Preview
FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013
NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------·· -------X
BRANDSWAY HOSPITALITY, LLC, a/k/a Index No. 652637/2013
BRANDSWAY HOSPITALITY , INDIEFORK, LLC
ATTORNEY
Plaintiff, AFFIRMATION IN
-against- OPPOSITION
DELSHAH CAPITAL LLC Hon. Shieme S. Hagler
Defendant. Return Date: 12/2/19
------------------ ---------------------------------X
JONATHAN B. SCHWARTZMAN, an attorney at law duly admitted to practice
before the courts of the State of New York affirms the following to be true under the
penalties of perjury:
1. I am a member of the firm of Cordova & Schwartzman, LLP, which
("Defendant")1 above-
represents the defendant DELSHAH CAPITAL LLC in the
entitled action. As such I have personal knowledge of the facts set forth herein as
relevant to this motion.
2. I submit this affirmation in opposition to Plaintiff's order to show cause to
strike Defendant's Answer and for sanctions, the second such motion made by Plainti ffin
months!2
the past seven As will be shown herein by documentary evidence -the emails
between counsel and Defendant's letter to the Court -- Plaintiff's motion should be
denied as Defendant acted immediately and in good faith to comply with the Court's
Order. In fact, Defêñdant's good faith is amply demonstrated by the fact that Defendant
I inthe caption the of theindividual Plaintiffand but Plaintiffhas
Plaintiffincludes names Defcñdâñts,
stipulatedto remove the iñdividuals from the caption. A copy of the Stipula%n isannexed hereto as
Exhibit Y.
2 on April 2019.
NYSCEF Doc. No. 681, filed 12,
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sent the Court a letter in an attempt to avert this very motion, a copy of which is annexed
hereto as Exhibit S.
3. Moreover, striking the defendant's Answer is a harsh remedy and the facts
provided below will clearly reveal Defendant acted in good faith at alltimes, and , infact,
Defendant will show that ithad to demand Plaintiff produce certain documents eigh_t
times and threaten a motion, even though the Court had Ordered the production of those
documents. Rather itis Plaintiff who acted in bad faith by seeking to limit Defendant's
deposition of Plaintiff without any reason or explanation.
4. Simply stated, this motion is premised on Plaintiff's attempt to prejudice
Defendant by limiting the time of Plaintiff s deposition by demanding that the deposition
be held in one of only two rooms available at the Courthouse, without the ability to
reserve those rooms in advance.
5. Tellingly, Plaintiff's counsel made this demand only days before the
scheduled date and without any explanation. Indeed, itmust be noted that in Plaintiff s
motion papers, there is no explanation why the deposition needed to be conducted in the
Courthouse, when the prior depositions of Plaintiff have all been conducted at the
Manhattan office of Plaintiff's counsel!
6. Critically, in my experience in Nassau County Supreme Court, any
deposition rooms are only available from 9:30 a.m. and they close at 4:30 p.m. In
addition, the Court closes the rooms for lunch from 1:00-2:15. Thus, the depositions are
limited in time and are often disrupted. Clearly, with the Court having specifically
limited Plaintiff's deposition to one day, Plaintiff was looking to prejudice Defendant by
limiting the time and place of the deposition, without giving any reason or explanation.
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"win-win"
7. Obviously, Plaintiff was attempting to engineer a situation:
limit the time and location of Plaintiff's deposition to prejudice Defendant, and if
Defendant refuses to accept the limitation and not appear, move to strike the Answer.
This is a terrible bad faith litigation stunt. The Court should not countenance such bad
faith tactics.
confirmed"
8. In regard to the motion, initially, Plaintiff claims that I "twice
that Defendant was going to depose Plaintiff on November 13, 2019. This is a
fabrication. as shown by the emails below. In fact, I specifically warned Plaintiff's
counsel that if he continued seeking to limit Plaintiff's deposition, Defendant would not
appear and deem discovery waived.
9. Plaintiff also asserts that Defendant has admitted Plaintiff s claim. This is
another false statement slyly slipped into Plaintiff s argument as Plaintiff knows that the
affidavit is a publically filed document. To the contrary, Defeñdant maiñtains and can
prove that Plaintiff was terminated for cause, not the least of which was itstheft and
wrongful acts. Indeed, Plaintiff's counsel specifically admitted that Plaintiff committed
wrongdoing"
wrongdoing, but argued that itwas "not sufficient for purposes of
terminating the agreement in issue. A copy of the relevant page from the transcript of the
oral argument on February 4, 2019 is annexed hereto as Exhibit X. Defendant
specifically states that the termination of Plaintiff was for cause, and does not admit
otherwise.
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10. In regard to the underlying facts, on September 23, 2019, the parties
appeared before the Court for oral arguments on motion. At that time, the Court directed
3
the following:
i. That Plaintiff provide a verified list of the checks Plaintiff claims
were forged;
ii. that Plaintiff then be deposed for 1 day, but the Court did not set a
date certain;
iii. that Defendant produce for deposition Michael Shah and James
Choung, each to be deposed for 1 day, but the Court did not set
dates certain;
iv. that Defendant provide Plaintiff's expert with access to the
program;4
Quickbooks and
v. the Court set a December 31, 2019 deadline for the filing of the
Notes of Issue in this case and the companion case pending before
the Court, entitled 133 Essex Restaurant, LLC v. Brandsway
Hospitality, Index No. 651629/2013.
11. Only three days later, on September 26, 2019, on behalf of Defendant I
"forged"
requested the verified listof purportedly checks (the "Verified Check List") and
a date for Plaintiff's deposition, as per the Court's Order. A copy of said email is
annexed hereto as Exhibit A. Plaintiff ignored the request for the Verified Check List,
forcing a second email, annexed hereto as Exhibit B. Astonishingly, Plaintiff feigned
ignorance, requiring yet another email from me, annexed hereto as Exhibit C. Indeed, I
3 we do not have the oralargürsêñt despitea number of requests to thereporter.
