A copy of this notice of entry and the
annexed order were filed with the Court today. A copy of the notice of entry and annexed order will also be
delivered to you.
Regards,
Vuankwitt .
LLP
Amy Baker
Administrative Assistant
140 Grand Street, Suite 705
White Plains, New York 10601
(914) 686-1500 (Main)
(914) 487-5000 (Fax)
amy@yankwitt.com
www.yankwitt.com
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FILED: WESTCHESTER COUNTY CLERK 05/13/2024
05/07/2024 04:49
01:24 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262
260 RECEIVED NYSCEF: 05/13/2024
05/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
NEIL B. RICE,
Plaintiff,
Index No. 61665/2021
-against-
NOTICE OF ENTRY
LEE R. EINSIDLER, As Administrator of the Estate
of AARON M. EINSIDLER,
Defendant.
PLEASE TAKE NOTICE that the annexed is a true copy of the Decision and Order on
Motion Sequence #9 (NYSCEF No. 259) signed by the Honorable Hal B. Greenwald, J.S.C. on
May 6, 2024, and entered in the office of the Clerk of the within named Court on May 7, 2024.
Dated: May 7, 2024
White Plains, New York
YANKWITT LLP
By:
Jonathan Ohring
140 Grand Street, Suite 705
White Plains, New York 10601
Tel: (914) 686-1500
Fax: (914) 487-5000
Attorneys for Defendant Lee R. Einsidler
1 of 4
FILED: WESTCHESTER COUNTY CLERK 05/13/2024
05/07/2024 04:49
08:18 PM
01:24 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262
259
260 RECEIVED NYSCEF: 05/13/2024
05/06/2024
05/07/2024
61665/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
----------------------------------------------------------------X
NEIL B. RICE, Index No. 61665/2021
Plaintiff,
-against- DECISION AND ORDER
LEE R EISIDLER, As Administrator of the Estate of MX #9
AARON M. EINSIDLER,
Defendant.
------------------------------------------------------------------X
HON. HAL B. GREENWALD, J.S.C.
The following NYSCEF documents were reviewed and/or read by the Court in determining the
within Decision and Order (Motion Sequence #9):
NYSCEF numbers: 167-200, 205-240
BRIEF RELEVANT PROCEDURAL HISTORY
Plaintiff’s counsel moved by Order to Show Cause (Motion #8) filed June 6, 2023, to be
relieved as counsel. Defendant moved by Notice of Defendant’s Cross Motion (Motion #9) for
Summary Judgment and an Award of Attorney’s Fees under Part 130 and CPLR 830-a on August
10, 2023. Said Order to Show Cause and Cross Motion were adjourned on consent to October 13,
2023, then October 25, 2023. However, plaintiff’s counsel failed to appear on October 25, 2023.
A Court conference was held on November 8, 2023, at which time both plaintiff and defendant
appeared personally and with their respective counsel and the Court orally granted plaintiff’s
counsel’s motion (MX#8) to be relieved. The Court stayed the matter to provide plaintiff with time
to retain new counsel and set the matter down for a conference on January 23, 2024.
However, effective January 1, 2024, the Hon. Hal B. Greenwald was transferred out of the
Westchester County Supreme Court Civil Part to an IAS Part in Rockland County Supreme Court.
By Decision and Order dated December 27, 2023, the Hon. Robert S. Ondrovic, in the absence of
Justice Greenwald confirmed the Court’s granting of plaintiff’s motion to be relieved and changed
the conference date to January 4, 2024, before the Hon. Robert S. Ondrovic. Plaintiff filed a Note
of Issue and certified the matter ready for trial on January 5, 2024
MOTION #9 FOR SUMMARY JUDGMENT
Defendant’s summary judgment motion is premised upon the facts that plaintiff’s claim
could only be substantiated if there was corroborating testimony from the defendants, who are both
deceased. In support of the Cross Motion for Summary Judgment, the defendant filed a Statement
of Material Facts (NYSCEF #168) that claimed that plaintiff has no written or electronic
communication; no evidence; no iCloud data; has no videos and no text messages to support any
of his claims. Further, since there is no evidence to support plaintiff’s claims, clearly any testimony
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FILED: WESTCHESTER COUNTY CLERK 05/13/2024
05/07/2024 04:49
08:18 PM
01:24 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262
259
260 RECEIVED NYSCEF: 05/13/2024
05/06/2024
05/07/2024
61665/2021
to be provided by the plaintiff would only be self-serving statements which are barred by the Dead
Man’s Statute under CPLR 4519. Obviously, any such statements could not be refuted by the
deceased. Kuznitz v. Funk, 187 A.D.3d 1006, 1008 (2d Dep’t 2020). Plaintiff would be barred from
making any statements regarding “…a personal transaction…” between him and Aaron Einsidler.
