Preview
FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_____________________________________________
BASSINI & CO., LLC,
Plaintiff, Index No. 656208/2019
-against- Justice Lebovits
Part 7
BIT BY BIT COMPUTER CONSULTANTS, INC.
AND BRUCE STEINFELD, Motion Seq. No. 002
Defendants.
PLAINTIFF BASSINI & CO., LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO LIFT THE STAY PURSUANT TO CPLR 3214(b)
Plaintiff Bassini & Co., LLC (“Bassini”), by and through its counsel, Aguilar Bentley LLC,
submits this Memorandum of Law in Support of its Motion to Lift the Stay Pursuant to CPLR
3214(b).
PRELIMINARY STATEMENT
While CPLR 3214(b) imposes an automatic stay of disclosure upon the filing of a motion
to dismiss, “statutorily the court may, of course, direct otherwise.” Arthur Glick Truck Sales, Inc.
v. H.O. Penn Machinery Co., Inc., 2004 WL 2472475, at *3 (Sup. Ct. Co. Sullivan Co. Nov. 3,
2004) (citing McKinney's Consolidated Laws of New York, Book 7B, Rule 3214, Practice
Commentaries, David D. Siegel, p. 536). Indeed, “CPLR § 3214(b) itself authorizes the court to
order discovery notwithstanding the automatic stay of CPLR § 3214(b).” Id.
Here, the Court should permit discovery to move forward during the pendency of
Defendants’ partial motion to dismiss pursuant to CPLR 3211(a)(7). Defendants’ motion seeks to
dismiss only one of the five causes of action set forth in the Complaint. Bassini’s causes of action
all arise from the same misconduct – namely, Defendants’ failure to provide Bassini with the
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remote back-up of its electronic data – notwithstanding that Bassini paid for such service.
Accordingly, a stay resulting from Defendants’ motion to dismiss a single cause of action
(violation of General Business Law § 349) only seeks to unnecessarily delay these proceedings
because regardless of the decision, discovery will ultimately proceed as there are four other causes
of action. Moreover, given that all of the causes of action arise from the same misconduct and
therefore there is no meaningful distinction as to relevance under the liberal standard set forth in
CPLR 3101(a) for disclosure, allowing for disclosure during the pendency of the motion to dismiss
is all the more appropriate. See Del Gallo v. City of New York, 2014 WL 2745696, at *1 (Sup. Ct.
N.Y. Co. Jun. 17, 2014) (“[T]he scope of pre-trial discovery under CPLR 3101(a) is broad” and
disclosure required “of any facts bearing on the controversy . . .”).
STATEMENT OF FACTS
Bassini is a family office that manages its investment portfolio – and whose records are
critical to the operation of its business. See Complaint, a copy of which is attached to the
Affirmation of Ryan Weiner dated February 18, 2020 (“Weiner Affirmation”), filed
simultaneously herewith, at Exhibit 1, ¶ 2. Defendant Bit by Bit Computer Consultants, Inc. (“Bit
by Bit”) is a technology consulting company that Bassini retained and paid to provide remote
backup service for Bassini’s electronica data. Id. ¶ 3. Defendant Bruce Steinfeld (“Steinfeld”) is
the CEO and President of Bit by Bit, and has admitted Bit by Bit’s failure to backup Bassini’s
electronica data. Id.
On October 23, 2019, Bassini commenced the instant action against Defendants Bit by Bit
and Steinfeld arising from their failure to back-up Bassini’s electronic files over a six year period
from approximately October 2013 to June 2019 – notwithstanding Bassini’s timely monthly
payments throughout such period. Id. ¶ 1.
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Bassini’s Complaint alleges five causes of action – breach of contract, unjust enrichment,
violation of General Business Law § 349, negligent misrepresentation and negligence. See
Complaint. All of the causes of action are predicated on Bit by Bit’s failure to preserve electronic
data. Id. On December 5, 2019, Bassini served its (i) First Request for the Production of
Documents, (ii)First Set of Interrogatories and (iii)Notice of Deposition on Defendant Bruce
Steinfeld. Id. Exs. 2-4, respectively. On December 13, 2019, Defendants filed a partial motion to
dismiss – seeking to dismiss only one of the five causes of action asserted against them – violation
of General Business Law § 349.
Subsequent to filing their partial motion to dismiss, Defendants have flatly refused to
respond to Bassini’s document requests, interrogatories or appear for the noticed depositon –
relying on the automatic stay that CPLR 3214(b) imposes upon the filing of a motion to dismiss.
See Weiner Affirmation. As set forth in the accompanying Weiner Affirmation, Bassini’s counsel
conferred in good faith with Defendants’ counsel in an attempt to reach resolution. Defendants,
however, flatly refuse to engage in discovery while their partial motion to dismiss is pending. Id.