Unfortüñâtcly, transcript,
4 of Quickbooks data was provided to Plaintiff.
Hard copies the prcvicualy
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had to specifically threaten Court intervention if the Verified Check List was not
produced as per the Court. See, Ex. C.
12. The very next day, September 27, 2019, I again demanded the production
of the Verified Check List, and I also again asked for oronosed deposition dates. A copy
of the email dated September 27, 2019 at 12:00 p.m. is annexed hereto as Exhibit D.
Clearly, Defendant was acting in good faith.
13. Astonishingly, Plaintiff's counsel responded by email that he is "very
busy" week."
and that he "will look at this next A copy of said email is annexed hereto
as Exhibit E. In response, I specifically wrote the following:
Still no affirmative responses to any of my points.
Please understand that the Court has Ordered that Plaintiff be deposed
first.
We need that date to figure out the rest.
Noticeably, the Court did not order that plaintiff provide an EBT date only
after the defendant's EBT was scheduled.
Do we need to conference with the Court on these issues?
This is who this case has dragged on..
A copy of the email dated September 27, 2019 at 12:28 p.m.is annexed hereto as Exhibit
F (Emphasis supplied).
14. This email clearly proves that Defendant was acting in accordance with
the Court's direction. Plaintiff's counsel did not respond to this email.
15. Accordingly, on October 1, 2019, I sent my fourth email again demanding
the production of the Verified Check List, and I also again asked for proposed deposition
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dates. A copy of said email is annexed hereto as Exhibit G. Plaintiff's counsel did not
respond to this email.
16. On October 2, 2019, I sent my fifth demand for the production of the
Verified Check List, and for proposed deposition dates. A copy of said email is annexed
hereto as Exhibit H.
17. Plaintiff's counsel responded to this by stating that he was "in the middle
Brooklyn."
of pre-trial hearings in He also asked about being given access to the
Quickbooks. Within four minutes, I responded that Defendant would provide access to
the Quickbooks to Plaintiff's expert, and requested the name of the expert. S_ee, emails
dated October 2, 2019 annexed hereto as Exhibit I.
18. Despite my constant requests, Plaintiff had stillrefused to produce the
Verified Check List, and stillrefused to provide prop_ose-d_dep_osition dates. Thus, on
October 3, 2019, I sent my sixth email demand to counsel. A copy of said email is
annexed hereto as Exhibit J. Plaintiffs counsel did not respond to this email.
19. Accordingly, on October 4, 2019, I sent my seventh email, again
demanding the production of the Verified Check List, and I also again asked for proposed
deposition dates. A copy of said email is annexed hereto as Exhibit K.
20. Plaintiffs counsel responded to this email but did not produce the Verified
Check List or provide dates for the depositions. Rather, Plaintiff's counsel stated that the
Quickbooks access was the firstdeadline. By email also dated October 4, 2019, I
corrected counsel. A copy of said email is annexed hereto as Exhibit L. Plaintiff's
counsel did not respond to this email.
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21. Accordingly, on October 7, 2019, I sent my eighth email, again
demañding the production of the Verified Check List, and I also again asked for proposed
deposition dates. A copy of said email is annexed hereto as Exhibit M.
22. On October 8, 2019-the very last day of the Court's deadline--Plaintiff
finally posted the Verified Check List, but failed to provide any dates for Plaintiff's
deposition, so, again, I was forced to request dates. A copy of said email and a copy of a
second email also dated October 8, 2019 are annexed hereto as Exhibit N.
23. Finally, on October 11, 2019, nearly three weeks since the parties
appeared before the Court, Plaintiff finally provided proposed dates, the earliest of which
was October 31. A copy of this email is annexed hereto as Exhibit O.
24. In furtherance of the Court's Order, on October 16, 2019, I requested that
Plaintiff provide me with the name of the expert to review the Quickbooks. On October
22, 2019, Plaintiff's counsel finally provided the name of the expert. On October 25,
2019, Defendant emailed Plaintiff's expert to arrange for the Quickbooks review. Copies
P.5
of three emails are annexed hereto as Exhibit
25. Significantly, despite Plaintiff's claims as to not having the Quickbook
data, Plaintiff was provided with hard copies of that data. Nonetheless, once Plaintiff's
expert was identified we arranged for direct contact between the Defendant's accountant
and Plaintiff's expert for the review. Again, Defendant was acting in accordance with the
Court's direction.
26. On October 24, 2019, I proposed dates for the three depositions. On
October 25, 2019, the parties confirmed that the deposition of Plaintiff would be
5 The email account addresses of thenon-parties have been redacted.
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conducted on November 13, 2019 and the first Defendant deposition would be conducted
on November 19, 2019.
27. In fact, itwas Plaintiff's counsel who requested that the second
Defendant's deposition be conducted in December, even though the Court had directed
that the depositions be completed by the end of November. In the interest of actually
completing discovery in accordance with the Court's Order (and being courteous to
opposing counsel), I agreed, and the parties agreed on December 5, 2019. Copies of four
emails are annexed hereto as Exhibit Q.
28. Critically, the parties did not agree on a location for Plaintiff's deposition,
however the prior depositions of ?|siñtif f have all been conducted at the Mr h:::::
office of Plaintiff's counsel. Nonetheless, during the afternoon of Thursday, November
7, 2019, Plaintiff's counsel stated the he would only produce Plaintiff for a deposition at
the New York City Supreme Court Courthouse, despite the fact that counsel has an office
in Manhattan and that prior depositions had been conducted in that office.
29. I specifically asked Plaintiff for the basis of this demand, and I explained
that we can depose Plaintiff at Plaintiff's counsel's Manhattan office, as we had done
previously. Further, we have reporting services that provide offices in Maréanan which
were convenient for Plaintiff and Plaintiff's counsel. However, Plaintiff's counsel did
not respond, and he has never stated any basis for his refusal to produce Plaintiff
anywhere other than the Courthouse.
