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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
DVK REALTY LLC,
Index No.158676/19
Plaintiff,
RESPONSES AND OBJECTIONS
-against- TO DEFENDANT'S NOTICE FOR
DISCOVERY AND INSPECTION
CREMB REALTY INC.
Defendant.
PLEASE TAKE NOTICE, that Plaintiff, DVK Realty LLC ("Plaintiff"), by
its attorneys, Rivkin Radler LLP, as and for its Responses and Objections to Defendant's
CREMB Realty, Inc. ("Defendant") Notice for Discovery and Inspection, dated January 16,
2020 (the "Demand"), hereby responds and objects as follows:
GENERAL OBJECTIONS_AND_RESERYATIONS OF RIGHTS
To avoid undue and unnecessary repetition, Plaintiff makes the following
"Requests"
general and continuing objections to the requests in the Demand (the or the
"Request", as the context so requires). All general and continuing objections apply to the
responses to each item, and specific references to these objections in the particular response
is intended for emphasis only. Failure to list a general and continuing objection is not
intended, nor should it be construed, as a waiver of any kind.
1. Plaintiff objects to the Request to the extent that it seeks, or can be
construed to the production of documents: subject to attorney-client work-
seek, (i) privilege,
product doctrine, or any other applicable privilege; (ii) containing information protected from
discovery because it reflects the impressions, conclusions, opinions or legal research or theories
of Plaintiff's attorneys; (iii)that were prepared in anticipation of litigation or (iv) that is otherwise
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privileged or protected from disclosure under applicable laws or rules. Plaintiff will not supply
such documents. To the extent that there is any inadvertent disclosure of privileged documents in
or among the responses, itshall not constitute any waiver of these privileges, and all of such rights
and remedies are but not limited to the right to assert attorney-
expressly reserved, including, any
client privilege.
2. Plaintiff objects to the Request to the extent that it isinconsistent with, or
seeks to impose obligations upon Plaintiff beyond those imposed by the CPLR and/or other
applicable provisions of law.
3. Plaintiff objects to the Request to the extent that itseeks documents, which
are neither relevant to the issues of law and fact in this action, nor reasonably calculated to lead to
the discovery of admissible evidence. Any response herein is not intended, nor should it be
construed as, an admission regarding the relevance, materiality or admissibility of the Requested
document. Plaintiff's production of documents in response to the Request is not intended, nor
should it be construed as, an acceptance of, or agreement with, any of the characterizations or
descriptions contained in the Request.
4. Plaintiff objects to the Request to the extent that it seeks the production of
documents containing proprietary and/or confidential information, which are neither relevant to
the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of
admissible evidence.
5. Plaintiff objects to the Request to the extent that itseeks to require Plaintiff
to provide documents on behalf of, or within the knowledge or control of, an entity or individual
over whom Plaintiff has no control.
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6. Plaintiff objects to the Request to the extent that it would require the
production of documents, which are either generated by Defendant, or otherwise in Defendant's
custody, possession and/or control. It would be unduly burdensome to require Plaintiff to produce
such documents, and accordingly, Plaintiff will not produce such documents, but, hereby reserves
the right to use and/or rely on any document heretofore or hereafter produced by Defendant.
7. Plaintiff objects to the Request to the extent that itseeks, or can be construed
to seek, the production of documents containing expert work-product and/or the production of
documents which are otherwise protected from disclosure.
8. Plaintiff objects to the Request to the extent that itrequests documents
concerning information already known to Defendant, or information peculiarly within Defendant's
sphere of knowledge.
9. Plaintiff objects to the Request as unduly burdensome to the extent that it
seeks to require the production of voluminous documents without specifying with reasonable
particularity the documents requested.
10. Plaintiff objects to the Request to the extent that it seeks the production of
documents, which are available as public records.
11. Plaintiff objects to the Request to the extent that it seeks the production of
documents from an unduly broad period of time.
12. Plaintiff objects to the Request to the extent that it requests the production
of documents in a vague and ambiguous manner and/or with insufficient specificity.
13. Plaintiff reserves the right to challenge the competency, relevancy,
materiality and admissibility of, or to object on any grounds to the use of any of the documents
produced during pre-trial disclosure and/or at the trial of this or any other action or proceeding.
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14. Plaintiff reserves the right to rely on any facts, documents and/or other
evidence that may develop, or come to Plaintiff's attention, during the course of this action.
Plaintiff's responses, as set forth herein, are based upon information and documents presently
known to or in the possession of Plaintiff and/or its attorneys. Plaintiff's responses, as set forth
herein, are without prejudice to, or waiver of, its right to assert additional objections and/or to
supplement and/or otherwise modify its responses at any time prior to trial should Plaintiff
discover additional information, documents, or grounds for objection during the course of this
action. Plaintiff reserves the right to supplement, modify or amend these responses at any time up
to and including the date of the trial.Additional responsive documents, ifany, will be produced
on a rolling basis.