See ROI, Inc. v. Hidden Valley Realty Corp., 45 A.D.3d 1010, 1011-12 (3d Dep’t 2007).
Additionally defendant cites Stathis v Estate of Karas 1193 A.D.3d 897 (2nd Dept, 2021) wherein
the Dead Man’s Statute precluded the admission of a purported agreement as a business record,
and it was required that the original written agreement be produced. Alternatively, the Best
Evidence rule that would require the production of the original agreement, there is an exception
where the primary evidence is unavailable. This unavailability would have to be explained to the
court’s satisfaction why the original was unavailable. In Stathis, plaintiffs established their
entitlement to summary judgment in this breach of contract action. What was needed was the
original agreement, but the explanation as to its unavailability was not to be proffered at trial due
to the Dead Man’s Statute.
Under the relevant statute, CPLR 4519 and in the instant matter, the plaintiff is plainly a
party interested in the event or events that form the basis of the suit. The only persons who can
refute the plaintiff’s claim are the defendants, who are deceased. Being “interested in the event” is
a disqualifying factor, because having such an interest would only provide the plaintiff with an
opportunity to gain over and win as against the deceased defendant. The effect of any judgment
against the plaintiff will directly affect the plaintiff, and since the only person who can adequately
refute the plaintiff’s allegations is the deceased, the Dead Man’s Statute (CPLR 4519) prevents
such testimony. Plaintiff’s only opposition to the motion for Summary Judgment has to do with
possible, self-serving, conclusory discovery revelations, that may or may not be developed. It is
insufficient to defeat defendant’s application for Summary Judgment.
Plaintiff’s then counsel filed its Memorandum of Law (MOL) in Opposition to Defendant’s
Cross-Motion for Summary Judgment. Said MOL contains many citations on the mechanism of
Summary Judgment and a history of when it has been held proper or improper. The opposition
itself consist of a claim that “Discovery is incomplete, and the deposing of parties continues to be
delayed.”. The allegations made by the plaintiff is against the administrator of the Estate of the
deceased, Aaron Einsidler. However, the actual defendant is the Administrator of the Estate of one
of the decedents. Only the decedent has knowledge of what transpired between himself and the
plaintiff. Plaintiff’s side of the story, if any, is prohibited from being told due to the nature of such
self-serving statements being held against a decedent. As stated above, the Dead Man’s Statute
prohibits the plaintiff from testifying about any communications or transactions between him and
the decedents. Plus, the plaintiff has failed to proffer any evidence in support of his claims.
Cross movant’s Reply further states that plaintiff’s mere speculation that any discovery
might result in obtaining relevant information does not preclude the entry of summary judgment.
Defendant correctly cites Morales v. Amar, 145 A.D.3d 1000, 1003 (2d Dep’t 2016) (“mere hope
or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered
during the discovery process is an insufficient basis for denying the motion”. Plaintiff’s only
opposition was the supposition that discovery was still needed. However, with the filing of the
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FILED: WESTCHESTER COUNTY CLERK 05/13/2024
05/07/2024 04:49
08:18 PM
01:24 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 262
259
260 RECEIVED NYSCEF: 05/13/2024
05/06/2024
05/07/2024
61665/2021
Note of Issue discovery was closed, leaving plaintiff with no other basis to object to summary
judgment being granted.
By reason of all the foregoing it is hereby
ORDERED, the portion of defendant’s Cross Motion (Motion #9) seeking Summary
Judgment dismissing plaintiff’s Complaint is GRANTED WITH PREJUDICE; and it is further.
ORDERED, the portion of defendant’s Cross Motion (Motion #9) seeking sanctions and
legal fees is DENIED.
Any relief not specifically granted herein is denied.
The foregoing constitutes the decision and order of this Court.
Dated: May 6, 2024
New City, New York ENTER:
Hat 6.Gru we
____________________________
Hon. Hal B. Greenwald, J.S.C.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service
by a party upon the appellant of a copy of the judgment or order appealed from and written notice
of its entry, except that where the appellant has served a copy of the judgment or order and written
notice of its entry, the appeal must be taken within thirty days thereof.
