Application, Motion-Undefined in Richard J. Digeronimo, R.D. Geronimo, Ltd v. Property Analytix, Llc, Archstone Group Nyc Llc, Michael Miller, Royce Ashton Rowles, Ryan Lin| Trellis.Law

On January 05, 2022 a Motion-Secondary was filed involving a dispute between R.D. Geronimo, Ltd, Richard J. Digeronimo, and Archstone Group Nyc Llc, Michael Miller, Property Analytix, Llc, Royce Ashton Rowles, Ryan Lin, for Commercial Division - Contract in the District Court of Nassau County.

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FILED: WESTCHESTER COUNTY CLERK 08/10/2023 01:41 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 169 RECEIVED NYSCEF: 08/10/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

NEIL B. RICE,

Plaintiff,
Index No. 61665/2021
-against-
Hon. Hal B. Greenwald
LEE R. EINSIDLER, as Administrator of the Estate of
Mot. Seq. No. __
Aaron M. Einsidler,

Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S COUNSEL’S MOTION TO WITHDRAW AND IN SUPPORT OF
CROSS-MOTION FOR SUMMARY JUDGMENT AND AN AWARD
OF ATTORNEY’S FEES AND COSTS UNDER PART 130 AND CPLR 8303-a

YANKWITT LLP

Russell M. Yankwitt
Jonathan Ohring
140 Grand Street, Suite 705
White Plains, New York 10601
Tel.: (914) 686-1500
russell@yankwitt.com
jonathan@yankwitt.com
Attorneys for Defendant Lee R. Einsidler

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 3
A. Plaintiff’s Allegations. .................................................................................................. 3
B. Discovery Reveals That Plaintiff Spoliated Evidence and His Counsel Made
Misrepresentations Regarding Plaintiff’s Phones. ........................................................ 4
C. Discovery Confirms That This Action Is Frivolous. .................................................... 7
D. Defendant’s Counsel Informs Plaintiff’s Counsel of the Developments,
and Plaintiff’s Counsel Decides to Withdraw. ............................................................ 10
E. Plaintiff’s Counsel Files the Motion to Withdraw,
Admitting That This Case Is a Sham. ......................................................................... 10
ARGUMENT ................................................................................................................................ 11
I. SUMMARY JUDGMENT SHOULD BE GRANTED IN FAVOR OF
DEFENDANT ON ALL CLAIMS........................................................................................ 11
II. THE COURT SHOULD APPROVE AN AWARD OF ATTORNEY’S
FEES AND COSTS AGAINST PLAINTIFF AND HIS COUNSEL................................... 15
CONCLUSION ............................................................................................................................. 21

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TABLE OF AUTHORITIES

Cases Page(s)

Coratti v. Wella Corp.,
14 Misc. 3d 1204(A) (Sup. Ct. N.Y. Cty. 2006) ................................................................. 11, 12

Entm’t Partners Grp. v. Davis,
155 Misc. 2d 894 (Sup. Ct. N.Y. Cty. 1992) ............................................................................. 15

Griswold v. Hart,
205 N.Y. 384 (1912) .................................................................................................................. 14

Gurski v. Sapowitch,
276 A.D. 821 (4th Dep’t 1949).................................................................................................. 14

Guttridge v. Schwenke,
155 Misc. 2d 317 (Sup. Ct. Westchester Cty. 1992) ................................................................. 19

Harris v. Barbera,
79 N.Y.S.3d 643 (2d Dep’t 2018) ............................................................................................. 11

Holcomb v. Holcomb,
95 N.Y. 316 (1884) .................................................................................................................... 14

Jacobson v. Chase Manhattan Bank, N.A.,
174 A.D.2d 709 (2d Dep’t 1991) ............................................................................................... 19

Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P.,
78 A.D.3d 1008 (2d Dep’t 2010) ......................................................................................... 16, 17

Kuznitz v. Funk,
187 A.D.3d 1006 (2d Dep’t 2020) ............................................................................................. 13

Laka v. Krystek,
261 N.Y. 126 (1933) .................................................................................................................. 13

Marcus v. Bressler,
277 A.D.2d 108 (1st Dep’t 2000) .............................................................................................. 15

Matter of Estate of Lockwood,
234 A.D.2d 782 (3d Dep’t 1996) ............................................................................................... 15

Matter of Wood’s Estate,
52 N.Y.2d 139 (1981) ................................................................................................................ 12

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People ex rel. Blake v. Charger,
76 Misc. 2d 577 (Fam. Ct. Queens Cty. 1974) .......................................................................... 14