15. Neither the indication that documents will be produced, nor an objection to
a particular document Request, is intended to indicate that any responsive documents necessarily
exists and/or will otherwise be produced.
16. Any reference to bates stamp numbers is provided in good faith and for
convenience only, and the omission to identify documents produced herewith in response to a
particular Request as responsive to other Requests shall not be construed against Plaintiff in
anyway.
17. The statements and/or responses, as noted below, "documents responsive
to this Request", includes, and/or otherwise refers to, documents that are responsive to all,or any
portion of, the particular Request.
RESERVATION OF RIGHTS
Plaintiff expressly reserves the right to make a motion to vacate the Demand on the
grounds that the Demand, in whole or in part, (a) seeks documents, which are palpably irrelevant
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to the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of
admissible evidence, (b) a substantial amount of the Requests in the Demand are duplicative of
other Requests in the Demand (c) constitutes an impermissible fishing expedition for discovery
and (d) is intended, in whole or in part, to harass, annoy or otherwise cause inconvenience to
Plaintiff.
OBJECTIONS AND RESPONSES
Request No. 1
"1"
Any and all documents relating to the allegations contained in paragraph of Plaintiff's
Complaint, specifying that Defendants refused to recognize Plaintiff's long-term commercial lease
expiring in 2033 in a transparent and ill-advised scheme to extract an unwarranted rent increase
Landlords' "excuse"
from the Tenant and that wholly pre-textual for recusing to recognize the
"assigned"
Tenant's lease is that Tenant's predecessor, a related entity, improperly the lease to
Tenant more than twenty (20) years ago.
Response to Request No. 1
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that it seeks the production of voluminous documents, without specifying with reasonable
particularity the document requested. Plaintiff further objects to this Request to the extent that it
seeks to impose obligations upon Plaintiff beyond those required by applicable law, in that, inter
alia, itseeks to require Plaintiff to produce documents, which call for a legal conclusion. Plaintiff
further objects to the Request to the extent that itrequests documents already within Defendant's
possession, custody and/or control and/or concerns information already known to Defendant, or
information peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to this
Request to the extent that itwould require the production of documents, which are either generated
by Defendant or otherwise in Defendant's custody, possession and/or control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this request, if any, will hereinafter be provided.
Reauest No. 2
"2"
Any and all documents relating to the allegations contained in paragraph of Plaintiff's
complaint, specifying that the documentary evidence, however, unequivocally demonstrates that:
(a) Tenant's predecessor converted to the Tenant entity as part of an overall corporate restructuring
in 1997; (b) In 1998, Tenant's predecessor expressly informed Landlord's predecessor in writing
that Plaintiff would be the tenant under the lease as a result of such restructuring; (c) Landlord did
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not object to Plaintiff being the tenant under the lease for more than twenty (20) years; (d) Landlord
continued to accept rent from Tenant more than twenty (20) years without objection; and (e)
Landlord corresponded with Tenant multiple times over the past twenty (20) years.
Response to Request No. 2
Subject to the general objections stated above, Plaintiff objects to the Request to the extent that it
seeks the production of documents, which are already within Defendant's possession, custody
and/or control. Plaintiff further objects to this Request as unduly burdensome to the extent that it
seeks to require the production of voluminous documents, without specifying with reasonable
particularity the documents requested. Plaintiff further objects to the Request in that it seeks
documents concerning information already known to Defendant, or information peculiarly within
Defendant's sphere of knowledge. Plaintiff further objects to this Request to the extent that it
would require the production of documents, which are either generated by Defendant or otherwise
in Defendant's custody, possession and/or control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request will hereinafter be provided.
Request No. 3
"3"
Any and all documents relating to the allegation contained in paragraph of Plaintiff's
Complaint, specifying that notwithstanding that Landlord has expressly recognized Plaintiff as the
tenant under the lease for more than twenty (20) years, Landlord is now attempting to disavow
itself of the long-term commercial lease in an attempt to unilaterally increase Tenant's rent.
Response to Request No. 3
Subject to the general objections stated above, Plaintiff objects to this Request to the extent that it
seeks to require the production of documents, which are either generated by Defendant, or
otherwise in Defendant's custody, possession and/or control. Plaintiff further objects to this
Request to the extent that it requests documents concerning information already known to
Defendant or information peculiarly within Defendant's sphere of knowledge.
Subject to the foregoing objections, in addition to the general objections set forth above,
documents responsive to this Request, if any, will hereinafter be provided.
