Preview
FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024
April 19, 2024
Via NYSCEF and Email
The Honorable Hal B. Greenwald, J.S.C.
Supreme Court, Rockland County
1 South Main Street
New City, NY 10956
Re: Rice v. Einsidler, Index No. 61665/2021
Dear Justice Greenwald:
We represent defendant Lee R. Einsidler, as administrator of the estate of Aaron M.
Einsidler (“Defendant”), in the above-referenced action. Although this action was reassigned from
Your Honor to Justice Ondrovic, we were informed by Justice Ondrovic at the April 10, 2024
conference that Defendant’s pending cross-motion for summary judgment and sanctions (Mot.
Seq. #9) (the “Cross-Motion”), which was fully submitted as of October 13, 2023, remains
assigned to Your Honor.
As such, we write to inform Your Honor of procedural developments in this action
subsequent to its reassignment compelling the granting of the Cross-Motion. As discussed herein,
now that discovery has concluded, Plaintiff’s sole basis for opposing summary judgment no longer
exists. Accordingly, the Cross-Motion should be granted and summary judgment should be
entered for Defendant on all claims, putting an end to this frivolous case.
The Motion to Withdraw and the Cross-Motion
On May 31, 2023, shortly after receiving a letter from the undersigned informing them of
developments confirming the frivolousness of Plaintiff’s case, Plaintiff’s counsel filed an
application seeking the Court’s permission to withdraw (Mot. Seq. #8) (the “Motion to
Withdraw”). The Motion to Withdraw all but confirmed that Plaintiff’s claims were frivolous,
stating, inter alia, that Plaintiff’s May 8, 2023 text message to Defendant “seemingly prejudiced
Plaintiff’s entire cause of action against Defendant” and that “[t]he contents of the alleged text
message are in direct opposition to Plaintiff’s theory of the case.” (Dkt. No. 162, ¶¶ 12, 17.)
In response to the Motion to Withdraw, Defendant filed the Cross-Motion, seeking
summary judgment in favor of Defendant on all claims, as well as an award requiring Plaintiff and
his counsel to reimburse Defendant for his attorney’s fees and costs incurred in defending against
this lawsuit pursuant to Part 130 and CPLR 8303-a. (See Dkt. Nos. 167-200.) As discussed in the
Cross-Motion, summary judgment is warranted because, even after two years of litigation, there
is no evidence to support Plaintiff’s claims other than his own statements—evidence that is barred
from trial under the Dead Man’s Statute and insufficient to create a genuine issue of material fact
as a matter of law under Second Department precedent. (Dkt. No. 169 at 13 (citing Stathis v.
Estate of Karas, 147 N.Y.S.3d 83, 87 (2d Dep’t 2021)).)
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FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024
April 19, 2024
Page 2 of 3
Hon. Hal B. Greenwald
In opposition to the Cross-Motion, Plaintiff did not identify any evidence to overcome
Defendant’s prima facie entitlement to summary judgment, nor did he dispute the application of
the Dead Man’s Statute. Instead, Plaintiff argued only that discovery remained ongoing. (Dkt.
No. 208 at 5.) As Defendant noted in his reply, however, Plaintiff’s mere hope of obtaining
relevant information did not preclude the entry of summary judgment. (See Dkt. No. 209 at 4.)
On November 8, 2023, Your Honor held a status conference at which the Court granted
Plaintiff’s counsel’s Motion to Withdraw, but stated that the Court was “not going to decide [the
Cross-Motion] as yet” “since Plaintiff doesn’t have counsel.” (See Ex. A (Nov. 8, 2023 Tr.) at
2:11-23.) Plaintiff’s prior counsel thereafter filed a proposed order incorporating those rulings.
(See Dkt. Nos. 216, 217.) On December 27, 2023, after issuing a Court Notice advising that the
case had been reassigned to him (Dkt. No. 218), Justice Ondrovic so-ordered the proposed order,
which states that “decision on [the Cross-Motion] is reserved as Plaintiff remains without counsel
at this time.” (Dkt. No. 220.)