ROI, Inc. v. Hidden Valley Realty Corp.,
45 A.D.3d 1010 (3d Dep’t 2007) ............................................................................................... 14

Stathis v. Estate of Karas,
147 N.Y.S.3d 83 (2d Dep’t 2021) ....................................................................................... 13, 15

Zuckerman v. City of New York,
49 N.Y.2d 557 (1980) ................................................................................................................ 11

Statutes and Rules

CPLR § 3212............................................................................................................................. 1, 11

CPLR § 8303-a ................................................................................................................... 1, 15, 16

CPLR § 4519..................................................................................................................... 12, 13, 14

N.Y. Comp. Codes R. & Regs. Tit. 22 § 130-1.1 ..................................................................... 1, 16

iii

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Defendant Lee R. Einsidler (“Defendant”), as administrator of the estate of his son Aaron

M. Einsidler (“Aaron”), respectfully submits this memorandum of law in opposition to the motion

by counsel for plaintiff Neil B. Rice (“Plaintiff”), pursuant to an order to show cause (Mot. Seq.

No. 8), seeking leave to be relieved as counsel to Plaintiff (the “Motion to Withdraw”), and in

support of Defendant’s cross-motion for summary judgment pursuant to CPLR 3212 and an award

of attorney’s fees and costs pursuant to CPLR 8303-a and N.Y. Comp. Codes R. & Regs. Tit. 22

§ 130-1.1 (“Part 130”), filed contemporaneously herewith (the “Cross-Motion”).1

PRELIMINARY STATEMENT

In August 2020, Aaron and his wife Sara tragically died of a drug overdose, leaving behind

their three-week-old daughter. One year later, Plaintiff commenced this action against Defendant,

as administrator of Aaron’s estate, seeking a whopping $15 million in damages based on

threadbare allegations of a supposed assault by Aaron “on or about November 2019.” For two

years, the parties have litigated this case, with Plaintiff continuously refusing to produce plainly

relevant discovery on entirely specious grounds, giving rise to repeated, unnecessary motion

practice and causing Defendant to incur substantial attorney’s fees. As a result, Aaron’s estate—

which could have been used to fund the education and well-being of his now three-year-old

daughter—has been completely depleted, and Defendant has been forced to defend against

Plaintiff’s baseless claims with his own funds.

1
“Withdrawal Affirmation” refers to the Affirmation in Support of Order to Show Cause to Be Relieved as
Counsel (Doc. No. 162). “Ohring Aff.” refers to the Affirmation of Jonathan Ohring in Opposition to
Plaintiff’s Motion and in Support of Defendant’s Cross-Motion, filed contemporaneously herewith, and
“Ex. __” refers to the exhibits thereto. “Einsidler Aff.” refers to the Affidavit of Lee R. Einsidler in
Opposition to Plaintiff’s Motion and in Support of Defendant’s Cross-Motion, filed contemporaneously
herewith, and “Einsidler Aff., Ex. __” refers to the exhibits thereto. “SOF” refers to Defendant’s Statement
of Material Facts, submitted contemporaneously herewith. “Compl.” or “Complaint” refers to Plaintiff’s
Verified Complaint (Doc. No. 1). Unless otherwise indicated, internal alterations, citations, and quotation
marks are omitted from case citations.

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All the while, Plaintiff has not come forward with a shred of evidence to support his

fabricated claims that Aaron harassed and assaulted him. During the course of the litigation,

Defendant’s counsel repeatedly advised Plaintiff’s counsel of the frivolous nature of this action

and that if it continued, Defendant would be left with no choice but to seek sanctions in the form

of reimbursement of Defendant’s attorney’s fees and costs, but Plaintiff and his counsel pressed

on with their frivolous claims and conduct.

Now, remarkable developments in discovery have confirmed that Plaintiff’s case is a sham

and was brought maliciously in an attempt to extort Defendant—the CEO of the prominent tequila

company Casamigos—and to distract from Plaintiff’s apparent role in dealing the drugs to Aaron

and Sara that led to their deaths. Among other things, discovery revealed that: Plaintiff had

spoliated critical evidence by disposing of two of the cell phones that he used to communicate with

Aaron (which Plaintiff and his counsel proceeded to lie about in sworn submissions to the Court);

Aaron had Plaintiff saved as a contact in his iPhone under a code name for a drug dealer; and

Plaintiff told a witness after Aaron’s and Sara’s deaths that Plaintiff was “paranoid about the risk

to him, based on the death of Aaron and Sara[,]” that he “was very scared that he would be arrested

in connection with [their] deaths[,]” and that he “[did not] want to do the forty years.” Then, in

May 2023, while this case was in the middle of discovery, Plaintiff sent a text message to

Defendant which, by Plaintiff’s counsel’s own admission, was “in direct opposition to Plaintiff’s

theory of the case” and “seemingly prejudiced Plaintiff’s entire cause of action against Defendant.”