Re_quest No. 4
"4"
"Any and all documents relating to the allegations contained in paragraph of Plaintiff's
Complaint, specifying that since Landlord has refused to recognize Plaintiff as the tenant under
the Lease, Tenant respectfully requests that this Court issue an order declaring that: (a) Plaintiff is
the tenant under a valid and enforceable lease with Landlord and (b) Plaintiff has duly exercised
itsoptions under the Lease extending the expiration date to December 31, 2033.
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Resnonse to Request No. 4
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
itis beyond the proper scope of a discovery Request, and/or otherwise seeks to impose obligations
upon Plaintiff beyond those prescribed by the CPLR and/or other applicable provisions of law.
Accordingly, no such documents will be produced in response to this Request.
Request No. 5
"5"
Any and all documents relating to the allegations contained in paragraph of Plaintiff's
Complaint, specifying that Plaintiff is a domestic liability company duly authorized to conduct
business in the State of New York, with an address located at 1100 Franklin Avenue, Suite 103,
Garden City, New York 1530.
Resnonse to Reauest No. 5
In addition to the general objections stated above, Plaintiff objects to this Request on the grounds
that itseeks documents, which are available as public records, and which are readily available to
Defendant by merely accessing the New York State Department of Corporations website.
Accordingly, no documents will be produced in response to this Request.
Request No. 6
Any and all documents, including correspondence relating to the formation of and restricting of
any and all of the following: DVK Realty, Inc., DVK Realty LLC and/or DVK Realty of New
York LTD, including the formation, change of entity or dissolution.
Response to Request No. 6
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that it seeks the production of voluminous documents without specifying with reasonable
particularity the documents requested. Plaintiff further objects to this Request in that documents
pertaining to DVK Realty of New York LTD. are neither relevant to the issues of law and fact in
this action, nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff
further objects to the Request to the extent that itrequests the production of documents in a vague
or ambiguous manner and/or with insufficient specificity. Plaintiff further objects to this Request
to the extent that itseeks documents, which are available as public records.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Reguest No. 7
"7"
Any and all documents relating to the allegations contained in paragraph of Plaintiff's
Complaint, specifying that Plaintiff's predecessor, D.V.K. Realty, Inc. ("Tenant Predecessor"), as
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tenant, and James Frontero ("Landlord Predecessor"), as landlord, entered into a written net lease
agreement dated September 7, 1977 for the commercial premises located at 245 Pine Hollow Road,
Oyster Bay, New York 11771.
Response to Request No. 7
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that itseeks documents, which are already within Defendant's possession, custody and/or control,
and/or concerns information, which is already known to Defendant.
Subject to the general objections, in addition to the objections stated above, the Original Lease, as
such term is defined in the Demand, will hereinafter be provided, notwithstanding that such
document is already within Defendant's possession custody and/or control.
Request No. 8
"8"
Any and all documents relating to the allegations contained in paragraph of Plaintiff's
Complaint, specifying that Tenant Predecessor and Landlord predecessor entered into an
Amendment to Lease dated December 19, 1987.
Response to Request No. 8
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that itseeks documents, which are already within Defendant's possession, custody and/or control,
and/or concerns information, which is already known to Defendant.
Subject to the general objections, in addition to the objections stated above, the First Amendment,
as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such
document is already within Defendant's possession custody and/or control.
Reauest No. 9
"9" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Landlord Predecessor and Tenant Predecessor entered into a Second
Amendment to Lease dated January 17, 1989 (the "Second Amendment").
Resnonse to Reauest No. 9
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that itseeks documents, which are already within Defendant's possession, custody and/or control,
and/or concerns information, which is already known to Defendant.
Subject to the general objections, in addition to the objections stated above, the Second
Amendment, as such term is defined in the Demand, will hereinafter be provided, notwithstanding
that such document is already within Defendant's possession custody and/or control.
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Reauest No. 10
"10" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of the
Complaint, specifically, that Landlord Predecessor and Tenant Predecessor entered into a Third
Amendment to Lease dated February 28, 1989 (the "Third Amendment"; together with the
Original Lease, First Amendment, and Second Amendment, the "Lease")
Resnonse to Request No. 10
In addition to the general objections set forth above, Plaintiff objects to this Request to the extent
that itseeks documents, which are already within Defendant's possession, custody and/or control,
and/or concerns information, which is already known to Defendant.
Subject to the general objections, in addition to the objections stated above, the Third Amendment,
as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such
document is already within Defendant's possession custody and/or control.
Reguest No. 11
"11" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that pursuant to paragraph 2 of the Original Lease, as amended by paragraph
2 of the second Amendment, the term of the Lease was to expire on December 31, 2008, subject,
however, to Tenant's Predecessor's exclusive option to extend the term of the Lease for five (5)
additional periods of five (5) years each.