30. As noted, my experience in Nassau County is that due to the Court's
scheduling any depositions conducted in the Courthouse are limited in time and are often
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disrupted. Being limited on any further deposition of Plaintiff to one day, Defendant did
not want to be limited in the time and place of the deposition.
31. Nonetheless, I personally telephoned the Ex Parte Office in Manhattan to
see about deposition rooms, and I was told that there are only two rooms available and
that those rooms could not be reserved. Despite counsel's false claim that there are six
deposition rooms, on November 21, 2019, I personally confirmed in person at the Ex
parte Office that there are only two deposition rooms available.
32. Fearing a situation where we appear at the Courthouse only to discover
that there were no rooms available, I told Plaintiff's counsel that there were only two
deposition rooms, and that we could hold the deposition at a local court reporting agency.
A copy of my email dated November 7, 2019 is annexed hereto as Exhibit R. Plaintiff's
counsel refused.
33. In the hope of avoiding this exact motion practice, I sent counsel an email
explicitly stating that I would ask the Court to intervene. Counsel ignored me.
Accordingly, I filed a letter to the Court in the Electronic Filing System (NYSCEF Doc.
No. 790), requesting a teleconference with the Court to address Plaintiff's
obstreperousness. To be certain that Plaintiff understood that its demand was
unreasonable and that I had asked the Court to intervene, I forwarded the proof of Efiling
to counsel. Copies of the letter to the Court and emails are annexed hereto as Exhibit S.
34. Despite these filings, Plaintiff would not budge from itsunreasonable and
unexplaiñable position, even after taking multiple depositions at counsel's Manhattan
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office.6
Clearly, Plaintiff wanted nothing more than to limit, or worse to preclude
Plaintiff's deposition to Defendant's prejudice.
35. Plaintiff's counsel was fully aware that Defendant's counsel was
commuting from Long Island to Manhattan. As there were only two rooms available and
those rooms could not be reserved, the two rooms could easily have been booked upon
our arrival and the deposition would not have been able to go forward. Defendant's
counsel would have been put in the untenable position of having to scramble to find a
place to conduct the deposition while the clock was ticking on the one day that Defendant
had to depose Plaintiff. It ispatently clear that this was the reason for Plaintiff's
recalcitrance and absolute refusal to provide an explanation as to its objection to conduct
the deposition at another location in Manhattan.
36. Accordingly, on November 11, 2019, I specifically told counsel that
Plaintiff's actions were clearly undertaken to prejudice Defendant and that "[g]iven the
unreasonableness of plaintiff's position, I will either have to (1) move the Court for an
Order directing plaintiff to appear, or (2) assume that plaintiff is deliberately refusing to
discovery."
appear as a tactic, and that plaintiff is waiving any further A copy of said
email is annexed hereto as Exhibit T. Nonetheless, counsel refused, at which point I
it"
wrote "So be meaning that Defendant would either move or deem further discovery
waived due to Plaintiff's bad faith litigation tactic. Defendant elected to deem further
discovery waived.
6 Court"
Any claim thatPlaintiff"wanted to be near the is beliedby counsel's affinnation wherein he states
thathe would have agreed to hold the depositionin Armonk.
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37. Despite any claim to the contrary, Plaintiff's counsel specifically
acknowledged Defendant's position, writing on November 11, 2019 "Why did you have
easy."
another suggestion? You refused any offer to make it
38. In response, I specifically asked counsel for the basis of his unreasonable
position:
It's unreasonable.
You need to be in Manhattan regardless.
What is your objection?
A copy of said email is annexed hereto as Exhibit U.
39. Finally, in an attempt to avert this very motion, the night before the
scheduled deposition I sent a final email:
I specifically asked you what your objection was to conducting the EBT at
a location in Manhattan convenient to both you and your client.
You failed to provide any explanation or, indeed, even a response, instead
choosing to stand on your unreasonable demañd.
email.7
Accordingly, I refer you to my prior
A copy of said email is annexed hereto as Exhibit V.
40. Plaintiff's counsel refused to address this email. Clearly, Plaintiff's
counsel knew that Defendant would not accept its unreasonable attempt to limit the
deposition of Plaintiff to Defendant's prejudice. Accordingly, Defendant elected to deem
discovery waived, and itcancelled the review of the Quickbooks that had been scheduled
for the same day. This action was taken solely as a result of Plaintiff's bad faith attempt
to prejudice Defendant without an explanation, and, indeed, this is why the review was
cancelled at 6:15 a.m. on the morning scheduled for the review. Had Plaintiff not
7
The email that Defcñdañt would deem furtherdiscovery waived ifPlaintiffcontinued to be obstreperous,
not thatDefcadañt had agreed to thelocation. Counsel's claim to thecontrary isdisiñgaimia
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attempted to prejudice Defendant, both the deposition and the review would have
proceeded.
41. On the morning November 13, 2019, Plaintiff's counsel -knowing full
well that Defendant had deemed further discovery waived and was not appearing sent
an email that he intended to produce Plaintiff, clearly in the hope of bolstering the instant
motion. In response, I simply reiterated Plaintiff's unreasonable and prejudicial position:
You made the unreasonable demand to hold the deposition of plaintiff
solely at the Courthouse, even though I informed you that there were only
two EBT rooms available, and that the rooms could not be reserved.
I informed you that itwas unreasonable to hope that we would be able to
obtain a room and that if we did not, we would have travelled to
Manhattan for no reason.
We offered to conduct the deposition in your office in Manhattan, or in a
Court reporter's office near the Court. Nonetheless, you refused.
I asked you to set forth the basis of your refusal to conduct the deposition
in your office, yet you have failed to articulate any reason at all,and
ignored my requests for the basis of your refusal.
Indeed, even though I asked the Court by letterfor a conference on your
unreasonable demand, your continued to refuse to produce plaintiff at any
other location.
