Preview
D OUN PK 09 SIV INDEX NO. 61665/2021
NYSCEF Doc. NO. 208 RECEIVED NYSCEF: 09/25/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
penne enn - Index No.: 61665/2021
NEIL B. RICE,
Plaintiff,
-against-
LEE R. EINSIDLER,
As Administrator of the Estate of
Aaron Michael Einsidler aka
Aaron M. Einsidler
Defendant.
wenn nen enn
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S
CROSS-MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .
PRELIMINARY STATEMENT
BRIEF STATEMENT OF PROCEDURAL FACTS
ARGUMENT
I Plaintiff's Counsel’s request to withdraw their
representation should be granted since Defendant’s
Counsel expressed their consent to such relief.
IL Summary judgment in favor of Defendant should be denied. «00.0... 3
CONCLUSION
CERTIFICATION
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TABLE OF AUTHORITIES
Cases Page
1140 Broadway LLC v. Bold Food, LLC
2020 NY Slip Op 34017(U) (Sup. Ct. N.Y. Co. 12/03/2020)
Alvarez v. Prospect Hosp.
68 NY2d 320 (1986) 3,4
Bank of Am. v. Cooper.
63 Mise.3d 1214(A), 114 N.Y.S.3d 584(Table) (Civ. Ct. Kings Co. 2019) 3,5
Friends of Animals, Inc. v. Associated Fur Mfrs., Inc
46 N.Y.2d 1065, 1067-68 (1979)
Giuffrida v. Citibank Corp.
790 N.E.2d 772, 760 N.Y.S.2d 397, 100 N.Y.2d 72 (2003)
Jacobsen v New York City Health and Hospitals Corp.
22 NY3d 824, 833 (2014)
Martin v. Citibank, N.A.
64 AD3d 477, 883 NYS2d 483,
2009 NY Slip Op 5906 (1st Dep’t 2009)
Ortiz v. Varsity Holdings, LLC
2011 NY Slip Op 9161, 18 NY3d 335,
937 N.Y.S.2d 157, 960 N.E.2d 948 (2011).
Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP
2015 NY Slip Op 7693, 26 N.Y.3d 40,
41 N.E.3d 353, 19 N.Y.S.3d 488 (2015)
Rentz v. Modell
695 N.Y.S.2d 98, 262 AD2d 545 (2d Dep’t 1999)
State Farm Mut. Auto. Ins. Co. v. Sweetwater Chiropractic, P.C.
60 Misc.3d 1219(A), 110 N.Y.S.3d 492(Table) (N.Y. Sup. Ct. 2018)
Tronlone v Lac d'Amiante Du Quebec, Ltee
297 AD2d 528, 528-29, 747 NYS2d 79 (1st Dept 2002),
affd 99 NY2d 647, 760 NYS2d 96 (2003)
ii
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TABLE OF AUTHORITIES
(Cont’d)
Cases Page
Vega v. Restani Constr. Corp.
18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012)
William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh,
22 N.Y.3d 470, 5 N.E.3d 976, 982 N.Y.S.2d 813,
2013 N.Y. Slip Op. 8373 (2013)
Winegrad v. New York University Medical Center
487 N.Y.S.2d 316, 64 N.Y.2d 851 [1985]) 3,4
Shchukin House Ou v. Iseev
2017 NY Slip Op 30421(U) (Sup. Ct. N.Y. Co. 03/02/2017)
Sillman v. Twentieth Centurv-Fox Film Corp.
3 NY2d 395 (1957)
Zuckerman v. City of New York
49 NY2d 557, 562 (1980) 3,4
Rules and Regulations
Rule 3.4, 22 NYCRR 1200
iii
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PRELIMINARY STATEMENT
Plaintiff filed this tort action by naming the administrator of the Decedent’s estate as
Defendant. The controversy has been set for trial. Pretrial discovery continues. Upon Plaintiff
Counsel’s motion to be relieved as counsel, Defendant has taken the opportunity to submit a cross-
motion for summary judgment and for sanctions. This memorandum of law argues that summary
judgment should be denied so that the case matter can proceed to trial after the completion of
outstanding discovery, including the depositions of the respective parties.