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Preview
FILED: WESTCHESTER COUNTY CLERK 05/13/2024 04:49 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 RECEIVED NYSCEF: 05/13/2024 Exhibit 1 FILED: WESTCHESTER COUNTY CLERK 05/13/2024 04:49 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 RECEIVED NYSCEF: 05/13/2024 Amy Baker From: Amy Baker Sent: Tuesday, May 7, 2024 3:08 PM To: Realityking72@aol.com Subject: Rice v. Einsidler, Index No. 61665/2021 Attachments: 61665_2021_NEIL_B_RICE_v_LEE_R_EINSIDLER_NOTICE_OF_ENTRY_260.pdf Tracking: Tracking Recipient Delivery Realityking72@aol.com Jonathan Ohring Delivered: 5/7/2024 3:08 PM Mr. Rice, As you know, our firm represents Mr. Einsidler in the lawsuit you brought against him. Please see the attached notice of entry, which annexes the Court’s order that was issued yesterday. A copy of this notice of entry and the annexed order were filed with the Court today. A copy of the notice of entry and annexed order will also be delivered to you. Regards, Vuankwitt . LLP Amy Baker Administrative Assistant 140 Grand Street, Suite 705 White Plains, New York 10601 (914) 686-1500 (Main) (914) 487-5000 (Fax) amy@yankwitt.com www.yankwitt.com 1 FILED: WESTCHESTER COUNTY CLERK 05/13/2024 05/07/2024 04:49 01:24 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 260 RECEIVED NYSCEF: 05/13/2024 05/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER NEIL B. RICE, Plaintiff, Index No. 61665/2021 -against- NOTICE OF ENTRY LEE R. EINSIDLER, As Administrator of the Estate of AARON M. EINSIDLER, Defendant. PLEASE TAKE NOTICE that the annexed is a true copy of the Decision and Order on Motion Sequence #9 (NYSCEF No. 259) signed by the Honorable Hal B. Greenwald, J.S.C. on May 6, 2024, and entered in the office of the Clerk of the within named Court on May 7, 2024. Dated: May 7, 2024 White Plains, New York YANKWITT LLP By: Jonathan Ohring 140 Grand Street, Suite 705 White Plains, New York 10601 Tel: (914) 686-1500 Fax: (914) 487-5000 Attorneys for Defendant Lee R. Einsidler 1 of 4 FILED: WESTCHESTER COUNTY CLERK 05/13/2024 05/07/2024 04:49 08:18 PM 01:24 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 259 260 RECEIVED NYSCEF: 05/13/2024 05/06/2024 05/07/2024 61665/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------X NEIL B. RICE, Index No. 61665/2021 Plaintiff, -against- DECISION AND ORDER LEE R EISIDLER, As Administrator of the Estate of MX #9 AARON M. EINSIDLER, Defendant. ------------------------------------------------------------------X HON. HAL B. GREENWALD, J.S.C. The following NYSCEF documents were reviewed and/or read by the Court in determining the within Decision and Order (Motion Sequence #9): NYSCEF numbers: 167-200, 205-240 BRIEF RELEVANT PROCEDURAL HISTORY Plaintiff’s counsel moved by Order to Show Cause (Motion #8) filed June 6, 2023, to be relieved as counsel. Defendant moved by Notice of Defendant’s Cross Motion (Motion #9) for Summary Judgment and an Award of Attorney’s Fees under Part 130 and CPLR 830-a on August 10, 2023. Said Order to Show Cause and Cross Motion were adjourned on consent to October 13, 2023, then October 25, 2023. However, plaintiff’s counsel failed to appear on October 25, 2023. A Court conference was held on November 8, 2023, at which time both plaintiff and defendant appeared personally and with their respective counsel and the Court orally granted plaintiff’s counsel’s motion (MX#8) to be relieved. The Court stayed the matter to provide plaintiff with time to retain new counsel and set the matter down for a conference on January 23, 2024. However, effective January 1, 2024, the Hon. Hal B. Greenwald was transferred out of the Westchester County Supreme Court Civil Part to an IAS Part in Rockland County Supreme Court. By Decision and Order dated December 27, 2023, the Hon. Robert S. Ondrovic, in the absence of Justice Greenwald confirmed the Court’s granting of plaintiff’s motion to be relieved and changed the conference date to January 4, 2024, before the Hon. Robert S. Ondrovic. Plaintiff filed a Note of Issue and certified the matter ready for trial on January 5, 2024 MOTION #9 FOR SUMMARY JUDGMENT Defendant’s summary judgment motion is premised upon the facts that plaintiff’s claim could only be substantiated if there was corroborating testimony from the defendants, who are both deceased. In support of the Cross Motion for Summary Judgment, the defendant filed a Statement of Material Facts (NYSCEF #168) that claimed that plaintiff has no written or electronic communication; no evidence; no iCloud data; has no videos and no text messages to support any of his claims. Further, since there is no evidence to support plaintiff’s claims, clearly any testimony Page 1 of 3 1 of 4 2 3 FILED: WESTCHESTER COUNTY CLERK 05/13/2024 05/07/2024 04:49 08:18 PM 01:24 