The Conferences Before Justice Ondrovic and Plaintiff’s Filing of the Note of Issue
Plaintiff is now proceeding pro se. On January 4, 2024, Justice Ondrovic held a status
conference at which he directed Plaintiff to file a note of issue by January 10, 2024, and stated that
no additional time would be provided for discovery. (Dkt. No. 229 at 3:13-20.) On January 5,
2024, Plaintiff filed the note of issue. (See Dkt. No. 226.)
At a subsequent status conference on April 10, 2024, when the undersigned inquired as to
the status of the pending Cross-Motion, Justice Ondrovic informed the parties that the Cross-
Motion remains assigned to Your Honor.
The Closing of Discovery Confirms That the Cross-Motion Should Be Granted
Now that discovery has closed, Defendant respectfully requests that the Court address and
grant the Cross-Motion, which, as discussed above, remains ripe for decision before Your Honor.
Plaintiff’s sole basis for opposing summary judgment in September 2023 was that
discovery was, at that point, “incomplete.” (Dkt. No. 208 at 5.) Plaintiff’s position was meritless
because, as discussed in Defendant’s reply brief, the mere fact that discovery remained ongoing
did not prevent entry of summary judgment. (See Dkt. No. 209 at 4.) With discovery now closed,
however, Plaintiff’s sole basis for opposing summary judgment (deficient as it was then) has
vanished. Plaintiff failed then—and has failed now—to offer a single piece of evidence to
overcome Defendant’s prima facie showing of entitlement to summary judgment.
Accordingly, Defendant respectfully requests that the Court grant the Cross-Motion, enter
summary judgment in favor of Defendant on all claims, and enter an award, pursuant to Part 130
and CPLR 8303-a, requiring Plaintiff to reimburse Defendant for the attorney’s fees and costs he
has incurred in defending against this frivolous lawsuit.
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FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024
April 19, 2024
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Hon. Hal B. Greenwald
Respectfully submitted,
____________________________
Jonathan Ohring, Esq.
cc: Neil B. Rice (via email and regular mail)
Hon. Robert S. Ondrovic, J.S.C. (via ECF)
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FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024 April 19, 2024 Via NYSCEF and Email The Honorable Hal B. Greenwald, J.S.C. Supreme Court, Rockland County 1 South Main Street New City, NY 10956 Re: Rice v. Einsidler, Index No. 61665/2021 Dear Justice Greenwald: We represent defendant Lee R. Einsidler, as administrator of the estate of Aaron M. Einsidler (“Defendant”), in the above-referenced action. Although this action was reassigned from Your Honor to Justice Ondrovic, we were informed by Justice Ondrovic at the April 10, 2024 conference that Defendant’s pending cross-motion for summary judgment and sanctions (Mot. Seq. #9) (the “Cross-Motion”), which was fully submitted as of October 13, 2023, remains assigned to Your Honor. As such, we write to inform Your Honor of procedural developments in this action subsequent to its reassignment compelling the granting of the Cross-Motion. As discussed herein, now that discovery has concluded, Plaintiff’s sole basis for opposing summary judgment no longer exists. Accordingly, the Cross-Motion should be granted and summary judgment should be entered for Defendant on all claims, putting an end to this frivolous case. The Motion to Withdraw and the Cross-Motion On May 31, 2023, shortly after receiving a letter from the undersigned informing them of developments confirming the frivolousness of Plaintiff’s case, Plaintiff’s counsel filed an application seeking the Court’s permission to withdraw (Mot. Seq. #8) (the “Motion to Withdraw”). The Motion to Withdraw all but confirmed that Plaintiff’s claims were frivolous, stating, inter alia, that Plaintiff’s May 8, 2023 text message to Defendant “seemingly prejudiced Plaintiff’s entire cause of action against Defendant” and that “[t]he contents of the alleged text message are in direct opposition to Plaintiff’s theory of the case.” (Dkt. No. 162, ¶¶ 12, 17.) In response to the Motion to Withdraw, Defendant filed the Cross-Motion, seeking