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BRIEF STATEMENT OF RELEVANT PROCEDURAL FACTS
On August 25, 2021, Neil B. Rice (“Plaintiff”) filed and served a summons and complaint
against Lee R. Einsidler (“Defendant”), the administrator of the estate of Aaron M. Einsidler
(‘“Decedent”). (NYSCEF Doc. No. 1.) The complaint sought damages for asserted tortious
actions against Plaintiff by the Decedent. On or about September 21, 2021, after consenting to an
extension of time for submitting an answer and without any prompting for discovery by Defendant,
Plaintiff subpoenaed his own landline phone records (NYSCEF Doce. No. 4), the results of which
were transmitted to Defendant on or about October 26, 2021 (NYSCEF Doc. No. 8). Defendant
served a verified answer on November 23, 2021 (NYSCEF Doc. No.29). Pre-trial discovery has
continued through all these months. Plaintiff has recently been ordered to provide discovery
documents pursuant to this Court’s Decision and Order of September 6, 2023. On or about May
31, 2023, Plaintiff's Counsel filed a motion by order to show cause to be relieved as counsel. At
the hearing regarding Plaintiff's Counsel’s order to show cause, Defendant’s Counsel, refused to
object to Plaintiff Counsel’s request to withdraw as counsel, editorializing that they could not care
less. (NYSCEF Doc. No. 199, Hr’g Tr. 3:7-12; 6:6 -7:1, July 6, 2023.) Instead, Defendant’s
Counsel filed a cross-motion for summary judgment, which included a request to impose sanctions
against Plaintiff and Plaintiffs Counsel. This memorandum of law argues against Defendant’s
cross-motion.
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ARGUMENT
I Plaintiff's Counsel’s request to withdraw their representation should be granted
since Defendant’s Counsel expressed their consent to such relief.
This Court has received no opposition to Plaintiff-Counsel’s Motion to be relieved as
Plaintiffs counsel. As Attorney Ohring stated before the Honorable Justice Greenwald, “[W]e
are not opposing plaintiff's counsel withdrawing. I mean, frankly, we don't care.” (NYSCEF
Doe. No. 199, Hr’g Tr. 3:7-12, July 6, 2023.)
Therefore, since Defendant’s Counsel unquestionably consents on the record that
Plaintiff's Counsel can be relieved as counsel, this Court should grant Plaintiff Counsel’s Order to
Show Cause to withdraw their representation of Plaintiff.
Il. Summary judgment in favor of Defendant should be denied.
Defendant’s Motion for Summary Judgment and Sanctions has failed to proffer sufficient
evidence in admissible form demonstrating the absence of triable issues of fact that would
warrant this Court’s granting, as a matter of law, summary judgment in Defendant’s favor. See
Winegrad v. New York University Medical Center, 487 N.Y.S.2d 316, 64 N.Y.2d 851 (1985);
Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980);
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986).
Courts consider summary judgment a “drastic remedy in that it deprives the non-movant
party of her day in court.” Bank of Am. v. Cooper, 63 Misc.3d 1214(A), 114. N.Y.S.3d
584(Table) (Civ. Ct. Kings Co. 2019), citing the Court of Appeals in Sillman v. Twentieth
Centurv-Fox Film Corp., 3 NY2d 395 (1957) and Alvarez v. Prospect Hosp., 68 NY2d 320
(1986). (Emphasis added.) The moving party’s burden is, therefore, “a heavy one.” William J.
Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 5 N.E.3d 976, 982
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N.Y.S.2d 813, 2013 N.Y. Slip Op. 8373 (2013) (citing Vega v. Restani Constr. Corp., 18 N.Y.3d
499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]) (emphasis added).
A court must view the facts “in the light most favorable to the non-moving party.”
William J. Jenack, supra. See also Ortiz v. Varsity Holdings, LLC, 2011 NY Slip Op 9161, 18
NY3d 335, 937 N.Y.S.2d 157, 960 N.E.2d 948 (2011).