While Plaintiff’s counsel was complicit in asserting and continuing to press Plaintiff’s baseless

claims, in a desperate attempt to avoid sanctions, they now seek to withdraw as Plaintiff’s counsel

after the undersigned informed them of these developments. Incredibly, though, Plaintiff seeks to

continue with his claims.

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It is time for the Court to put a stop to this sham action and hold Plaintiff and his counsel

accountable for their cruel and immoral prosecution of Plaintiff’s frivolous claims. Summary

judgment should be granted in favor of Defendant on all claims because, even after lengthy

discovery, there is no evidence to support the claims other than Plaintiff’s own self-serving

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. In addition, an award should be entered

against Plaintiff and his counsel requiring them to reimburse Defendant for his attorney’s fees and

costs as a sanction for their frivolous claims and conduct under CPLR 8303-a and Part 130.

Finally, because dismissal of this action is appropriate, the Motion to Withdraw should be denied

as moot.

FACTUAL BACKGROUND

A. Plaintiff’s Allegations.

Aaron and Sara died tragically from a drug overdose on August 11, 2020, following the

birth of their daughter three weeks earlier. (SOF ¶ 1.) Defendant, who is the CEO of the prominent

tequila company Casamigos, was appointed administrator of Aaron’s estate and continues to serve

in that capacity. (SOF ¶ 2.) Approximately one year after their deaths, while Aaron’s estate was

in administration in Surrogate’s Court, Plaintiff served notice of a claim against Aaron’s estate

(Ex. A) and filed the Complaint in this action (Ex. B) against Defendant in his capacity as

administrator of the estate.

In his Complaint, Plaintiff alleged that after meeting Aaron and Sara in “early winter of

2018” (Compl. ¶ 7), the couple subjected him to “continuous and ongoing” bullying and

harassment, “consisting of disparaging remarks, phone calls, and texts, culminating during

quarantine and just prior to” their deaths in August 2020 (id. ¶ 10). Plaintiff further alleged that

“[o]n or about November 2019, Aaron and Sara met Plaintiff near Charles and Darlington Roads,”

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where they “physically assaulted” him. (Id. ¶¶ 23-24.)2 Plaintiff alleged that “[u]pon information

and belief, Aaron and Sarah took photographs and/or video of Plaintiff on Aaron’s phone during

their assault.” (Id. ¶ 25.)

Based on these allegations, Plaintiff asserted claims against Aaron’s estate for (i)

intentional infliction of emotional distress, (ii) negligent infliction of emotional distress,

(iii) assault, (iv) battery, and (v) prima facie tort, claiming $15 million in damages. (Compl. ¶¶

31-63.)

B. Discovery Reveals That Plaintiff Spoliated Evidence and His Counsel Made
Misrepresentations Regarding Plaintiff’s Phones.

In light of Plaintiff’s sworn allegations that Aaron repeatedly harassed him via phone calls

and text messages (Compl. ¶ 10), Defendant sought production of Plaintiff’s communications

(including text messages) with Aaron. (See Ex. D at 5 (Request No. 1).) On June 24, 2022,

Plaintiff served responses to Defendant’s document requests, signed by Plaintiff’s counsel, in

which Plaintiff asserted (meritless) objections to production of the communications, but did not

suggest that Plaintiff did not have text messages with Aaron in his possession or that he had deleted

them. (See Ex. E at 2-3 (Response to Request No. 1).)

Counsel for the parties subsequently met and conferred regarding, inter alia, Plaintiff’s

failure to produce the text messages, and at no point did Plaintiff’s counsel suggest that Plaintiff

did not have text messages with Aaron in his possession or that he had deleted them. (Ohring Aff.

¶¶ 8-10; see also Ex. F; Ex. G.) During the meet-and-confer call and by subsequent letter, the

undersigned emphasized to Plaintiff’s counsel that, more than three months after the

commencement of discovery, Plaintiff had not produced a single document to substantiate his

2
Plaintiff thereafter filed a Verified Bill of Particulars in response to a demand by Defendant, in which
Plaintiff alleged that the “time period” of the “assault(s)” was “on or about November 2019 and December
2019 and thereafter.” (Ex. C, ¶ 25.)