Resnonse to Request No. 11
In addition to the general objections stated above, Plaintiff objects to this Request in that itis
beyond the proper scope of a discovery demand and/or otherwise seeks to impose obligations upon
Plaintiff beyond those prescribed by the CPLR and/or other applicable provisions of law, in that,
itseeks the production of documents which call for a legal conclusion. Plaintiff further objects to
this Request to the extent that it seeks the production of documents which are already with
Defendant's possession, custody and/or control. Plaintiff further objects to this Request to the
extent that itseeks the production of documents concerning information, which is already known
to Defendant, or information peculiarly within Defendant's sphere of knowledge.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 12
"12" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that in or around 1997, Tenant Predecessor converted the Tenant
Predecessor entity from a corporation to the Plaintiff limited liability company as part of an overall
restructuring the ("Conversion").
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Response to Request No. 12
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that it seeks documents concerning information, which is already known to Defendant or
information peculiarly with Defendant's sphere of knowledge.
Subject to the foregoing objection, in addition to the general objection stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 13
"13" Plaintiff'
Any and all documents relating to the allegations contained in paragraph of
Complaint specifying that Landlord Predecessor and/or itsagents were notified, in writing, of the
Conversion as early as 1998.
Resnonse to Reauest No. 13
Subject to the general objections stated above, documents responsive to this Request, if any, will
hereinafter be provided.
Re_quest No. 14
"14" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Landlord predecessor never objected to the Conversion.
Resnonse to Request No. 14
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that itcalls for a legal conclusion, and therefore, is beyond the proper scope of a discovery demand.
Plaintiff further objects to this Request to the extent that it seeks to require Plaintiff to provide
documents on the behalf of, or within the knowledge or control of, an entity or individual over
whom Plaintiff has no control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 15
"15" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that following the Conversion, Landlord Predecessor continued to accept
rent every month from the Plaintiff without objection.
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Response to Reauest No. 15
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that itseeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or
control of, an entity or individual over whom Plaintiff has no control.
Subject to the foregoing objection, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 16
"16" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Landlord Predecessor sent correspondence to Plaintiff concerning the
Lease following the Conversion.
Response to Reauest No. 16
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that it seeks the production of voluminous documents without specifying with reasonable
particularity the documents requested. Plaintiff further objects to this Request to the extent that it
seeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or control
of, an entity or individual over whom Plaintiff has no control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this request, if any, will hereinafter be provided.
Reauest No. 17
"17" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that on or about December 4, 2000, title to the Premises was conveyed to
Defendant.
Response to Request No. 17
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that itseeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or
control of, an entity or individual over whom Plaintiff has no control. Plaintiff further objects to
this Request to the extent that it requests documents concerning information already known to
Defendant, or information peculiarly within Defendant's sphere of knowledge. Plaintiff further
objects to the Request to the extent that itwould require the production of documents, which are
either generated by Defendant, or otherwise in Defendant's custody, possession and/or control. It
would be unduly burdensome to require Plaintiff to produce such documents, and accordingly,
Plaintiff will not produce such documents, but, hereby reserves the right to use and/or rely on any
document heretofore or hereafter produced by Defendant.
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Ih quest No. 18
"19" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Defendant was fully aware that Plaintiff was the tenant at the time it
was conveyed the Premises.
Response to Request No. 18
In addition to the general objections stated above, Plaintiff objects to this Request as being beyond
the proper scope of a discovery demand in that, inter alia, itcalls for legal conclusions. Plaintiff
further objects to this Request to the extent that it requests documents concerning information
already known to Defendant or information which is peculiarly within Defendant's sphere of
knowledge. Plaintiff further objects to this Request to the extent that itwould require Plaintiff to
provide documents on behalf of,or within the knowledge or control of,an entity or individual over
whom Plaintiff has no control. Plaintiff further objects to this Request to the extent that itwould
require the production of documents, which are either generated by Defendant, or otherwise in
Defendant's possession, custody and/or control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 19
"19" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Defendant never objected to Plaintiff as the tenant under the Lease.
Resnonse to Reauest No. 19
In addition to the general objections stated above, Plaintiff objects to this Request as being beyond
the proper scope of a discovery demand in that, inter alia, itcalls for legal conclusions. Plaintiff
further objects to this Request to the extent that it requests documents concerning information
already known to Defendant or information which is peculiarly within Defendant's sphere of
knowledge. Plaintiff further objects to this Request to the extent that itwould require Plaintiff to
provide documents on behalf of, or within the knowledge or control of, an entity or individual over
whom Plaintiff has no control.