“A proponent of a motion for summary judgment 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.” Rentz v. Modell, 695 N.Y.S.2d 98, 262 AD2d 545 (2d
Dep’t 1999) (citing Winegrad v. New York University Medical Center, 487 N.Y.S.2d 316, 64
N.Y.2d 851 [1985]) (emphasis added).
Evidence proffered in support “must be in admissible form.” Shchukin House Ou v.
Iseev, 2017 NY Slip Op 30421(U) (Sup. Ct. N.Y. Co. 03/02/2017) (citing Friends of Animals.
Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067-68 [1979]). See also Zuckerman v. City
of New York, 49 NY2d 557, 562 (1980); Jacobsen v New York City Health and Hospitals Corp.,
22 NY3d 824, 833 (2014); Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986).
Failure to meet the prima facie showing “requires denial of the motion, regardless of the
sufficiency of the opposing papers.” Rentz v. Modell, 695 N.Y.S.2d 98, 262 AD2d 545 (2d
Dep’t 1999) (citing Winegrad, supra.) (emphasis added)
Only after a proponent of summary judgment meets its burden of demonstrating a prima
facie entitlement to summary judgment, does the burden then shift to the non-moving party to
establish that material issues of fact exist that require a fact-finding trial. Giuffrida v. Citibank
Corp., 790 N.E.2d 772, 760 N.Y.S.2d 397, 100 N.Y.2d 72 (2003) (citing Alvarez, supra.). See
also Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2015 NY Slip Op
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7693, 26 N.Y.3d 40, 41 N.E.3d 353, 19 N.Y.S.3d 488 (2015). “A court must only determine
whether or not there are bonafide issues of fact and [should] not . . . resolve issues of credibility.”
State Farm Mut. Auto. Ins. Co. v. Sweetwater Chiropractic, P.C., 60 Misc.3d 1219(A), 110
N.Y.S.3d 492(Table) (N.Y. Sup. Ct. 2018).
“[T]he court's function is issue finding, not issue determination.” Martin v. Citibank.
N.A., 64 AD3d 477, 883 NYS2d 483, 2009 NY Slip Op 5906 (Ist Dep’t 2009). “If the court is
unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the
motion must be denied.” 1140 Broadway LLC v. Bold Food, LLC, 2020 NY Slip Op 34017(U)
(Sup. Ct. N.Y. Co. 12/03/2020) (citing Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d
528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]). Even a
“scintilla of doubt” can be enough to require the denial of summary judgment. Bank of Am. v.
Cooper, 63 Misc.3d 1214(A), 114 N.Y.S.3d 584(Table) (Civ. Ct. Kings Co. 2019).
In the instant cross-motion for summary judgment now before this Court, Defendant has
failed to meet his burden regardless of the sufficiency of Plaintiff’s opposing papers. Discovery
is incomplete and the deposing of parties continues to be delayed. As a result of lacking
evidence that would support summary judgment, Defendant’s Counsel has decided to abandon
the requirement of “evidence in admissible form” for the purpose of inundating their cross-
motion with spurious and highly inflammatory allegations that may ultimately be prohibited
from and unwelcomed at trial.
Defendant Counsel’s addition of unproven, highly prejudicial allegations a summary
judgment does not make. Nor does Defendant Counsel’s self-serving descriptions of the content
of a cell phone in their exclusive possession. Additionally the mindreading of witnesses or
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counselors and the divination of private conversations between attorney and client should not be
considered evidence.
Defendant Counsel’s “sleuthing” provides nothing but libelous conjecture and hearsay
without the necessary evidentiary foundations and determinations of relevancy. Short of proving
their allegations, the threat of which is inimical to the directive of Rule 3.4 in the New York
Rules of Professional Conduct which prohibits lawyers from presenting, participating in the
presenting, or threatening to present criminal charges solely to obtain an advantage in a civil
matter, Defendant Counsel’s efforts ought not be an attempt at poisoning the evidence to unduly
prejudice and unduly influence what should be a considered and measured application of the law
and the facts.