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claims of alleged harassment and assault. (See Ex. F at 5.) The undersigned advised Plaintiff’s

counsel that Defendant had no reason to believe that this action is anything more than an attempted

shakedown without any evidentiary support, and that Defendant would seek an award of attorney’s

fees and costs pursuant to CPLR 8303-a and Part 130 to the extent that Plaintiff commenced and

maintained frivolous claims. (See id.) The meet-and-confer process did not, however, dissuade

Plaintiff and his counsel from continuing with their frivolous claims and conduct, and Plaintiff

refused to produce any documents.

On October 12, 2022, Defendant filed an omnibus motion to compel seeking an order

compelling Plaintiff to produce the withheld discovery, including his text messages with Aaron.

(See Ex. H (“Defendant’s MTC”).) Notably, in response to Defendant’s MTC, Plaintiff did not

suggest that he was no longer in possession of his text messages or phone. Instead, Plaintiff’s

counsel averred in a sworn affirmation that “[i]t is Plaintiff’s position that Plaintiff has responded

appropriately and in good faith” to Defendant’s disclosure requests. (Ex. I ¶ 10.)

Only upon completion of the briefing on Defendant’s MTC did Plaintiff and his counsel

disclose for the first time that Plaintiff purportedly was no longer in possession of his text

messages. Specifically, on October 31, 2022, in a two-page reply affirmation in support of a

motion to compel filed by Plaintiff (and briefed in parallel with Defendant’s MTC), Plaintiff’s

counsel averred for the first time that “upon information and belief, Plaintiff discarded all written

and electronic communications with Aaron Einsidler out of fear and disgust after the alleged

assault took place.” (Ex. J ¶ 7 (emphasis added).) Notably, Plaintiff himself did not submit an

affidavit to this effect, and Plaintiff’s counsel provided no explanation for how counsel had

“information and belief” regarding Plaintiff’s deletion of text messages. Plaintiff’s counsel’s

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affirmation also failed to indicate when the supposed deletion took place or provide any other

information.

On November 1, 2022, the undersigned filed a letter informing the Court of these

developments and requesting a conference to address the apparent spoliation of evidence and

misrepresentations by Plaintiff and his counsel. (Ex. K.)

The same day, Plaintiff’s counsel submitted a letter in response. Remarkably, Plaintiff’s

counsel stated that they “only recently learned that Plaintiff was not in possession of his own cell

phone . . . .” (Ex. L.) Thus, Plaintiff’s counsel changed stories again, asserting for the first time

that, rather than Plaintiff’s text messages being deleted—as Plaintiff’s counsel had previously

stated in his sworn affirmation—Plaintiff was now supposedly not in possession of his cell phone

at all. Plaintiff’s counsel’s changing narrative meant that one or more of the following had

occurred: (1) Plaintiff spoliated evidence by disposing of his cell phone; (2) Plaintiff’s counsel

committed perjury by stating in a sworn affirmation that Plaintiff had deleted his text messages;

or (3) Plaintiff’s counsel failed to inquire of their client regarding the status of the phone until the

end of October 2022, despite the fact that the existence of the text messages on Plaintiff’s phone

was the subject of months of discussion during discovery and the subject of briefing on competing

motions to compel. (See Ex. M.)3

Months later, on March 6, 2023, Plaintiff’s counsel disclosed for the first time that Plaintiff

had used a second, additional phone during the relevant time period. (Ex. O.) In response to an

inquiry from the undersigned, Plaintiff’s counsel indicated that neither of the two cell phones was

in Plaintiff’s possession. (Ex. P.) Thus, it became clear that Plaintiff had disposed of not just one,

3
In response to the undersigned’s letter, Plaintiff’s counsel sought to blame the undersigned for “attempted
assassination of [his] character[,]” stating without explanation that “I have simply been reporting what I
believe to be the developing circumstances of our ongoing obligation to commit to discovery[,]” and “[a]ll
that I can say is that I am not the one testifying here.” (Ex. N.)

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but two cell phones containing information that would have been critical to assessing the merits

(or lack thereof) of his claims.

Ultimately, Plaintiff did not produce any evidence supporting his claim that Aaron harassed

him over text messages. (SOF ¶ 5.)