Subject to the foregoing objections, in addition to the general objections stated above, documents
responsive to this Request, if any, will hereinafter be provided.
Request No. 20
"20" Plaintiffs'
Any and all documents relating to the allegations contained in paragraph of
Complaint, specifying that Defendant continued to accept rent every month from the Plaintiff for
the past nineteen (19) years.
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Resnonse to Reauest No. 20
In addition to the general objections stated above, Plaintiff objects to this Request to the extent
that it requests the production of documents, which are already within Defendant's possession,
custody and/or control. Plaintiff further objects to this Request to the extent that it requests the
production of documents concerning information which is already known to Defendant, or
information peculiarly within Defendant's sphere of knowledge.
Subject to the foregoing
Preview
FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU DVK REALTY LLC, Index No.158676/19 Plaintiff, RESPONSES AND OBJECTIONS -against- TO DEFENDANT'S NOTICE FOR DISCOVERY AND INSPECTION CREMB REALTY INC. Defendant. PLEASE TAKE NOTICE, that Plaintiff, DVK Realty LLC ("Plaintiff"), by its attorneys, Rivkin Radler LLP, as and for its Responses and Objections to Defendant's CREMB Realty, Inc. ("Defendant") Notice for Discovery and Inspection, dated January 16, 2020 (the "Demand"), hereby responds and objects as follows: GENERAL OBJECTIONS_AND_RESERYATIONS OF RIGHTS To avoid undue and unnecessary repetition, Plaintiff makes the following "Requests" general and continuing objections to the requests in the Demand (the or the "Request", as the context so requires). All general and continuing objections apply to the responses to each item, and specific references to these objections in the particular response is intended for emphasis only. Failure to list a general and continuing objection is not intended, nor should it be construed, as a waiver of any kind. 1. Plaintiff objects to the Request to the extent that it seeks, or can be construed to the production of documents: subject to attorney-client work- seek, (i) privilege, product doctrine, or any other applicable privilege; (ii) containing information protected from discovery because it reflects the impressions, conclusions, opinions or legal research or theories of Plaintiff's attorneys; (iii)that were prepared in anticipation of litigation or (iv) that is otherwise 1 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 privileged or protected from disclosure under applicable laws or rules. Plaintiff will not supply such documents. To the extent that there is any inadvertent disclosure of privileged documents in or among the responses, itshall not constitute any waiver of these privileges, and all of such rights and remedies are but not limited to the right to assert attorney- expressly reserved, including, any client privilege. 2. Plaintiff objects to the Request to the extent that it isinconsistent with, or seeks to impose obligations upon Plaintiff beyond those imposed by the CPLR and/or other applicable provisions of law. 3. Plaintiff objects to the Request to the extent that itseeks documents, which are neither relevant to the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of admissible evidence. Any response herein is not intended, nor should it be construed as, an admission regarding the relevance, materiality or admissibility of the Requested document. Plaintiff's production of documents in response to the Request is not intended, nor should it be construed as, an acceptance of, or agreement with, any of the characterizations or descriptions contained in the Request. 4. Plaintiff objects to the Request to the extent that it seeks the production of documents containing proprietary and/or confidential information, which are neither relevant to the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of admissible evidence. 5. Plaintiff objects to the Request to the extent that itseeks to require Plaintiff to provide documents on behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. -2- 2 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 6. Plaintiff objects to the Request to the extent that it would require the production of documents, which are either generated by Defendant, or otherwise in Defendant's custody, possession and/or control. It would be unduly burdensome to require Plaintiff to produce such documents, and accordingly, Plaintiff will not produce such documents, but, hereby reserves the right to use and/or rely on any document heretofore or hereafter produced by Defendant. 7. Plaintiff objects to the Request to the extent that itseeks, or can be construed to seek, the production of documents containing expert work-product and/or the production of documents which are otherwise protected from disclosure. 8. Plaintiff objects to the Request to the extent that itrequests documents concerning information already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. 9. Plaintiff objects to the Request as unduly burdensome to the extent that it seeks to require the production of voluminous documents without specifying with reasonable particularity the documents requested. 10. Plaintiff objects to the Request to the extent that it seeks the production of documents, which are available as public records. 11. Plaintiff objects to the Request to the extent that it seeks the production of documents from an unduly broad period of time. 12. Plaintiff objects to the Request to the extent that it requests the production of documents in a vague and ambiguous manner and/or with insufficient specificity. 13. Plaintiff reserves the right to challenge the competency, relevancy, materiality and admissibility of, or to object on any grounds to the use of any of the documents produced during pre-trial disclosure and/or at the trial of this or any other action or proceeding. -3- 3 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 14. Plaintiff reserves the right to rely on any facts, documents and/or other evidence that may develop, or come to Plaintiff's attention, during the course of this action. Plaintiff's responses, as set forth herein, are based upon information and documents presently known to or in the possession of Plaintiff and/or its attorneys. Plaintiff's responses, as set forth herein, are without prejudice to, or waiver of, its right to assert additional objections and/or to supplement and/or otherwise modify its responses at any time prior to trial should Plaintiff discover additional information, documents, or grounds for objection during the course of this action. Plaintiff reserves the right to supplement, modify or amend these responses at any time up to and including the date of the trial.Additional responsive documents, ifany, will be produced on a rolling basis. 