Accordingly, as I set forth in my email lastweek, due to your
unreasonable demand and clear attempt to limit the deposition of Plaintiff,
to Defendant's detriment and prejudice, Defendant has deemed Plaintiff to
have waived all further discovery.
Please filethe Note of Issue
A copy of said email is annexed hereto Exhibit W
42. Plaintiff now brings this motion to strike Defendant's Answer and for
sanctions. Tellingly, Plaintiff does not seek an order to compel the discovery; effectively
"giving away the game": Plaintiff engineered this entire situation in the hope of a "Hail
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Mary" "wrongdoing."
striking of the Answer in the face of Plaintiff's admitted e, Ex.
"wrongdoing"
X. Indeed, since admitting to (and spoliation) this is Plaintiff's second
motion to strike the Answer, in the past seven months. Plaintiff clearly fears that it
cannot win at a fair trial, and now seeks a different method to win this action.
43. Nevertheless, as the Court can see, Defendant has acted in good faith at all
times in an attempt to complete discovery in this action, and finally try this case. The
emails annexed hereto show that itwas Defendant's counsel that repeatedly sought to
schedule the depositions (eight vood faithemails!) and that Defendant's counsel had to
make multiple requests to Plaintiff's counsel to schedule the depositions. Defendant's
counsel also had to make multiple requests for the name of Plaintiff's expert to schedule
the Quickbooks reviews. Clearly, Defendant was acting in good faith at all times.
44. On the other hand, itis clear that Plaintiff was acting in bad faith and
refused to appear anywhere else but the Courthouse, and, worse, informing Defendant
only days before the scheduled deposition. It isobvious what Plaintiff was trying to
accomplish: a limitation of the one day Defendant had to depose Plaintiff, or perhaps
preclude Plaintiff's deposition entirely at Defendant's expense. Plaintiff knew that
"wrongdoing"
Defendant would question Plaintiff on his admitted (see, Ex. X) to prove
that Plaintiff had stolen and committed other acts of wrongdoing. This is obviously the
reason that Plaintiff hoped to limit the time of Defendant's deposition of Plaintiff.
45. It isclear that, faced with admitted wrongdoing, Plaintiff is attempting to
narrative,"
"regain the asserting that Defendant's Answer should by struck for itsfailure
to comply with discovery. However, Defendant's position was necessitated solely by
Plaintiff's bad faith litigation tactics.
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46. This is another motion made by Plaintiff, which is based on false
statements, and, worse, is based on circumstances created by the Plaintiff to justify its
motion to strike the Defendant's answer and demand for other relief. As stated above,
Defendant's ability to properly depose Plaintiff was at risk if one of the two rooms (not
six as Plaintiff falsely claims) was unavailable for Plaintiff's deposition. Moreover,
Defendant offered to have the deposition take place in a convenient location in
Manhattan. Plaintiff had no legitimate or rationale basis for objecting to that offer, which
is why no explanation was provided. Now, Plaintiff comes before this Court with
righteous indignation and demands that this Court punish the Defendant for a situation
Plaintiff engineered. This motion should be denied in its entirety.
Striking the Answer is not appropriate.
47. "The law is settled that an action should, if atall possible, be resolved on
the merits and that the drastic remedy of striking a party's pleading pursuant to CPLR
3126 for failure to comply with a discovery order or request is appropriate only where the
moving party conclusively demonstrates that the nondisclosure was willful, contumacious
faith."
or due to bad Remuneration Planning & Services Corp. v. Bere & Brown. Inc.,
151 A.D.2d 268, 269; 542 N.Y.S.2d 182, 183 (1st Dep't 1989).
penalty."
48. Striking a party's pleading is the "harshest available W&W
Glass. LLC v 1113 York Ave. Realty Co. LLC, 83 A.D.3d 438; 920 N.Y.S.2d 347, 348
1st Dep't 2011). "The drastic remedy of striking a party's pleadings is only justified
where the moving party has clearly shown that its opponent's nondisclosure was willful,
contumacious or due to bad faith. It isnot a sanction to be routinely imposed whenever a
party fails to comply with any item of discovery, without regard for that party's
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substantial compliance efforts or its legitimate objections to the scope of an opponent's
demands."
Commerce & Indus. Ins. Co. v. Lib-Com, Ltd., 266 A.D.2d 142, 145; 699
N.Y.S.2d 16 (1st Dep't 1999).
49. "[T]the penalty of striking an answer for failure to disclose is extreme and
contumacious."
should be levied only where the failure has been willful or Hanson v.
City of New York, 227 A.D.2d 217; 642 N.Y.S.2d 272, 273 (1st Dep't 1996). In the
event of an initialdiscovery dispute, the Court should not strike a party's answer. Id. ("In
the matter at bar, even though the City delayed in complying with discovery demands, the
court abused its discretion by striking the City's answer without according defendant a
second chance to furnish the information ithad allegedly not tumed over, thereby
effectively barring the City from defending the lawsuit on itsmerits.").
50. Here, itis clear that Defendant has vigorously defended this action on the
merits, has always proceeded in good faith, has sought the Court's intervention to resolve
discovery disputes, and has not acted to delay this action. Indeed, the emails armexed
hereto show that itwas Defendant 'scounsel that was attempting to move discovery
forward. Simply stated, there is no bad faith here. Thus, there is no reason to strike the
Answer.
51. Indeed, once itbecame clear that Plaintiff was taking an unreasonable
position on the location of the deposition, Defendant's firstresponse was to notify the
Court to resolve the situation. S_eee, Ex. S. Defendant had hoped that the simple Efiling
of this letter would force Plaintiff to reconsider itsposition, but to no avail. Plaintiff
stood on its unreasonable demand, clearly in an attempt to prejudice Defendant.
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52. In light of Defendant's good faith attempts to schedule the discovery, and
then to avoid the discovery dispute, itis clear that Plaintiff's motion should be denied.