C. Discovery Confirms That This Action Is Frivolous.

Eventually, discovery confirmed not only that Plaintiff’s case is frivolous and without any

evidentiary support, but also that Plaintiff likely pursued the claims to distract from his probable

role in the deaths of Aaron and Sara.

1. Aaron’s iCloud Data

Based on Plaintiff’s sworn allegations that Aaron harassed Plaintiff over text messages and

that Aaron “took photographs and/or video” of the alleged assault on his own phone, Defendant

stipulated to an order directing Apple to provide Defendant with access to Aaron’s phone or its

contents. (Ex. Q.)4 Following entry of the order, Defendant’s counsel transmitted the order to

Apple, and Apple thereafter granted Defendant access to the contents of Aaron’s iCloud (the

“iCloud”). (Ohring Aff. ¶ 21.) Defendant’s counsel reviewed the entirety of the iCloud data

promptly thereafter. (Id.)

The review of the iCloud data confirmed that the iCloud does not contain any photos or

videos of the alleged assault or Plaintiff. (SOF ¶ 6.) Indeed, there are no videos on the iCloud at

all, and the only photos are 38 photos of Aaron, Sara, and their infant daughter shortly before

Aaron and Sara’s tragic deaths, as well as a few photos of their dog. (Id. ¶ 7.) Nor does the iCloud

have any text messages with Plaintiff. (Id. ¶ 8.)

4
As discussed in prior briefing, Defendant does not have the passcode to unlock Aaron’s phone, and Apple
will agree to provide a deceased individual’s estate representative with access to the deceased user’s phone
or its contents only upon a court order. (See Doc. No. 101 at 5-8.)

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Not only does the iCloud have no evidence to support Plaintiff’s case—the information it

does contain indicates that Plaintiff was likely complicit in Aaron’s and Sara’s deaths. While

Plaintiff’s name does not appear in the Contacts list on Aaron’s iCloud, there is a contact matching

two of the phone numbers that Plaintiff has acknowledged using: 914-666-2671 (a landline

associated with Plaintiff and serviced by Verizon) and 914-215-4725 (a mobile number associated

with Plaintiff and serviced by AT&T).5 That contact is identified as “Jon Snow.”6 “Snow,” of

course, is commonly-used slang for cocaine.7

In other words, the iCloud data shows that Aaron created a contact for Plaintiff using a

code name to disguise the fact that Plaintiff was his drug dealer. Notably, the two phone numbers

under the “Jon Snow” contact on Aaron’s iCloud are numbers associated with accounts that

Plaintiff closed in September 2020—one month after Aaron’s and Sara’s deaths.8 Thus, it

appears that, rather than Plaintiff deleting his text messages with Aaron or disposing his phones

“out of fear and disgust after the alleged assault took place” one year earlier—as Plaintiff’s counsel

previously asserted in a sworn affirmation to the Court9—Plaintiff instead discontinued his phone

service and disposed of his phones in an attempt to prevent anyone from uncovering the fact that

he was dealing the drugs to Aaron and Sara that likely caused their deaths.

2. Jon Erickson’s Affidavit

In addition, during Defendant’s investigation of the case, Defendant obtained a sworn

affidavit from a witness, Jon P. Erickson, in which Erickson stated, under penalty of perjury, that

5
See Ex. R at 4; Ex. S at 4.
6
See Ex. T (screenshot from the iPhone showing the “Jon Snow” contact).
7
See Ex. U (U.S. Drug Enforcement Administration, Drug Slang Code Words) at 2-3.
8
See Ex. R at 4; Ex. S at 4.
9
See Ex. J ¶ 7.

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he has known Plaintiff since 1994, knows him to be a drug dealer who has sold cocaine and

Oxycontin in and around Mount Kisco for many years, and that he knows Plaintiff to have sold

cocaine to Aaron and Sara on many occasions. (Ex. V ¶¶ 1-6.) The affidavit states that soon after

Aaron’s and Sara’s deaths, Erickson visited Plaintiff, who was “extremely upset” and “had lost a

lot of weight[.]” (Id. ¶ 7.) The affidavit further states that Plaintiff frisked Erickson to check for

a wire and asked Erickson to give up his phone because Plaintiff was “paranoid about the risk to

him, based on the death of Aaron and Sara[,]” (Id. ¶ 9.) Plaintiff also told Erickson that he “was

very scared that he would be arrested in connection with Aaron and Sara’s deaths[,]” that “[t]hey’re

coming after me,” and “I don’t want to do the forty years.” (Id. ¶¶ 7, 8.) After the visit, Plaintiff

told Erickson that, because Plaintiff was afraid of being arrested, he got rid of his guns and stash

of drugs. (Id. ¶ 10.)