In sum, Defendant’s cross-motion for summary judgment should be denied in its entirety
which includes the threat of sanctions founded solely upon Defendant’s opinion that this instant
case matter is a “sham” and a “shakedown.”
CONCLUSION
For the foregoing reasons, Plaintiff Counsel’s application to be relieved as counsel should
be granted in its entirety, and Defendant Counsel’s motion for summary judgment should be denied
in its entirety.
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Certification Pursuant to 22 NYCRR 202.8-b
I, Steven M. Brunnlehrman, an attorney duly licensed to practice before the Courts of the
State of New York, certify that the word count for the above Memorandum of Law in Support of
Plaintiff's Motion to compel authorizations complies with the word count limit of 22 NYCRR
202.8-b Rules of the Supreme Court of the State of New York because it contains less than 4,200
words.
Dated: Bronx, New York
September 24, 2023
Mein d. Boul bh
ROSMAN LEGAL, P.C.
By Steven M. Brunnlehrman, Esq.
Attorney(s)for the Plaintiff
635 Minnieford Avenue, Top Fl.
Bronx, NY 10464-1143
Phone: 914-980-3679
rob@rosmanlegal.com
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Index No. 61665/2021
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF WESTCHESTER
NEIL B. RICE,
Plaintiff
-against-
LEE R. EINSIDLER,
As Administrator of the Estate of
Aaron Michael Einsidler aka Aaron
Defendant.
M. Einsidler
MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT’S
CROSS-MOTION FOR SUMMARY JUDGMENT
ROSMAN LEGAL P.C.
Attorneysfor Plaintiff
635 Minnieford Avenue, Top FI.
Bronx, NY 10464-1143
Phone: 914-980-3679
Attorney(s) for Plaintiff
ROSMAN LEGAL, P.C.
Receipt Acknowledged:
Attorney(s) for the Plaintiff
By Steven M. Brunnlehrman, Esq, Of Counsel.
635 Minnieford Avenue, Top FI.
Bronx, NY 10464-1143
Print Name: Date Phone: 914-980-3679
rob@rosmanlegal.com
Attorney Certification (Rule 130-1.1)
Niven h. Bong b—
Steven M. Brunnlehrman, Esq.
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Preview
D OUN PK 09 SIV INDEX NO. 61665/2021 NYSCEF Doc. NO. 208 RECEIVED NYSCEF: 09/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER penne enn - Index No.: 61665/2021 NEIL B. RICE, Plaintiff, -against- LEE R. EINSIDLER, As Administrator of the Estate of Aaron Michael Einsidler aka Aaron M. Einsidler Defendant. wenn nen enn MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 1 of 12 D: OUN PK 09 QD: SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES . PRELIMINARY STATEMENT BRIEF STATEMENT OF PROCEDURAL FACTS ARGUMENT I Plaintiff's Counsel’s request to withdraw their representation should be granted since Defendant’s Counsel expressed their consent to such relief. IL Summary judgment in favor of Defendant should be denied. «00.0... 3 CONCLUSION CERTIFICATION 2 of 12 D OUN PK 09 SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 TABLE OF AUTHORITIES Cases Page 1140 Broadway LLC v. Bold Food, LLC 2020 NY Slip Op 34017(U) (Sup. Ct. N.Y. Co. 12/03/2020) Alvarez v. Prospect Hosp. 68 NY2d 320 (1986) 3,4 Bank of Am. v. Cooper. 63 Mise.3d 1214(A), 114 N.Y.S.3d 584(Table) (Civ. Ct. Kings Co. 2019) 3,5 Friends of Animals, Inc. v. Associated Fur Mfrs., Inc 46 N.Y.2d 1065, 1067-68 (1979) Giuffrida v. Citibank Corp. 790 N.E.2d 772, 760 N.Y.S.2d 397, 100 N.Y.2d 72 (2003) Jacobsen v New York City Health and Hospitals Corp. 22 NY3d 824, 833 (2014) Martin v. Citibank, N.A. 64 AD3d 477, 883 NYS2d 483, 2009 NY Slip Op 5906 (1st Dep’t 2009) Ortiz v. Varsity Holdings, LLC 2011 NY Slip Op 9161, 18 NY3d 335, 937 N.Y.S.2d 157, 960 N.E.2d 948 (2011). Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP 2015 NY Slip Op 7693, 26 N.Y.3d 40, 41 N.E.3d 353, 19 N.Y.S.3d 488 (2015) Rentz v. Modell 695 N.Y.S.2d 98, 262 AD2d 545 (2d Dep’t 1999) State Farm Mut. Auto. Ins. Co. v. Sweetwater Chiropractic, P.C. 60 Misc.3d 1219(A), 110 N.Y.S.3d 492(Table) (N.Y. Sup. Ct. 2018) Tronlone v Lac d'Amiante Du Quebec, Ltee 297 AD2d 528, 528-29, 747 NYS2d 79 (1st Dept 2002), affd 99 NY2d 647, 760 NYS2d 96 (2003) ii 3 of 12 D: OUN PK 09 O° SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 TABLE OF AUTHORITIES (Cont’d) Cases Page Vega v. Restani Constr. Corp. 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012) William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 5 N.E.3d 976, 982 N.Y.S.2d 813, 2013 N.Y. Slip Op. 8373 (2013) Winegrad v. New York University Medical Center 487 N.Y.S.2d 316, 64 N.Y.2d 851 [1985]) 3,4 Shchukin House Ou v. Iseev 2017 NY Slip Op 30421(U) (Sup. Ct. N.Y. Co. 03/02/2017) Sillman v. Twentieth Centurv-Fox Film Corp. 3 NY2d 395 (1957) Zuckerman v. City of New York 49 NY2d 557, 562 (1980) 3,4 Rules and Regulations Rule 3.4, 22 NYCRR 1200 iii 4 of 12 OUN INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 PRELIMINARY STATEMENT Plaintiff filed this tort action by naming the administrator of the Decedent’s estate as Defendant. The controversy has been set for trial. Pretrial discovery continues. Upon Plaintiff Counsel’s motion to be relieved as counsel, Defendant has taken the opportunity to submit a cross- motion for summary judgment and for sanctions. This memorandum of law argues that summary judgment should be denied so that the case matter can proceed to trial after the completion of outstanding discovery, including the depositions of the respective parties. 5 of 12 D: OUN PK 09 QD: SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 BRIEF STATEMENT OF RELEVANT PROCEDURAL FACTS On August 25, 2021, Neil B. Rice (“Plaintiff”) filed and served a summons and complaint against Lee R. Einsidler (“Defendant”), the administrator of the estate of Aaron M. Einsidler (‘“Decedent”). (NYSCEF Doc. No. 1.) The complaint sought damages for asserted tortious actions against Plaintiff by the Decedent. On or about September 21, 2021, after consenting to an extension of time for submitting an answer and without any prompting for discovery by Defendant, Plaintiff subpoenaed his own landline phone records (NYSCEF Doce. No. 4), the results of which were transmitted to Defendant on or about October 26, 2021 (NYSCEF Doc. No. 8). Defendant served a verified answer on November 23, 2021 (NYSCEF Doc. No.29). Pre-trial discovery has continued through all these months. Plaintiff has recently been ordered to provide discovery documents pursuant to this Court’s Decision and Order of September 6, 2023. On or about May 31, 2023, Plaintiff's Counsel filed a motion by order to show cause to be relieved as counsel. At the hearing regarding Plaintiff's Counsel’s order to show cause, Defendant’s Counsel, refused to object to Plaintiff Counsel’s request to withdraw as counsel, editorializing that they could not care less. (NYSCEF Doc. No. 199, Hr’g Tr. 3:7-12; 6:6 -7:1, July 6, 2023.) Instead, Defendant’s Counsel filed a cross-motion for summary judgment, which included a request to impose sanctions against Plaintiff and Plaintiffs Counsel. This memorandum of law argues against Defendant’s cross-motion. 6 of 12 D: OUN PK 09 QD: SIV INDEX NO 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF 09/25/2023 ARGUMENT I Plaintiff's Counsel’s request to withdraw their representation should be granted since Defendant’s Counsel expressed their consent to such relief. This Court has received no opposition to Plaintiff-Counsel’s Motion to be relieved as Plaintiffs counsel. As Attorney Ohring stated before the Honorable Justice Greenwald, “[W]e are not opposing plaintiff's counsel withdrawing. I mean, frankly, we don't care.” (NYSCEF Doe. No. 199, Hr’g Tr. 3:7-12, July 6, 2023.) Therefore, since