ARGUMENT
As set forth above, while CPLR 3214(b) imposes an automatic stay of disclosure upon the
filing of a motion to dismiss, “statutorily the court may, of course, direct otherwise.” Arthur Glick
Truck Sales, Inc. v. H.O. Penn Machinery Co., Inc., 2004 WL 2472475, at *3 (Sup. Ct. Co. Sullivan
Co. Nov. 3, 2004) (citing McKinney's Consolidated Laws of New York, Book 7B, Rule 3214,
Practice Commentaries, David D. Siegel, p. 536). Indeed, “CPLR § 3214(b) itself authorizes the
court to order discovery notwithstanding the automatic stay of CPLR § 3214(b).” Id.
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Here, the Court should order disclosure to proceed during the pendency of Defendants’
partial motion to dismiss. The stay imposed by CPLR 3214(b), if not lifted, will only serve to
delay this action because, as noted above, regardless of the outcome of Defendants’ partial motion
to dismiss, disclosure will proceed on no less than four of Bassini’s claims. It is unfair to Bassini
to delay its ability to prosecute its claims merely because Defendants have sought to dismiss one
of the five causes of action asserted in the Complaint – the violation of General Business Law §
349.
The scope of discovery will not be affected by the Court’s decision given that all five of
the causes of action arise from the same misconduct – namely, Defendants’ failure to provide
remote back-up of electronic data. This is particularly the case given the liberal standard set forth
in CPLR 3101(a) for disclosure. See Del Gallo v. City of New York, 2014 WL 2745696, at *1
(Sup. Ct. N.Y. Co. Jun. 17, 2014) (“[T]he scope of pre-trial discovery under CPLR 3101(a) is
broad” and disclosure required “of any facts bearing on the controversy . . .”).
Accordingly, the Court should lift the stay pursuant to CPLR 3214(b).
[Remainder of Page Intentionally Left Blank]
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CONCLUSION
For all of the foregoing reasons, Plaintiff respectfully requests that the Court lift the stay
pursuant to CPLR 3214(b) and grant any other relief it deems just and proper.
Dated: New York, NY
February 18, 2020
AGUILAR BENTLEY LLC
5 Penn Plaza, 19th Floor
New York, NY 10001
212-835-1521
aaguilar@aguilarbentley.com
rweiner@aguilarbentley.com
By: /s Ryan Weiner
Anna Aguilar
Ryan Weiner
Attorneys for Plaintiff
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FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _____________________________________________ BASSINI & CO., LLC, Plaintiff, Index No. 656208/2019 -against- Justice Lebovits Part 7 BIT BY BIT COMPUTER CONSULTANTS, INC. AND BRUCE STEINFELD, Motion Seq. No. 002 Defendants. PLAINTIFF BASSINI & CO., LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO LIFT THE STAY PURSUANT TO CPLR 3214(b) Plaintiff Bassini & Co., LLC (“Bassini”), by and through its counsel, Aguilar Bentley LLC, submits this Memorandum of Law in Support of its Motion to Lift the Stay Pursuant to CPLR 3214(b). PRELIMINARY STATEMENT While CPLR 3214(b) imposes an automatic stay of disclosure upon the filing of a motion to dismiss, “statutorily the court may, of course, direct otherwise.” Arthur Glick Truck Sales, Inc. v. H.O. Penn Machinery Co., Inc., 2004 WL 2472475, at *3 (Sup. Ct. Co. Sullivan Co. Nov. 3, 2004) (citing McKinney's Consolidated Laws of New York, Book 7B, Rule 3214, Practice Commentaries, David D. Siegel, p. 536). Indeed, “CPLR § 3214(b) itself authorizes the court to order discovery notwithstanding the automatic stay of CPLR § 3214(b).” Id. Here, the Court should permit discovery to move forward during the pendency of Defendants’ partial motion to dismiss pursuant to CPLR 3211(a)(7). Defendants’ motion seeks to dismiss only one of the five causes of action set forth in the Complaint. Bassini’s causes of action all arise from the same misconduct – namely, Defendants’ failure to provide Bassini with the 1 of 5 FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020 remote back-up of its electronic data – notwithstanding that Bassini paid for such service. Accordingly, a stay resulting from Defendants’ motion to dismiss a single cause of action (violation of General Business Law § 349) only seeks to unnecessarily delay these proceedings because regardless of the decision, discovery will ultimately proceed as there are four other causes of action. Moreover, given that all of the causes of action arise from the same misconduct and therefore there is no meaningful distinction as to relevance under the liberal standard set forth in CPLR 3101(a) for disclosure, allowing for disclosure during the pendency of the motion to dismiss is all the more appropriate. See Del Gallo v. City of New York, 2014 WL 2745696, at *1 (Sup. Ct. N.Y. Co. Jun. 17, 2014) (“[T]he scope of pre-trial discovery under CPLR 3101(a) is