3. Plaintiff’s May 2023 Text Message to Defendant

On May 8, 2023—nearly two years after the commencement of this action—Defendant

received a text message (the “May 2023 Text Message”) from a phone number that was unfamiliar

to him and with which he had never previously corresponded. (SOF ¶ 11.) Plaintiff’s counsel has

essentially conceded that the message was from Plaintiff. (Withdrawal Aff. ¶¶ 12-13, 17-18.) The

message states as follows (all errors in original):

I am not autistic. I have problems that I deal with everyday of my
life. I am in Bedford because I took care of an elderly lady and her
son and She left me almost a million dollars. I invested that money
in real estate I have been alone my whole life. I was Your son’s
friend and I looked out for him. He was doing really well and
staying away from bad stuff. I couldn’t help him and I can’t sleep
anymore. You want to hurt me that’s ok. I know You tried to save
him. He told me my Dad is buying me. House near him bc he thinks
something is going to happen to me. Then You wouldnt go to his
wedding at the house because he said You were fighting. I was there
for all of it. I helped him so much he called me Uncle. I won’t
bother You again but I never lied. I did speak with You at the gas

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station. I was worried about him. You had me all wrong from the
beginning. I got Your son away from bad people. Ok I am going to
see my Mom. Once again sorry to bother You. You want to talk I
am willing. Take care[.]

(Einsidler Aff., Ex. 4.)

D. Defendant’s Counsel Informs Plaintiff’s Counsel of the Developments, and
Plaintiff’s Counsel Decides to Withdraw.

Within days of reviewing the iCloud data and Defendant’s receipt of the text message from

Plaintiff, the undersigned sent a letter to Plaintiff’s counsel, informing them of the multiple

developments during discovery that confirmed Plaintiff’s case is frivolous and sanctionable under

Part 130 and CPLR 8303-a, and attaching all relevant documents. (Withdrawal Aff., Ex. A (Doc.

No. 163).) The undersigned’s letter stated that, as a result, Defendant expected Plaintiff to

voluntarily dismiss the case before a Court conference scheduled for May 16, 2023. (Id.)

Two days after receiving the undersigned’s letter, Plaintiff’s counsel sent the undersigned

an email, stating that “[a]fter reviewing the letter and its contents with our client, we have

determined to move the Court to relieve us as counsel and to stay proceedings for 30 days for Mr.

Rice to seek new representation.” (Ex. W.)

E. Plaintiff’s Counsel Files the Motion to Withdraw, Admitting That This Case
Is a Sham.

On May 31, 2023, Plaintiff’s counsel filed the Motion to Withdraw, seeking leave to

withdraw as counsel and a stay of proceedings for 30 days to permit Plaintiff to retain new counsel.

(Doc. No. 161.) The Withdrawal Affirmation in support of the Motion to Withdraw states that

“[p]rofessional considerations require that this Firm terminate its representation of Plaintiff.”

(Withdrawal Aff. ¶ 4.) The Withdrawal Affirmation acknowledges that by sending the May 2023

Text Message to Defendant, Plaintiff “seemingly prejudiced Plaintiff’s entire cause of action

against Defendant” and that “[t]he contents of the alleged text message are in direct opposition

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to Plaintiff’s theory of the case.” (Id. ¶¶ 12, 17 (emphasis added).) The Withdrawal Affirmation

further states that “[a]fter discussing the contents of the [May 2023 Text Message] with [Plaintiff],

along with the contents of the entire letter sent by Defendant’s counsel, this Firm notified Plaintiff

that this Firm could no longer represent Plaintiff and that we would be asking the Court to relieve

us as counsel because of the irreconcilable differences between counsel and Plaintiff regarding the

proper course to be pursued in the litigation.” (Id. ¶ 13.)

On July 6, 2023, a hearing was held on the Motion to Withdraw, during which the Court

granted leave to Defendant to file the instant opposition to the Motion to Withdraw and a cross-

motion for dismissal of the case and for sanctions. (See Ex. X at 6:17-10:5.) The Motion to

Withdraw and the instant Cross-Motion will be fully briefed and submitted on October 6, 2023,

and a conference on the motions is scheduled for October 17. (See id. at 10:23-12:3.)