15. Neither the indication that documents will be produced, nor an objection to a particular document Request, is intended to indicate that any responsive documents necessarily exists and/or will otherwise be produced. 16. Any reference to bates stamp numbers is provided in good faith and for convenience only, and the omission to identify documents produced herewith in response to a particular Request as responsive to other Requests shall not be construed against Plaintiff in anyway. 17. The statements and/or responses, as noted below, "documents responsive to this Request", includes, and/or otherwise refers to, documents that are responsive to all,or any portion of, the particular Request. RESERVATION OF RIGHTS Plaintiff expressly reserves the right to make a motion to vacate the Demand on the grounds that the Demand, in whole or in part, (a) seeks documents, which are palpably irrelevant -4- 4 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 to the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of admissible evidence, (b) a substantial amount of the Requests in the Demand are duplicative of other Requests in the Demand (c) constitutes an impermissible fishing expedition for discovery and (d) is intended, in whole or in part, to harass, annoy or otherwise cause inconvenience to Plaintiff. OBJECTIONS AND RESPONSES Request No. 1 "1" Any and all documents relating to the allegations contained in paragraph of Plaintiff's Complaint, specifying that Defendants refused to recognize Plaintiff's long-term commercial lease expiring in 2033 in a transparent and ill-advised scheme to extract an unwarranted rent increase Landlords' "excuse" from the Tenant and that wholly pre-textual for recusing to recognize the "assigned" Tenant's lease is that Tenant's predecessor, a related entity, improperly the lease to Tenant more than twenty (20) years ago. Response to Request No. 1 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that it seeks the production of voluminous documents, without specifying with reasonable particularity the document requested. Plaintiff further objects to this Request to the extent that it seeks to impose obligations upon Plaintiff beyond those required by applicable law, in that, inter alia, itseeks to require Plaintiff to produce documents, which call for a legal conclusion. Plaintiff further objects to the Request to the extent that itrequests documents already within Defendant's possession, custody and/or control and/or concerns information already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to this Request to the extent that itwould require the production of documents, which are either generated by Defendant or otherwise in Defendant's custody, possession and/or control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this request, if any, will hereinafter be provided. Reauest No. 2 "2" Any and all documents relating to the allegations contained in paragraph of Plaintiff's complaint, specifying that the documentary evidence, however, unequivocally demonstrates that: (a) Tenant's predecessor converted to the Tenant entity as part of an overall corporate restructuring in 1997; (b) In 1998, Tenant's predecessor expressly informed Landlord's predecessor in writing that Plaintiff would be the tenant under the lease as a result of such restructuring; (c) Landlord did -5- 5 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 not object to Plaintiff being the tenant under the lease for more than twenty (20) years; (d) Landlord continued to accept rent from Tenant more than twenty (20) years without objection; and (e) Landlord corresponded with Tenant multiple times over the past twenty (20) years. Response to Request No. 2 Subject to the general objections stated above, Plaintiff objects to the Request to the extent that it seeks the production of documents, which are already within Defendant's possession, custody and/or control. Plaintiff further objects to this Request as unduly burdensome to the extent that it seeks to require the production of voluminous documents, without specifying with reasonable particularity the documents requested. Plaintiff further objects to the Request in that it seeks documents concerning information already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to this Request to the extent that it would require the production of documents, which are either generated by Defendant or otherwise in Defendant's custody, possession and/or control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request will hereinafter be provided. Request No. 3 "3" Any and all documents relating to the allegation contained in paragraph of Plaintiff's Complaint, specifying that notwithstanding that Landlord has expressly recognized Plaintiff as the tenant under the lease for more than twenty (20) years, Landlord is now attempting to disavow itself of the long-term commercial lease in an attempt to unilaterally increase Tenant's rent. Response to Request No. 3 Subject to the general objections stated above, Plaintiff objects to this Request to the extent that it seeks to require the production of documents, which are either generated by Defendant, or otherwise in Defendant's custody, possession and/or control. Plaintiff further objects to this Request to the extent that it requests documents concerning information already known to Defendant or information peculiarly within Defendant's sphere of knowledge. Subject to the foregoing objections, in addition to the general objections set forth above, documents responsive to this Request, if any, will hereinafter be provided. Re_quest No. 4 "4" "Any and all documents relating to the allegations contained in paragraph of Plaintiff's Complaint, specifying that since Landlord has refused to recognize Plaintiff as the tenant under the Lease, Tenant respectfully requests that this Court issue an order declaring that: (a) Plaintiff is the tenant under a valid and enforceable lease with Landlord and (b) Plaintiff has duly exercised itsoptions