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 259 260 RECEIVED NYSCEF: 05/13/2024 05/06/2024 05/07/2024 61665/2021 to be provided by the plaintiff would only be self-serving statements which are barred by the Dead Man’s Statute under CPLR 4519. Obviously, any such statements could not be refuted by the deceased. Kuznitz v. Funk, 187 A.D.3d 1006, 1008 (2d Dep’t 2020). Plaintiff would be barred from making any statements regarding “…a personal transaction…” between him and Aaron Einsidler. See ROI, Inc. v. Hidden Valley Realty Corp., 45 A.D.3d 1010, 1011-12 (3d Dep’t 2007). Additionally defendant cites Stathis v Estate of Karas 1193 A.D.3d 897 (2nd Dept, 2021) wherein the Dead Man’s Statute precluded the admission of a purported agreement as a business record, and it was required that the original written agreement be produced. Alternatively, the Best Evidence rule that would require the production of the original agreement, there is an exception where the primary evidence is unavailable. This unavailability would have to be explained to the court’s satisfaction why the original was unavailable. In Stathis, plaintiffs established their entitlement to summary judgment in this breach of contract action. What was needed was the original agreement, but the explanation as to its unavailability was not to be proffered at trial due to the Dead Man’s Statute. Under the relevant statute, CPLR 4519 and in the instant matter, the plaintiff is plainly a party interested in the event or events that form the basis of the suit. The only persons who can refute the plaintiff’s claim are the defendants, who are deceased. Being “interested in the event” is a disqualifying factor, because having such an interest would only provide the plaintiff with an opportunity to gain over and win as against the deceased defendant. The effect of any judgment against the plaintiff will directly affect the plaintiff, and since the only person who can adequately refute the plaintiff’s allegations is the deceased, the Dead Man’s Statute (CPLR 4519) prevents such testimony. Plaintiff’s only opposition to the motion for Summary Judgment has to do with possible, self-serving, conclusory discovery revelations, that may or may not be developed. It is insufficient to defeat defendant’s application for Summary Judgment. Plaintiff’s then counsel filed its Memorandum of Law (MOL) in Opposition to Defendant’s Cross-Motion for Summary Judgment. Said MOL contains many citations on the mechanism of Summary Judgment and a history of when it has been held proper or improper. The opposition itself consist of a claim that “Discovery is incomplete, and the deposing of parties continues to be delayed.”. The allegations made by the plaintiff is against the administrator of the Estate of the deceased, Aaron Einsidler. However, the actual defendant is the Administrator of the Estate of one of the decedents. Only the decedent has knowledge of what transpired between himself and the plaintiff. Plaintiff’s side of the story, if any, is prohibited from being told due to the nature of such self-serving statements being held against a decedent. As stated above, the Dead Man’s Statute prohibits the plaintiff from testifying about any communications or transactions between him and the decedents. Plus, the plaintiff has failed to proffer any evidence in support of his claims. Cross movant’s Reply further states that plaintiff’s mere speculation that any discovery might result in obtaining relevant information does not preclude the entry of summary judgment. Defendant correctly cites Morales v. Amar, 145 A.D.3d 1000, 1003 (2d Dep’t 2016) (“mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion”. Plaintiff’s only opposition was the supposition that discovery was still needed. However, with the filing of the Page 2 of 3 2 of 4 3 3 FILED: WESTCHESTER COUNTY CLERK 05/13/2024 05/07/2024 04:49 08:18 PM 01:24 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 262 259 260 RECEIVED NYSCEF: 05/13/2024 05/06/2024 05/07/2024 61665/2021 Note of Issue discovery was closed, leaving plaintiff with no other basis to object to summary judgment being granted. By reason of all the foregoing it is hereby ORDERED, the portion of defendant’s Cross Motion (Motion #9) seeking Summary Judgment dismissing plaintiff’s Complaint is GRANTED WITH PREJUDICE; and it is further. ORDERED, the portion of defendant’s Cross Motion (Motion #9) seeking sanctions and legal fees is DENIED. Any relief not specifically granted herein is denied. The foregoing constitutes the decision and order of this Court. Dated: May 6, 2024 New City, New York ENTER: Hat 6.Gru we ____________________________ Hon. Hal B. Greenwald, J.S.C. Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that where the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Page 3 of 3 3 of 4 4 3