In fact, in a similar case, the Appellate Division, First Department held that the Court
should "direct the scope and manner of deposition, and impose sanctions ifa party failed
obey."
to Catalane v. Plaza 400 Owners Corp., 124 A.D.2d 478, 480, 507 N.Y.S.2d 627,
629 (1st Dep't 1986). Here, should the Court not deem further discovery waived by
Preview
FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------·· -------X BRANDSWAY HOSPITALITY, LLC, a/k/a Index No. 652637/2013 BRANDSWAY HOSPITALITY , INDIEFORK, LLC ATTORNEY Plaintiff, AFFIRMATION IN -against- OPPOSITION DELSHAH CAPITAL LLC Hon. Shieme S. Hagler Defendant. Return Date: 12/2/19 ------------------ ---------------------------------X JONATHAN B. SCHWARTZMAN, an attorney at law duly admitted to practice before the courts of the State of New York affirms the following to be true under the penalties of perjury: 1. I am a member of the firm of Cordova & Schwartzman, LLP, which ("Defendant")1 above- represents the defendant DELSHAH CAPITAL LLC in the entitled action. As such I have personal knowledge of the facts set forth herein as relevant to this motion. 2. I submit this affirmation in opposition to Plaintiff's order to show cause to strike Defendant's Answer and for sanctions, the second such motion made by Plainti ffin months!2 the past seven As will be shown herein by documentary evidence -the emails between counsel and Defendant's letter to the Court -- Plaintiff's motion should be denied as Defendant acted immediately and in good faith to comply with the Court's Order. In fact, Defêñdant's good faith is amply demonstrated by the fact that Defendant I inthe caption the of theindividual Plaintiffand but Plaintiffhas Plaintiffincludes names Defcñdâñts, stipulatedto remove the iñdividuals from the caption. A copy of the Stipula%n isannexed hereto as Exhibit Y. 2 on April 2019. NYSCEF Doc. No. 681, filed 12, 1 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 sent the Court a letter in an attempt to avert this very motion, a copy of which is annexed hereto as Exhibit S. 3. Moreover, striking the defendant's Answer is a harsh remedy and the facts provided below will clearly reveal Defendant acted in good faith at alltimes, and , infact, Defendant will show that ithad to demand Plaintiff produce certain documents eigh_t times and threaten a motion, even though the Court had Ordered the production of those documents. Rather itis Plaintiff who acted in bad faith by seeking to limit Defendant's deposition of Plaintiff without any reason or explanation. 4. Simply stated, this motion is premised on Plaintiff's attempt to prejudice Defendant by limiting the time of Plaintiff s deposition by demanding that the deposition be held in one of only two rooms available at the Courthouse, without the ability to reserve those rooms in advance. 5. Tellingly, Plaintiff's counsel made this demand only days before the scheduled date and without any explanation. Indeed, itmust be noted that in Plaintiff s motion papers, there is no explanation why the deposition needed to be conducted in the Courthouse, when the prior depositions of Plaintiff have all been conducted at the Manhattan office of Plaintiff's counsel! 6. Critically, in my experience in Nassau County Supreme Court, any deposition rooms are only available from 9:30 a.m. and they close at 4:30 p.m. In addition, the Court closes the rooms for lunch from 1:00-2:15. Thus, the depositions are limited in time and are often disrupted. Clearly, with the Court having specifically limited Plaintiff's deposition to one day, Plaintiff was looking to prejudice Defendant by limiting the time and place of the deposition, without giving any reason or explanation. 2 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 "win-win" 7. Obviously, Plaintiff was attempting to engineer a situation: limit the time and location of Plaintiff's deposition to prejudice Defendant, and if Defendant refuses to accept the limitation and not appear, move to strike the Answer. This is a terrible bad faith litigation stunt. The Court should not countenance such bad faith tactics. confirmed" 8. In regard to the motion, initially, Plaintiff claims that I "twice that Defendant was going to depose Plaintiff on November 13, 2019. This is a fabrication. as shown by the emails below. In fact, I specifically warned Plaintiff's counsel that if he continued seeking to limit Plaintiff's deposition, Defendant would not appear and deem discovery waived. 9. Plaintiff also asserts that Defendant has admitted Plaintiff s claim. This is another false statement slyly slipped into Plaintiff s argument as Plaintiff knows that the affidavit is a publically filed document. To the contrary, Defeñdant maiñtains and can prove that Plaintiff was terminated for cause, not the least of which was itstheft and wrongful acts. Indeed, Plaintiff's counsel specifically admitted that Plaintiff committed wrongdoing" wrongdoing, but argued that itwas "not sufficient for purposes of terminating the agreement in issue. A copy of the relevant page from the transcript of the oral argument on February 4, 2019 is annexed hereto as Exhibit X. Defendant specifically states that the termination of Plaintiff was for cause, and does not admit otherwise. 3 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 10. In regard to the underlying facts, on September 23, 2019, the parties appeared before the Court for oral arguments on motion. At that time, the Court directed 3 the following: i. That Plaintiff provide a verified list of the checks Plaintiff claims were forged; ii. that Plaintiff then be deposed for 1 day, but the Court did not set a date certain; iii. that Defendant produce for deposition Michael Shah and James Choung, each to be deposed for 1 day, but the Court did not set dates certain; iv. that Defendant provide Plaintiff's expert with access to the program;4 Quickbooks and v. the Court set a December 31, 2019 deadline for the filing of the Notes of Issue in this case and the companion case pending before the Court, entitled 133 Essex Restaurant, LLC v. Brandsway Hospitality, Index No. 651629/2013. 11. Only three days later, on September 26, 2019, on behalf of Defendant I "forged" requested the verified listof purportedly checks (the "Verified Check List") and a date for Plaintiff's deposition, as per the Court's Order. A copy of said email is annexed hereto as Exhibit A. Plaintiff ignored the request for the Verified Check List, forcing a second email, annexed hereto as Exhibit B. Astonishingly, Plaintiff feigned ignorance, requiring yet another email from me, annexed hereto as Exhibit C. Indeed, I 3 we do not have the oralargürsêñt despitea number of requests to thereporter. Unfortüñâtcly, transcript, 4 of Quickbooks data was provided to Plaintiff. Hard copies the prcvicualy 4 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 had to specifically threaten Court intervention if the Verified Check List was not produced as per the Court. See, Ex. C. 12. The very next day, September 27, 2019, I again demanded the production of the Verified Check List, and I also again asked for oronosed deposition dates. A copy of the email dated September 27, 2019 at 12:00 p.m. is annexed hereto as Exhibit D. Clearly, Defendant was acting in good faith. 