summary judgment in favor of Defendant on all claims, as well as an award requiring Plaintiff and his counsel to reimburse Defendant for his attorney’s fees and costs incurred in defending against this lawsuit pursuant to Part 130 and CPLR 8303-a. (See Dkt. Nos. 167-200.) As discussed in the Cross-Motion, summary judgment is warranted because, even after two years of litigation, there is no evidence to support Plaintiff’s claims other than his own statements—evidence that is barred from trial under the Dead Man’s Statute and insufficient to create a genuine issue of material fact as a matter of law under Second Department precedent. (Dkt. No. 169 at 13 (citing Stathis v. Estate of Karas, 147 N.Y.S.3d 83, 87 (2d Dep’t 2021)).) 1 of 3 FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024 April 19, 2024 Page 2 of 3 Hon. Hal B. Greenwald In opposition to the Cross-Motion, Plaintiff did not identify any evidence to overcome Defendant’s prima facie entitlement to summary judgment, nor did he dispute the application of the Dead Man’s Statute. Instead, Plaintiff argued only that discovery remained ongoing. (Dkt. No. 208 at 5.) As Defendant noted in his reply, however, Plaintiff’s mere hope of obtaining relevant information did not preclude the entry of summary judgment. (See Dkt. No. 209 at 4.) On November 8, 2023, Your Honor held a status conference at which the Court granted Plaintiff’s counsel’s Motion to Withdraw, but stated that the Court was “not going to decide [the Cross-Motion] as yet” “since Plaintiff doesn’t have counsel.” (See Ex. A (Nov. 8, 2023 Tr.) at 2:11-23.) Plaintiff’s prior counsel thereafter filed a proposed order incorporating those rulings. (See Dkt. Nos. 216, 217.) On December 27, 2023, after issuing a Court Notice advising that the case had been reassigned to him (Dkt. No. 218), Justice Ondrovic so-ordered the proposed order, which states that “decision on [the Cross-Motion] is reserved as Plaintiff remains without counsel at this time.” (Dkt. No. 220.) The Conferences Before Justice Ondrovic and Plaintiff’s Filing of the Note of Issue Plaintiff is now proceeding pro se. On January 4, 2024, Justice Ondrovic held a status conference at which he directed Plaintiff to file a note of issue by January 10, 2024, and stated that no additional time would be provided for discovery. (Dkt. No. 229 at 3:13-20.) On January 5, 2024, Plaintiff filed the note of issue. (See Dkt. No. 226.) At a subsequent status conference on April 10, 2024, when the undersigned inquired as to the status of the pending Cross-Motion, Justice Ondrovic informed the parties that the Cross- Motion remains assigned to Your Honor. The Closing of Discovery Confirms That the Cross-Motion Should Be Granted Now that discovery has closed, Defendant respectfully requests that the Court address and grant the Cross-Motion, which, as discussed above, remains ripe for decision before Your Honor. Plaintiff’s sole basis for opposing summary judgment in September 2023 was that discovery was, at that point, “incomplete.” (Dkt. No. 208 at 5.) Plaintiff’s position was meritless because, as discussed in Defendant’s reply brief, the mere fact that discovery remained ongoing did not prevent entry of summary judgment. (See Dkt. No. 209 at 4.) With discovery now closed, however, Plaintiff’s sole basis for opposing summary judgment (deficient as it was then) has vanished. Plaintiff failed then—and has failed now—to offer a single piece of evidence to overcome Defendant’s prima facie showing of entitlement to summary judgment. Accordingly, Defendant respectfully requests that the Court grant the Cross-Motion, enter summary judgment in favor of Defendant on all claims, and enter an award, pursuant to Part 130 and CPLR 8303-a, requiring Plaintiff to reimburse Defendant for the attorney’s fees and costs he has incurred in defending against this frivolous lawsuit. 2 of 3 FILED: WESTCHESTER COUNTY CLERK 04/19/2024 10:07 AM INDEX NO. 61665/2021 NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 04/19/2024 April 19, 2024 Page 3 of 3 Hon. Hal B. Greenwald Respectfully submitted, ____________________________ Jonathan Ohring, Esq. cc: Neil B. Rice (via email and regular mail) Hon. Robert S. Ondrovic, J.S.C. (via ECF) 3 of 3