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FILED: NEW YORK COUNTY CLERK 02/13/2014 INDEX NO. 151302/2014
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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KE KAILANI PARTNERS, LLC, , : Index No. _______
:
Petitioner, :
: AFFIRMATION OF GORDON
: SUNG IN SUPPORT OF
: PETITIONER’S MOTION TO
v. : COMPEL PURSUANT TO
: CPLR 3119 AND 3124
:
MICHAEL J. FUCHS, :
:
Respondents, :
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Gordon Sung, an attorney duly admitted to practice law in New York, affirms under
penalties of perjury, and in accordance with CPLR 2106, as follows:
1. I am associated with Dechert LLP, counsel to Petitioner Ke Kailani Partners,
LLC, in the separate enforcement proceedings filed in New York County Supreme Court
captioned Ke Kailani Partners, LLC v. Ke Kailani Development, LLC, No. 104025/2012 (the
“New York Enforcement Action”). The New York Enforcement Action relates to a judgment
rendered in a civil action in the Circuit Court of the First Circuit, Honolulu, Hawaii, entitled Ke
Kailani Partners, LLC v. Ke Kailani Development, LLC, et al., Civil No. 09-1-2523-10 (the
“Hawaii Action”). We were retained for the additional purpose of assisting Petitioner serve an
out-of-state subpoena upon Respondent Fuchs in New York pursuant to CPLR 3119, for use in
the Hawaii Action.
2. I respectfully submit this affirmation in support of Petitioner’s Motion to Compel.
The statements herein are based on my personal knowledge to the extent I was personally
involved, and otherwise based on information and belief from documents and information I
received. No prior motion for similar relief has been filed by Petitioner.
15157691.3.LITIGATION
3. Attached as Exhibit 1 is a true and correct copy of the Petitioner’s subpoena
served pursuant to CPLR 3119 (the “Subpoena”) and the affidavit of service upon Respondent
Michael J. Fuchs (“Fuchs”) by means of personal service.
4. The Subpoena was served upon Fuchs on January 25, 2014.
5. Attached as Exhibit 2 is a true and correct copy of the letter from Fuchs’ New
York counsel, dated February 4, 2014, “rejecting” the Subpoena on behalf of Fuchs.
6. I conferred with Christopher J. Major, Fuchs’s New York counsel, by telephone
and email on February 11, 2014, and Mr. Major reaffirmed that Fuchs would not comply with
the Subpoena.
7. Attached as Exhibit 3 is a true and correct copy of an affidavit by Steven W.
Colon, Vice-President of the Hawaii Renaissance Builders, LLC, the managing member of
Petitioner, filed on March 28, 2013, in support of Petitioner’s Response to a motion brought by
Fuchs in the New York Enforcement Action (Motion Sequence 002).
8. Attached as Exhibit 4 is a true and correct copy of an affidavit filed by Sharon V.
Lovejoy, counsel in the Hawaii Action, filed May 1, 2013, in support a motion filed by Petitioner
in the New York Enforcement Action (Motion Sequence 004).
9. On April 23, 2012, a deficiency judgment of $21,594,668.55 (the “Hawaii
Judgment”) was entered against Fuchs in the Hawaii Action, and on October 16, 2012, Petitioner
domesticated the Hawaii Judgment in New York County pursuant to Article 54 of the CPLR,
thereby initiating the New York Enforcement Action.
10. On May 13, 2013, Justice Shlomo S. Hagler, the presiding judge in the NY
Enforcement Action, held oral argument on three separate motions (Motion Sequences 001, 002
15157691.3.LITIGATION
and 003) filed by Fuchs at various times in the New York Enforcement Action. These three
motions sought essentially identical relief, but under different legal theories.
11. Justice Hagler granted Fuchs’ request for a stay of New York enforcement
pending the outcome of the appeal in Hawaii, upon Fuchs posting a bond in the amount of 10%
of the Hawaii Judgment (the “New York Stay”). Attached as Exhibit 5 are true and correct
copies of the short-form Orders entered by Justice Hagler on Motion Sequences 001-003.
12. On May 24, 2013, Petitioner moved in the New York Enforcement Action for a
renewal of the New York Stay, requesting that the stay of the New York enforcement be
conditioned upon proof that Fuchs has satisfied the requirements set forth by Hawaii, i.e., the
posting of a bond in the full amount of the judgment.
13. Attached as Exhibit 6 is a true and correct copy of the transcript of the July 15,
2013 hearing in the New York Enforcement Action regarding Petitioner’s motion for renewal of
the New York Stay.