13. Astonishingly, Plaintiff's counsel responded by email that he is "very busy" week." and that he "will look at this next A copy of said email is annexed hereto as Exhibit E. In response, I specifically wrote the following: Still no affirmative responses to any of my points. Please understand that the Court has Ordered that Plaintiff be deposed first. We need that date to figure out the rest. Noticeably, the Court did not order that plaintiff provide an EBT date only after the defendant's EBT was scheduled. Do we need to conference with the Court on these issues? This is who this case has dragged on.. A copy of the email dated September 27, 2019 at 12:28 p.m.is annexed hereto as Exhibit F (Emphasis supplied). 14. This email clearly proves that Defendant was acting in accordance with the Court's direction. Plaintiff's counsel did not respond to this email. 15. Accordingly, on October 1, 2019, I sent my fourth email again demanding the production of the Verified Check List, and I also again asked for proposed deposition 5 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 dates. A copy of said email is annexed hereto as Exhibit G. Plaintiff's counsel did not respond to this email. 16. On October 2, 2019, I sent my fifth demand for the production of the Verified Check List, and for proposed deposition dates. A copy of said email is annexed hereto as Exhibit H. 17. Plaintiff's counsel responded to this by stating that he was "in the middle Brooklyn." of pre-trial hearings in He also asked about being given access to the Quickbooks. Within four minutes, I responded that Defendant would provide access to the Quickbooks to Plaintiff's expert, and requested the name of the expert. S_ee, emails dated October 2, 2019 annexed hereto as Exhibit I. 18. Despite my constant requests, Plaintiff had stillrefused to produce the Verified Check List, and stillrefused to provide prop_ose-d_dep_osition dates. Thus, on October 3, 2019, I sent my sixth email demand to counsel. A copy of said email is annexed hereto as Exhibit J. Plaintiffs counsel did not respond to this email. 19. Accordingly, on October 4, 2019, I sent my seventh email, again demanding the production of the Verified Check List, and I also again asked for proposed deposition dates. A copy of said email is annexed hereto as Exhibit K. 20. Plaintiffs counsel responded to this email but did not produce the Verified Check List or provide dates for the depositions. Rather, Plaintiff's counsel stated that the Quickbooks access was the firstdeadline. By email also dated October 4, 2019, I corrected counsel. A copy of said email is annexed hereto as Exhibit L. Plaintiff's counsel did not respond to this email. 6 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 21. Accordingly, on October 7, 2019, I sent my eighth email, again demañding the production of the Verified Check List, and I also again asked for proposed deposition dates. A copy of said email is annexed hereto as Exhibit M. 22. On October 8, 2019-the very last day of the Court's deadline--Plaintiff finally posted the Verified Check List, but failed to provide any dates for Plaintiff's deposition, so, again, I was forced to request dates. A copy of said email and a copy of a second email also dated October 8, 2019 are annexed hereto as Exhibit N. 23. Finally, on October 11, 2019, nearly three weeks since the parties appeared before the Court, Plaintiff finally provided proposed dates, the earliest of which was October 31. A copy of this email is annexed hereto as Exhibit O. 24. In furtherance of the Court's Order, on October 16, 2019, I requested that Plaintiff provide me with the name of the expert to review the Quickbooks. On October 22, 2019, Plaintiff's counsel finally provided the name of the expert. On October 25, 2019, Defendant emailed Plaintiff's expert to arrange for the Quickbooks review. Copies P.5 of three emails are annexed hereto as Exhibit 25. Significantly, despite Plaintiff's claims as to not having the Quickbook data, Plaintiff was provided with hard copies of that data. Nonetheless, once Plaintiff's expert was identified we arranged for direct contact between the Defendant's accountant and Plaintiff's expert for the review. Again, Defendant was acting in accordance with the Court's direction. 26. On October 24, 2019, I proposed dates for the three depositions. On October 25, 2019, the parties confirmed that the deposition of Plaintiff would be 5 The email account addresses of thenon-parties have been redacted. 7 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 conducted on November 13, 2019 and the first Defendant deposition would be conducted on November 19, 2019. 27. In fact, itwas Plaintiff's counsel who requested that the second Defendant's deposition be conducted in December, even though the Court had directed that the depositions be completed by the end of November. In the interest of actually completing discovery in accordance with the Court's Order (and being courteous to opposing counsel), I agreed, and the parties agreed on December 5, 2019. Copies of four emails are annexed hereto as Exhibit Q. 28. Critically, the parties did not agree on a location for Plaintiff's deposition, however the prior depositions of ?|siñtif f have all been conducted at the Mr h::::: office of Plaintiff's counsel. Nonetheless, during the afternoon of Thursday, November 7, 2019, Plaintiff's counsel stated the he would only produce Plaintiff for a deposition at the New York City Supreme Court Courthouse, despite the fact that counsel has an office in Manhattan and that prior depositions had been conducted in that office. 29. I specifically asked Plaintiff for the basis of this demand, and I explained that we can depose Plaintiff at Plaintiff's counsel's Manhattan office, as we had done previously. Further, we have reporting services that provide offices in Maréanan which were convenient for Plaintiff and Plaintiff's counsel. However, Plaintiff's counsel did not respond, and he has never stated any basis for his refusal to produce Plaintiff anywhere other than the Courthouse. 