Defendant’s Counsel unquestionably consents on the record that Plaintiff's Counsel can be relieved as counsel, this Court should grant Plaintiff Counsel’s Order to Show Cause to withdraw their representation of Plaintiff. Il. Summary judgment in favor of Defendant should be denied. Defendant’s Motion for Summary Judgment and Sanctions has failed to proffer sufficient evidence in admissible form demonstrating the absence of triable issues of fact that would warrant this Court’s granting, as a matter of law, summary judgment in Defendant’s favor. See Winegrad v. New York University Medical Center, 487 N.Y.S.2d 316, 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). Courts consider summary judgment a “drastic remedy in that it deprives the non-movant party of her day in court.” Bank of Am. v. Cooper, 63 Misc.3d 1214(A), 114. N.Y.S.3d 584(Table) (Civ. Ct. Kings Co. 2019), citing the Court of Appeals in Sillman v. Twentieth Centurv-Fox Film Corp., 3 NY2d 395 (1957) and Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). (Emphasis added.) The moving party’s burden is, therefore, “a heavy one.” William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 5 N.E.3d 976, 982 7 of 12 D: OUN PK 09 QD: SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 N.Y.S.2d 813, 2013 N.Y. Slip Op. 8373 (2013) (citing Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]) (emphasis added). A court must view the facts “in the light most favorable to the non-moving party.” William J. Jenack, supra. See also Ortiz v. Varsity Holdings, LLC, 2011 NY Slip Op 9161, 18 NY3d 335, 937 N.Y.S.2d 157, 960 N.E.2d 948 (2011). “A proponent of a motion for summary judgment 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.” Rentz v. Modell, 695 N.Y.S.2d 98, 262 AD2d 545 (2d Dep’t 1999) (citing Winegrad v. New York University Medical Center, 487 N.Y.S.2d 316, 64 N.Y.2d 851 [1985]) (emphasis added). Evidence proffered in support “must be in admissible form.” Shchukin House Ou v. Iseev, 2017 NY Slip Op 30421(U) (Sup. Ct. N.Y. Co. 03/02/2017) (citing Friends of Animals. Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067-68 [1979]). See also Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824, 833 (2014); Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Failure to meet the prima facie showing “requires denial of the motion, regardless of the sufficiency of the opposing papers.” Rentz v. Modell, 695 N.Y.S.2d 98, 262 AD2d 545 (2d Dep’t 1999) (citing Winegrad, supra.) (emphasis added) Only after a proponent of summary judgment meets its burden of demonstrating a prima facie entitlement to summary judgment, does the burden then shift to the non-moving party to establish that material issues of fact exist that require a fact-finding trial. Giuffrida v. Citibank Corp., 790 N.E.2d 772, 760 N.Y.S.2d 397, 100 N.Y.2d 72 (2003) (citing Alvarez, supra.). See also Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2015 NY Slip Op 8 of 12 D: OUN PK 09 QD: SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 7693, 26 N.Y.3d 40, 41 N.E.3d 353, 19 N.Y.S.3d 488 (2015). “A court must only determine whether or not there are bonafide issues of fact and [should] not . . . resolve issues of credibility.” State Farm Mut. Auto. Ins. Co. v. Sweetwater Chiropractic, P.C., 60 Misc.3d 1219(A), 110 N.Y.S.3d 492(Table) (N.Y. Sup. Ct. 2018). “[T]he court's function is issue finding, not issue determination.” Martin v. Citibank. N.A., 64 AD3d 477, 883 NYS2d 483, 2009 NY Slip Op 5906 (Ist Dep’t 2009). “If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied.” 1140 Broadway LLC v. Bold Food, LLC, 2020 NY Slip Op 34017(U) (Sup. Ct. N.Y. Co. 12/03/2020) (citing Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]). Even a “scintilla of doubt” can be enough to require the denial