under the Lease extending the expiration date to December 31, 2033. -6- 6 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Resnonse to Request No. 4 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent itis beyond the proper scope of a discovery Request, and/or otherwise seeks to impose obligations upon Plaintiff beyond those prescribed by the CPLR and/or other applicable provisions of law. Accordingly, no such documents will be produced in response to this Request. Request No. 5 "5" Any and all documents relating to the allegations contained in paragraph of Plaintiff's Complaint, specifying that Plaintiff is a domestic liability company duly authorized to conduct business in the State of New York, with an address located at 1100 Franklin Avenue, Suite 103, Garden City, New York 1530. Resnonse to Reauest No. 5 In addition to the general objections stated above, Plaintiff objects to this Request on the grounds that itseeks documents, which are available as public records, and which are readily available to Defendant by merely accessing the New York State Department of Corporations website. Accordingly, no documents will be produced in response to this Request. Request No. 6 Any and all documents, including correspondence relating to the formation of and restricting of any and all of the following: DVK Realty, Inc., DVK Realty LLC and/or DVK Realty of New York LTD, including the formation, change of entity or dissolution. Response to Request No. 6 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that it seeks the production of voluminous documents without specifying with reasonable particularity the documents requested. Plaintiff further objects to this Request in that documents pertaining to DVK Realty of New York LTD. are neither relevant to the issues of law and fact in this action, nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to the Request to the extent that itrequests the production of documents in a vague or ambiguous manner and/or with insufficient specificity. Plaintiff further objects to this Request to the extent that itseeks documents, which are available as public records. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Reguest No. 7 "7" Any and all documents relating to the allegations contained in paragraph of Plaintiff's Complaint, specifying that Plaintiff's predecessor, D.V.K. Realty, Inc. ("Tenant Predecessor"), as -7- 7 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 tenant, and James Frontero ("Landlord Predecessor"), as landlord, entered into a written net lease agreement dated September 7, 1977 for the commercial premises located at 245 Pine Hollow Road, Oyster Bay, New York 11771. Response to Request No. 7 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that itseeks documents, which are already within Defendant's possession, custody and/or control, and/or concerns information, which is already known to Defendant. Subject to the general objections, in addition to the objections stated above, the Original Lease, as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such document is already within Defendant's possession custody and/or control. Request No. 8 "8" Any and all documents relating to the allegations contained in paragraph of Plaintiff's Complaint, specifying that Tenant Predecessor and Landlord predecessor entered into an Amendment to Lease dated December 19, 1987. Response to Request No. 8 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that itseeks documents, which are already within Defendant's possession, custody and/or control, and/or concerns information, which is already known to Defendant. Subject to the general objections, in addition to the objections stated above, the First Amendment, as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such document is already within Defendant's possession custody and/or control. Reauest No. 9 "9" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Landlord Predecessor and Tenant Predecessor entered into a Second Amendment to Lease dated January 17, 1989 (the "Second Amendment"). Resnonse to Reauest No. 9 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that itseeks documents, which are already within Defendant's possession, custody and/or control, and/or concerns information, which is already known to Defendant. Subject to the general objections, in addition to the objections stated above, the Second Amendment, as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such document is already within Defendant's possession custody and/or control. -8- 8 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Reauest No. 10 "10" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of the Complaint, specifically, that Landlord Predecessor and Tenant Predecessor entered into a Third Amendment to Lease dated February 28, 1989 (the "Third Amendment"; together with the Original Lease, First Amendment, and Second Amendment, the "Lease") Resnonse to Request No. 10 In addition to the general objections set forth above, Plaintiff objects to this Request to the extent that itseeks documents, which are already within Defendant's possession, custody and/or control, and/or concerns information, which is already known to Defendant. Subject to the general objections, in addition to the objections stated above, the Third Amendment, as such term is defined in the Demand, will hereinafter be provided, notwithstanding that such document is already within Defendant's possession custody and/or control. Reguest No. 11 "11" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that pursuant to paragraph 2 of the Original Lease, as amended by paragraph 2 of the second Amendment, the term of the Lease was to expire on December 31, 2008, subject, however, to Tenant's Predecessor's exclusive option to extend the term of the Lease for five (5) additional periods of five (5) years each. Resnonse to Request No. 11 In addition to the general objections stated above, Plaintiff objects to this Request in that itis beyond the proper scope of a discovery demand and/or otherwise seeks to impose obligations upon Plaintiff beyond those prescribed by the CPLR and/or other applicable provisions of law, in that, itseeks the production of documents which call for a legal conclusion. Plaintiff further objects to this Request to the extent that it seeks the production of documents which are already with Defendant's possession, custody and/or control. Plaintiff further objects to this Request to the extent that itseeks the production of documents concerning information, which is already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 12 "12" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that in or around 1997, Tenant Predecessor converted the Tenant Predecessor entity from a corporation to the Plaintiff limited liability company as part of an overall restructuring the ("Conversion"). 