30. As noted, my experience in Nassau County is that due to the Court's scheduling any depositions conducted in the Courthouse are limited in time and are often 8 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 disrupted. Being limited on any further deposition of Plaintiff to one day, Defendant did not want to be limited in the time and place of the deposition. 31. Nonetheless, I personally telephoned the Ex Parte Office in Manhattan to see about deposition rooms, and I was told that there are only two rooms available and that those rooms could not be reserved. Despite counsel's false claim that there are six deposition rooms, on November 21, 2019, I personally confirmed in person at the Ex parte Office that there are only two deposition rooms available. 32. Fearing a situation where we appear at the Courthouse only to discover that there were no rooms available, I told Plaintiff's counsel that there were only two deposition rooms, and that we could hold the deposition at a local court reporting agency. A copy of my email dated November 7, 2019 is annexed hereto as Exhibit R. Plaintiff's counsel refused. 33. In the hope of avoiding this exact motion practice, I sent counsel an email explicitly stating that I would ask the Court to intervene. Counsel ignored me. Accordingly, I filed a letter to the Court in the Electronic Filing System (NYSCEF Doc. No. 790), requesting a teleconference with the Court to address Plaintiff's obstreperousness. To be certain that Plaintiff understood that its demand was unreasonable and that I had asked the Court to intervene, I forwarded the proof of Efiling to counsel. Copies of the letter to the Court and emails are annexed hereto as Exhibit S. 34. Despite these filings, Plaintiff would not budge from itsunreasonable and unexplaiñable position, even after taking multiple depositions at counsel's Manhattan 9 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 office.6 Clearly, Plaintiff wanted nothing more than to limit, or worse to preclude Plaintiff's deposition to Defendant's prejudice. 35. Plaintiff's counsel was fully aware that Defendant's counsel was commuting from Long Island to Manhattan. As there were only two rooms available and those rooms could not be reserved, the two rooms could easily have been booked upon our arrival and the deposition would not have been able to go forward. Defendant's counsel would have been put in the untenable position of having to scramble to find a place to conduct the deposition while the clock was ticking on the one day that Defendant had to depose Plaintiff. It ispatently clear that this was the reason for Plaintiff's recalcitrance and absolute refusal to provide an explanation as to its objection to conduct the deposition at another location in Manhattan. 36. Accordingly, on November 11, 2019, I specifically told counsel that Plaintiff's actions were clearly undertaken to prejudice Defendant and that "[g]iven the unreasonableness of plaintiff's position, I will either have to (1) move the Court for an Order directing plaintiff to appear, or (2) assume that plaintiff is deliberately refusing to discovery." appear as a tactic, and that plaintiff is waiving any further A copy of said email is annexed hereto as Exhibit T. Nonetheless, counsel refused, at which point I it" wrote "So be meaning that Defendant would either move or deem further discovery waived due to Plaintiff's bad faith litigation tactic. Defendant elected to deem further discovery waived. 6 Court" Any claim thatPlaintiff"wanted to be near the is beliedby counsel's affinnation wherein he states thathe would have agreed to hold the depositionin Armonk. 10 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 37. Despite any claim to the contrary, Plaintiff's counsel specifically acknowledged Defendant's position, writing on November 11, 2019 "Why did you have easy." another suggestion? You refused any offer to make it 38. In response, I specifically asked counsel for the basis of his unreasonable position: It's unreasonable. You need to be in Manhattan regardless. What is your objection? A copy of said email is annexed hereto as Exhibit U. 39. Finally, in an attempt to avert this very motion, the night before the scheduled deposition I sent a final email: I specifically asked you what your objection was to conducting the EBT at a location in Manhattan convenient to both you and your client. You failed to provide any explanation or, indeed, even a response, instead choosing to stand on your unreasonable demañd. email.7 Accordingly, I refer you to my prior A copy of said email is annexed hereto as Exhibit V. 40. Plaintiff's counsel refused to address this email. Clearly, Plaintiff's counsel knew that Defendant would not accept its unreasonable attempt to limit the deposition of Plaintiff to Defendant's prejudice. Accordingly, Defendant elected to deem discovery waived, and itcancelled the review of the Quickbooks that had been scheduled for the same day. This action was taken solely as a result of Plaintiff's bad faith attempt to prejudice Defendant without an explanation, and, indeed, this is why the review was cancelled at 6:15 a.m. on the morning scheduled for the review. Had Plaintiff not 7 The email that Defcñdañt would deem furtherdiscovery waived ifPlaintiffcontinued to be obstreperous, not thatDefcadañt had agreed to thelocation. Counsel's claim to thecontrary isdisiñgaimia 11 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 attempted to prejudice Defendant, both the deposition and the review would have proceeded. 41. On the morning November 13, 2019, Plaintiff's counsel -knowing full well that Defendant had deemed further discovery waived and was not appearing sent an email that he intended to produce Plaintiff, clearly in the hope of bolstering the instant motion. In response, I simply reiterated Plaintiff's unreasonable and prejudicial position: You made the unreasonable demand to hold the deposition of plaintiff solely at the Courthouse, even though I informed you that there were only two EBT rooms available, and that the rooms could not be reserved. I informed you that itwas unreasonable to hope that we would be able to obtain a room and that if we did not, we would have travelled to Manhattan for no reason. We offered to conduct the deposition in your office in Manhattan, or in a Court reporter's office near the Court. Nonetheless, you refused. I asked you to set forth the basis of your refusal to conduct the deposition in your office, yet you have failed to articulate any reason at all,and ignored my requests for the basis of your refusal. Indeed, even though I asked the Court by letterfor a conference on your unreasonable demand, your continued to refuse to produce plaintiff at any other location. Accordingly, as I set forth in my email lastweek, due to your unreasonable demand and clear attempt to limit the deposition of Plaintiff, to Defendant's detriment and prejudice, Defendant has deemed Plaintiff to have waived all further discovery. Please filethe Note of Issue A copy of said email is annexed hereto Exhibit W 42. Plaintiff now brings this motion to strike Defendant's Answer and for sanctions. Tellingly, Plaintiff does not seek an order to compel the discovery; effectively "giving away the game": Plaintiff engineered this entire situation in the hope of a "Hail 12 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 Mary" "wrongdoing." striking of the Answer in the face of Plaintiff's admitted e, Ex. "wrongdoing" X. Indeed, since admitting to (and spoliation) this is Plaintiff's second motion to strike the Answer, in the past seven months. Plaintiff clearly fears that it cannot win at a fair trial, and now seeks a different method to win this action. 