of summary judgment. Bank of Am. v. Cooper, 63 Misc.3d 1214(A), 114 N.Y.S.3d 584(Table) (Civ. Ct. Kings Co. 2019). In the instant cross-motion for summary judgment now before this Court, Defendant has failed to meet his burden regardless of the sufficiency of Plaintiff’s opposing papers. Discovery is incomplete and the deposing of parties continues to be delayed. As a result of lacking evidence that would support summary judgment, Defendant’s Counsel has decided to abandon the requirement of “evidence in admissible form” for the purpose of inundating their cross- motion with spurious and highly inflammatory allegations that may ultimately be prohibited from and unwelcomed at trial. Defendant Counsel’s addition of unproven, highly prejudicial allegations a summary judgment does not make. Nor does Defendant Counsel’s self-serving descriptions of the content of a cell phone in their exclusive possession. Additionally the mindreading of witnesses or 9 of 12 OUN INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 counselors and the divination of private conversations between attorney and client should not be considered evidence. Defendant Counsel’s “sleuthing” provides nothing but libelous conjecture and hearsay without the necessary evidentiary foundations and determinations of relevancy. Short of proving their allegations, the threat of which is inimical to the directive of Rule 3.4 in the New York Rules of Professional Conduct which prohibits lawyers from presenting, participating in the presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter, Defendant Counsel’s efforts ought not be an attempt at poisoning the evidence to unduly prejudice and unduly influence what should be a considered and measured application of the law and the facts. In sum, Defendant’s cross-motion for summary judgment should be denied in its entirety which includes the threat of sanctions founded solely upon Defendant’s opinion that this instant case matter is a “sham” and a “shakedown.” CONCLUSION For the foregoing reasons, Plaintiff Counsel’s application to be relieved as counsel should be granted in its entirety, and Defendant Counsel’s motion for summary judgment should be denied in its entirety. 10 of 12 D: OUN PK 09 QD: SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 Certification Pursuant to 22 NYCRR 202.8-b I, Steven M. Brunnlehrman, an attorney duly licensed to practice before the Courts of the State of New York, certify that the word count for the above Memorandum of Law in Support of Plaintiff's Motion to compel authorizations complies with the word count limit of 22 NYCRR 202.8-b Rules of the Supreme Court of the State of New York because it contains less than 4,200 words. Dated: Bronx, New York September 24, 2023 Mein d. Boul bh ROSMAN LEGAL, P.C. By Steven M. Brunnlehrman, Esq. Attorney(s)for the Plaintiff 635 Minnieford Avenue, Top Fl. Bronx, NY 10464-1143 Phone: 914-980-3679 rob@rosmanlegal.com 11 of 12 D: OUN PK 09 O° SIV INDEX NO. 61665/2021 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 09/25/2023 Index No. 61665/2021 SUPREME COURT OF STATE OF NEW YORK COUNTY OF WESTCHESTER NEIL B. RICE, Plaintiff -against- LEE R. EINSIDLER, As Administrator of the Estate of Aaron Michael Einsidler aka Aaron Defendant. M. Einsidler MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ROSMAN LEGAL P.C. Attorneysfor Plaintiff 635 Minnieford Avenue, Top FI. Bronx, NY 10464-1143 Phone: 914-980-3679 Attorney(s) for Plaintiff ROSMAN LEGAL, P.C. Receipt Acknowledged: Attorney(s) for the Plaintiff By Steven M. Brunnlehrman, Esq, Of Counsel. 635 Minnieford Avenue, Top FI. Bronx, NY 10464-1143 Print Name: Date Phone: 914-980-3679 rob@rosmanlegal.com Attorney Certification (Rule 130-1.1) Niven h. Bong b— Steven M. Brunnlehrman, Esq. 12 of 12