9 9 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Response to Request No. 12 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that it seeks documents concerning information, which is already known to Defendant or information peculiarly with Defendant's sphere of knowledge. Subject to the foregoing objection, in addition to the general objection stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 13 "13" Plaintiff' Any and all documents relating to the allegations contained in paragraph of Complaint specifying that Landlord Predecessor and/or itsagents were notified, in writing, of the Conversion as early as 1998. Resnonse to Reauest No. 13 Subject to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Re_quest No. 14 "14" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Landlord predecessor never objected to the Conversion. Resnonse to Request No. 14 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that itcalls for a legal conclusion, and therefore, is beyond the proper scope of a discovery demand. Plaintiff further objects to this Request to the extent that it seeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 15 "15" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that following the Conversion, Landlord Predecessor continued to accept rent every month from the Plaintiff without objection. -10- 10 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Response to Reauest No. 15 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that itseeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. Subject to the foregoing objection, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 16 "16" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Landlord Predecessor sent correspondence to Plaintiff concerning the Lease following the Conversion. Response to Reauest No. 16 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that it seeks the production of voluminous documents without specifying with reasonable particularity the documents requested. Plaintiff further objects to this Request to the extent that it seeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this request, if any, will hereinafter be provided. Reauest No. 17 "17" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that on or about December 4, 2000, title to the Premises was conveyed to Defendant. Response to Request No. 17 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that itseeks to require Plaintiff to provide documents on the behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. Plaintiff further objects to this Request to the extent that it requests documents concerning information already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to the Request to the extent that itwould require the production of documents, which are either generated by Defendant, or otherwise in Defendant's custody, possession and/or control. It would be unduly burdensome to require Plaintiff to produce such documents, and accordingly, Plaintiff will not produce such documents, but, hereby reserves the right to use and/or rely on any document heretofore or hereafter produced by Defendant. -11- 11 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Ih quest No. 18 "19" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Defendant was fully aware that Plaintiff was the tenant at the time it was conveyed the Premises. Response to Request No. 18 In addition to the general objections stated above, Plaintiff objects to this Request as being beyond the proper scope of a discovery demand in that, inter alia, itcalls for legal conclusions. Plaintiff further objects to this Request to the extent that it requests documents concerning information already known to Defendant or information which is peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to this Request to the extent that itwould require Plaintiff to provide documents on behalf of,or within the knowledge or control of,an entity or individual over whom Plaintiff has no control. Plaintiff further objects to this Request to the extent that itwould require the production of documents, which are either generated by Defendant, or otherwise in Defendant's possession, custody and/or control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 19 "19" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Defendant never objected to Plaintiff as the tenant under the Lease. Resnonse to Reauest No. 19 In addition to the general objections stated above, Plaintiff objects to this Request as being beyond the proper scope of a discovery demand in that, inter alia, itcalls for legal conclusions. Plaintiff further objects to this Request to the extent that it requests documents concerning information already known to Defendant or information which is peculiarly within Defendant's sphere of knowledge. Plaintiff further objects to this Request to the extent that itwould require Plaintiff to provide documents on behalf of, or within the knowledge or control of, an entity or individual over whom Plaintiff has no control. Subject to the foregoing objections, in addition to the general objections stated above, documents responsive to this Request, if any, will hereinafter be provided. Request No. 20 "20" Plaintiffs' Any and all documents relating to the allegations contained in paragraph of Complaint, specifying that Defendant continued to accept rent every month from the Plaintiff for the past nineteen (19) years. -12- 12 of 30 FILED: NASSAU COUNTY CLERK 03/19/2020 04:30 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/19/2020 Resnonse to Reauest No. 20 In addition to the general objections stated above, Plaintiff objects to this Request to the extent that it requests the production of documents, which are already within Defendant's possession, custody and/or control. Plaintiff further objects to this Request to the extent that it requests the production of documents concerning information which is already known to Defendant, or information peculiarly within Defendant's sphere of knowledge. Subject to the foregoing