ARGUMENT

I. SUMMARY JUDGMENT SHOULD BE GRANTED IN FAVOR OF DEFENDANT
ON ALL CLAIMS.

Summary judgment “shall be granted if, upon all the papers and proof submitted, [a] cause

of action or defense shall be established sufficiently to warrant the court as a matter of law in

directing judgment” in a party’s favor. CPLR 3212(b). On a motion for summary judgment, “the

movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering

sufficient evidence to eliminate any material issues of fact from the case.” Harris v. Barbera, 79

N.Y.S.3d 643, 645 (2d Dep’t 2018). “Once the movant has made a prima facie showing of

entitlement to summary judgment, the opposing party must lay bare its proof and demonstrate, by

admissible evidence, the existence of a factual issue requiring a trial of the action.” Coratti v.

Wella Corp., 14 Misc. 3d 1204(A), at *5 (Sup. Ct. N.Y. Cty. 2006) (citing Zuckerman v. City of

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New York, 49 N.Y.2d 557 (1980)), aff’d, 56 A.D.3d 343 (1st Dep’t 2008). “Without such evidence

the motion will be granted.” Id.

Here, summary judgment should be granted in favor of Defendant because, nearly two

years after the commencement of this action and a year and a half after the commencement of

discovery, the only supposed evidence in support of Plaintiff’s claims consists of his own self-

serving statements in the Complaint—statements that are, as a matter of law, insufficient to create

a genuine issue of material fact because they are barred by the Dead Man’s Statute.

Under the Dead Man’s Statute, “[u]pon the trial of an action . . . , a party or a person

interested in the event [i.e., Plaintiff] . . . shall not be examined as a witness in his own behalf or

interest . . . against the executor, administrator or survivor of a deceased person [i.e., Defendant]

. . . concerning a personal transaction or communication between the witness [i.e., Plaintiff] and

the deceased person [i.e., Aaron] . . . , except where the executor, administrator, survivor,

committee or person so deriving title or interest is examined in his own behalf, or the testimony of

the . . . deceased person is given in evidence, concerning the same transaction or communication.”

CPLR § 4519. Thus, “[t]he statue prevents any person ‘interested in the event’ from testifying to

a ‘personal transaction’ with the deceased unless the representative of the deceased has waived the

protection of the statute by testifying himself or introducing the testimony of the decedent into

evidence at trial.” Matter of Wood’s Estate, 52 N.Y.2d 139, 144 (1981). In other words,

“[t]ransactions or communications between the interested witness and the decedent . . . must . . .

be proven by means other than the testimony of an interested witness, such as documentary

evidence and the testimony of disinterested witnesses.” CPLR § 4519, McKinney’s Practice

Commentaries.

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“[T]he fundamental purpose of the statute . . . is to protect the estate of a decedent from

claims of the living who, through their own perjury, could make factual assertions which the

decedent cannot refute in court.” Kuznitz v. Funk, 187 A.D.3d 1006, 1008 (2d Dep’t 2020). “Thus,

when death or mental illness seals the lips of one of the parties to a transaction, the Dead Man’s

Statute seeks to achieve adversarial balance by sealing the lips of the surviving party.” CPLR §

4519, McKinney’s Practice Commentaries.

As the Second Department has recently observed, the Dead Man’s Statute “by its terms”

excludes testimony of an interested party regarding a transaction or communication with the

decedent “[u]pon the trial of an action[.]” Stathis v. Estate of Karas, 147 N.Y.S.3d 83, 86 (2d

Dep’t 2021), leave to appeal denied, 38 N.Y.3d 903 (2022). Critically, “[w]here, as here, the sole

evidence proffered by the opposing party is barred by the Dead Man’s Statute, an award of

summary judgment is appropriate.” Id. at 87 (citing cases). Thus, in Stathis, the Second

Department affirmed the lower court’s grant of summary judgment to the defendant on the

plaintiff’s breach of contract and conversion claims, where the only evidence offered in opposition

to summary judgment regarding the existence of a critical agreement was plaintiff’s own

testimony, which would be inadmissible at trial under the Dead Man’s Rule. Id. at 85-87.