broad” and disclosure required “of any facts bearing on the controversy . . .”). STATEMENT OF FACTS Bassini is a family office that manages its investment portfolio – and whose records are critical to the operation of its business. See Complaint, a copy of which is attached to the Affirmation of Ryan Weiner dated February 18, 2020 (“Weiner Affirmation”), filed simultaneously herewith, at Exhibit 1, ¶ 2. Defendant Bit by Bit Computer Consultants, Inc. (“Bit by Bit”) is a technology consulting company that Bassini retained and paid to provide remote backup service for Bassini’s electronica data. Id. ¶ 3. Defendant Bruce Steinfeld (“Steinfeld”) is the CEO and President of Bit by Bit, and has admitted Bit by Bit’s failure to backup Bassini’s electronica data. Id. On October 23, 2019, Bassini commenced the instant action against Defendants Bit by Bit and Steinfeld arising from their failure to back-up Bassini’s electronic files over a six year period from approximately October 2013 to June 2019 – notwithstanding Bassini’s timely monthly payments throughout such period. Id. ¶ 1. 2 2 of 5 FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020 Bassini’s Complaint alleges five causes of action – breach of contract, unjust enrichment, violation of General Business Law § 349, negligent misrepresentation and negligence. See Complaint. All of the causes of action are predicated on Bit by Bit’s failure to preserve electronic data. Id. On December 5, 2019, Bassini served its (i) First Request for the Production of Documents, (ii)First Set of Interrogatories and (iii)Notice of Deposition on Defendant Bruce Steinfeld. Id. Exs. 2-4, respectively. On December 13, 2019, Defendants filed a partial motion to dismiss – seeking to dismiss only one of the five causes of action asserted against them – violation of General Business Law § 349. Subsequent to filing their partial motion to dismiss, Defendants have flatly refused to respond to Bassini’s document requests, interrogatories or appear for the noticed depositon – relying on the automatic stay that CPLR 3214(b) imposes upon the filing of a motion to dismiss. See Weiner Affirmation. As set forth in the accompanying Weiner Affirmation, Bassini’s counsel conferred in good faith with Defendants’ counsel in an attempt to reach resolution. Defendants, however, flatly refuse to engage in discovery while their partial motion to dismiss is pending. Id. ARGUMENT As set forth above, while CPLR 3214(b) imposes an automatic stay of disclosure upon the filing of a motion to dismiss, “statutorily the court may, of course, direct otherwise.” Arthur Glick Truck Sales, Inc. v. H.O. Penn Machinery Co., Inc., 2004 WL 2472475, at *3 (Sup. Ct. Co. Sullivan Co. Nov. 3, 2004) (citing McKinney's Consolidated Laws of New York, Book 7B, Rule 3214, Practice Commentaries, David D. Siegel, p. 536). Indeed, “CPLR § 3214(b) itself authorizes the court to order discovery notwithstanding the automatic stay of CPLR § 3214(b).” Id. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020 Here, the Court should order disclosure to proceed during the pendency of Defendants’ partial motion to dismiss. The stay imposed by CPLR 3214(b), if not lifted, will only serve to delay this action because, as noted above, regardless of the outcome of Defendants’ partial motion to dismiss, disclosure will proceed on no less than four of Bassini’s claims. It is unfair to Bassini to delay its ability to prosecute its claims merely because Defendants have sought to dismiss one of the five causes of action asserted in the Complaint – the violation of General Business Law § 349. The scope of discovery will not be affected by the Court’s decision given that all five of the causes of action arise from the same misconduct – namely, Defendants’ failure to provide remote back-up of electronic data. This is particularly the case given the liberal standard set forth in CPLR 3101(a) for disclosure. See Del Gallo v. City of New York, 2014 WL 2745696, at *1 (Sup. Ct. N.Y. Co. Jun. 17, 2014) (“[T]he scope of pre-trial discovery under CPLR 3101(a) is broad” and disclosure required “of any facts bearing on the controversy . . .”). Accordingly, the Court should lift the stay pursuant to CPLR 3214(b). [Remainder of Page Intentionally Left Blank] 4 4 of 5 FILED: NEW YORK COUNTY CLERK 02/18/2020 04:19 PM INDEX NO. 656208/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/18/2020 CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court lift the stay pursuant to CPLR 3214(b) and grant any other relief it deems just and proper. Dated: New York, NY February 18, 2020 AGUILAR BENTLEY LLC 5 Penn Plaza, 19th Floor New York, NY 10001 212-835-1521 aaguilar@aguilarbentley.com rweiner@aguilarbentley.com By: /s Ryan Weiner Anna Aguilar Ryan Weiner Attorneys for Plaintiff 5 5 of 5