43. Nevertheless, as the Court can see, Defendant has acted in good faith at all times in an attempt to complete discovery in this action, and finally try this case. The emails annexed hereto show that itwas Defendant's counsel that repeatedly sought to schedule the depositions (eight vood faithemails!) and that Defendant's counsel had to make multiple requests to Plaintiff's counsel to schedule the depositions. Defendant's counsel also had to make multiple requests for the name of Plaintiff's expert to schedule the Quickbooks reviews. Clearly, Defendant was acting in good faith at all times. 44. On the other hand, itis clear that Plaintiff was acting in bad faith and refused to appear anywhere else but the Courthouse, and, worse, informing Defendant only days before the scheduled deposition. It isobvious what Plaintiff was trying to accomplish: a limitation of the one day Defendant had to depose Plaintiff, or perhaps preclude Plaintiff's deposition entirely at Defendant's expense. Plaintiff knew that "wrongdoing" Defendant would question Plaintiff on his admitted (see, Ex. X) to prove that Plaintiff had stolen and committed other acts of wrongdoing. This is obviously the reason that Plaintiff hoped to limit the time of Defendant's deposition of Plaintiff. 45. It isclear that, faced with admitted wrongdoing, Plaintiff is attempting to narrative," "regain the asserting that Defendant's Answer should by struck for itsfailure to comply with discovery. However, Defendant's position was necessitated solely by Plaintiff's bad faith litigation tactics. 13 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 46. This is another motion made by Plaintiff, which is based on false statements, and, worse, is based on circumstances created by the Plaintiff to justify its motion to strike the Defendant's answer and demand for other relief. As stated above, Defendant's ability to properly depose Plaintiff was at risk if one of the two rooms (not six as Plaintiff falsely claims) was unavailable for Plaintiff's deposition. Moreover, Defendant offered to have the deposition take place in a convenient location in Manhattan. Plaintiff had no legitimate or rationale basis for objecting to that offer, which is why no explanation was provided. Now, Plaintiff comes before this Court with righteous indignation and demands that this Court punish the Defendant for a situation Plaintiff engineered. This motion should be denied in its entirety. Striking the Answer is not appropriate. 47. "The law is settled that an action should, if atall possible, be resolved on the merits and that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order or request is appropriate only where the moving party conclusively demonstrates that the nondisclosure was willful, contumacious faith." or due to bad Remuneration Planning & Services Corp. v. Bere & Brown. Inc., 151 A.D.2d 268, 269; 542 N.Y.S.2d 182, 183 (1st Dep't 1989). penalty." 48. Striking a party's pleading is the "harshest available W&W Glass. LLC v 1113 York Ave. Realty Co. LLC, 83 A.D.3d 438; 920 N.Y.S.2d 347, 348 1st Dep't 2011). "The drastic remedy of striking a party's pleadings is only justified where the moving party has clearly shown that its opponent's nondisclosure was willful, contumacious or due to bad faith. It isnot a sanction to be routinely imposed whenever a party fails to comply with any item of discovery, without regard for that party's 14 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 substantial compliance efforts or its legitimate objections to the scope of an opponent's demands." Commerce & Indus. Ins. Co. v. Lib-Com, Ltd., 266 A.D.2d 142, 145; 699 N.Y.S.2d 16 (1st Dep't 1999). 49. "[T]the penalty of striking an answer for failure to disclose is extreme and contumacious." should be levied only where the failure has been willful or Hanson v. City of New York, 227 A.D.2d 217; 642 N.Y.S.2d 272, 273 (1st Dep't 1996). In the event of an initialdiscovery dispute, the Court should not strike a party's answer. Id. ("In the matter at bar, even though the City delayed in complying with discovery demands, the court abused its discretion by striking the City's answer without according defendant a second chance to furnish the information ithad allegedly not tumed over, thereby effectively barring the City from defending the lawsuit on itsmerits."). 50. Here, itis clear that Defendant has vigorously defended this action on the merits, has always proceeded in good faith, has sought the Court's intervention to resolve discovery disputes, and has not acted to delay this action. Indeed, the emails armexed hereto show that itwas Defendant 'scounsel that was attempting to move discovery forward. Simply stated, there is no bad faith here. Thus, there is no reason to strike the Answer. 51. Indeed, once itbecame clear that Plaintiff was taking an unreasonable position on the location of the deposition, Defendant's firstresponse was to notify the Court to resolve the situation. S_eee, Ex. S. Defendant had hoped that the simple Efiling of this letter would force Plaintiff to reconsider itsposition, but to no avail. Plaintiff stood on its unreasonable demand, clearly in an attempt to prejudice Defendant. 15 of 17 FILED: NEW YORK COUNTY CLERK 11/26/2019 06:08 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 818 RECEIVED NYSCEF: 11/26/2019 52. In light of Defendant's good faith attempts to schedule the discovery, and then to avoid the discovery dispute, itis clear that Plaintiff's motion should be denied. In fact, in a similar case, the Appellate Division, First Department held that the Court should "direct the scope and manner of deposition, and impose sanctions ifa party failed obey." to Catalane v. Plaza 400 Owners Corp., 124 A.D.2d 478, 480, 507 N.Y.S.2d 627, 629 (1st Dep't 1986). Here, should the Court not deem further discovery waived by