Likewise here, there is no evidence supporting Plaintiff’s claims other than his own self-

serving statements. That evidence is squarely barred by the Dead Man’s Statute. Plaintiff is clearly

a “party or a person interested in the event” who is seeking to testify “as a witness in his own

behalf or interest . . . against the . . . administrator . . . of a deceased person” under CPLR 4519

because he is offering his testimony to obtain a judgment against Defendant and will “either gain

or lose by the direct legal operation and effect of the judgment[,]” CPLR 4519, McKinney’s

Practice Commentaries (citing Laka v. Krystek, 261 N.Y. 126, 130 (1933)). Plaintiff is also plainly

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seeking to testify “concerning a personal transaction or communication between the witness [i.e.,

him] and the deceased person.” CPLR 4519. A “personal transaction or communication” includes

“every method by which one person can derive impressions or information from the conduct,

condition, or language of another.” Holcomb v. Holcomb, 95 N.Y. 316, 325 (1884) (emphasis

added); see also Griswold v. Hart, 205 N.Y. 384, 395 (1912) (Dead Man’s Statute excludes

testimony of an interested witness regarding “any knowledge which he has gained by the use of

his senses from the personal presence of the deceased”). Here, any testimony by Plaintiff

concerning his communications with Aaron and the alleged assault would clearly constitute

testimony “concerning a personal transaction or communication between” him and Aaron, as it

would require testimony regarding Aaron’s alleged conduct. See ROI, Inc. v. Hidden Valley Realty

Corp., 45 A.D.3d 1010, 1011-12 (3d Dep’t 2007) (testimony regarding “transactions, interactions,

and verbal and written communications” with the deceased were barred by the Dead Man’s

Statute); Gurski v. Sapowitch, 276 A.D. 821, 821-22 (4th Dep’t 1949) (act of placing box in

decedent’s trunk “constituted a personal transaction with the deceased”); People ex rel. Blake v.

Charger, 76 Misc. 2d 577, 578 (Fam. Ct. Queens Cty. 1974) (acts of sexual intercourse and

cohabitation were “transactions within the meaning of the statute”).

Absent Plaintiff’s own self-serving statements that are barred by the Dead Man’s Statute,

there is not a shred of evidence to support Plaintiff’s claims. There is no evidence—whether by

text message, emails, or other documentary evidence—suggesting that Plaintiff was harassed and

assaulted by Aaron. (SOF ¶ 5.) Nor has Plaintiff identified any viable basis for proving the alleged

assault or harassment.

Because the only evidence purportedly supporting Plaintiff’s claims (his own testimony)

would be barred from trial under the Dead Man’s Statute, there is no genuine issue of material fact

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for trial. Accordingly, summary judgment should be granted in favor of Defendant on all claims

and the Complaint should be dismissed in its entirety. See, e.g., Stathis, 147 N.Y.S.3d at 86; Matter

of Estate of Lockwood, 234 A.D.2d 782, 782-783 (3d Dep’t 1996) (affirming summary judgment

in favor of the petitioner where the “sole evidence proffered by the opposing party [was] the latter’s

oral communication with the decedent,” which was barred by the Dead Man’s Statute, and he

“failed to offer any further extrinsic evidence to support his claim”).

II. THE COURT SHOULD APPROVE AN AWARD OF ATTORNEY’S FEES AND
COSTS AGAINST PLAINTIFF AND HIS COUNSEL.

In light of the frivolous nature of Plaintiff’s claims and his counsel’s conduct, an award of

attorney’s fees and costs to Defendant is warranted under CPLR 8303-a and Part 130.

CPLR 8303-a provides that, “in an action to recover damages for personal injury,” if an

“action or claim is commenced or continued by a plaintiff . . . and is found, at any time during the

proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful

party costs and reasonable attorney’s fees not exceeding ten thousand dollars.” CPLR 8303-a(a)

(emphasis added).10 The award may be assessed “either against the party bringing the action [or]

claim . . . or against the attorney for such party, or against both, as may be determined by the

court[.]” CPLR 8303-a(b).

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Case Info

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Sharon Gianelli Track Judge’s New Case

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Document Filed Date

August 10, 2023

Case Filing Date

January 05, 2022

County

Parties

Archstone Group NYC LLC Defendant
FILOSA, ANTHONY RUDY Attorney for the Plaintiff
KATZ, KENNETH J Attorney for the Defendant
Michael Miller Defendant
Property Analytix, LLC Defendant
R.D. Geronimo, LTD Plaintiff
Richard J. Digeronimo Plaintiff
RIGER, LEE E. Attorney for the Plaintiff
ROSENBERG, DAVID I. Attorney for the Plaintiff
Royce ashton Rowles Defendant
Ryan Lin Defendant
SACKOWITZ, ADAM JOSEPH Attorney for the Defendant

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Motion-Secondary: Richard J. Digeronimo, R.D. Geronimo, Ltd v. Property Analytix, Llc, Archstone Group Nyc Llc, Michael Miller, Royce Ashton Rowles, Ryan Lin

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