14. On July 30, 2013, Fuchs deposited the bond required for a stay with the New
York County clerk.
Dated: New York, New York
February 12, 2014
/S/ Gordon Sung
Gordon Sung, Esq.
15157691.3.LITIGATION
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FILED: NEW YORK COUNTY CLERK 02/13/2014 INDEX NO. 151302/2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------- X KE KAILANI PARTNERS, LLC, , : Index No. _______ : Petitioner, : : AFFIRMATION OF GORDON : SUNG IN SUPPORT OF : PETITIONER’S MOTION TO v. : COMPEL PURSUANT TO : CPLR 3119 AND 3124 : MICHAEL J. FUCHS, : : Respondents, : ------------------------------------------------------------------------- X Gordon Sung, an attorney duly admitted to practice law in New York, affirms under penalties of perjury, and in accordance with CPLR 2106, as follows: 1. I am associated with Dechert LLP, counsel to Petitioner Ke Kailani Partners, LLC, in the separate enforcement proceedings filed in New York County Supreme Court captioned Ke Kailani Partners, LLC v. Ke Kailani Development, LLC, No. 104025/2012 (the “New York Enforcement Action”). The New York Enforcement Action relates to a judgment rendered in a civil action in the Circuit Court of the First Circuit, Honolulu, Hawaii, entitled Ke Kailani Partners, LLC v. Ke Kailani Development, LLC, et al., Civil No. 09-1-2523-10 (the “Hawaii Action”). We were retained for the additional purpose of assisting Petitioner serve an out-of-state subpoena upon Respondent Fuchs in New York pursuant to CPLR 3119, for use in the Hawaii Action. 2. I respectfully submit this affirmation in support of Petitioner’s Motion to Compel. The statements herein are based on my personal knowledge to the extent I was personally involved, and otherwise based on information and belief from documents and information I received. No prior motion for similar relief has been filed by Petitioner. 15157691.3.LITIGATION 3. Attached as Exhibit 1 is a true and correct copy of the Petitioner’s subpoena served pursuant to CPLR 3119 (the “Subpoena”) and the affidavit of service upon Respondent Michael J. Fuchs (“Fuchs”) by means of personal service. 4. The Subpoena was served upon Fuchs on January 25, 2014. 5. Attached as Exhibit 2 is a true and correct copy of the letter from Fuchs’ New York counsel, dated February 4, 2014, “rejecting” the Subpoena on behalf of Fuchs. 6. I conferred with Christopher J. Major, Fuchs’s New York counsel, by telephone and email on February 11, 2014, and Mr. Major reaffirmed that Fuchs would not comply with the Subpoena. 7. Attached as Exhibit 3 is a true and correct copy of an affidavit by Steven W. Colon, Vice-President of the Hawaii Renaissance Builders, LLC, the managing member of Petitioner, filed on March 28, 2013, in support of Petitioner’s Response to a motion brought by Fuchs in the New York Enforcement Action (Motion Sequence 002). 8. Attached as Exhibit 4 is a true and correct copy of an affidavit filed by Sharon V. Lovejoy, counsel in the Hawaii Action, filed May 1, 2013, in support a motion filed by Petitioner in the New York Enforcement Action (Motion Sequence 004). 9. On April 23, 2012, a deficiency judgment of $21,594,668.55 (the “Hawaii Judgment”) was entered against Fuchs in the Hawaii Action, and on October 16, 2012, Petitioner domesticated the Hawaii Judgment in New York County pursuant to Article 54 of the CPLR, thereby initiating the New York Enforcement Action. 10. On May 13, 2013, Justice Shlomo S. Hagler, the presiding judge in the NY Enforcement Action, held oral argument on three separate motions (Motion Sequences 001, 002 15157691.3.LITIGATION and 003) filed by Fuchs at various times in the New York Enforcement Action. These three motions sought essentially identical relief, but under different legal theories. 11. Justice Hagler granted Fuchs’ request for a stay of New York enforcement pending the outcome of the appeal in Hawaii, upon Fuchs posting a bond in the amount of 10% of the Hawaii Judgment (the “New York Stay”). Attached as Exhibit 5 are true and correct copies of the short-form Orders entered by Justice Hagler on Motion Sequences 001-003. 12. On May 24, 2013, Petitioner moved in the New York Enforcement Action for a renewal of the New York Stay, requesting that the stay of the New York enforcement be conditioned upon proof that Fuchs has satisfied the requirements set forth by Hawaii, i.e., the posting of a bond in the full amount of the judgment. 13. Attached as Exhibit 6 is a true and correct copy of the transcript of the July 15, 2013 hearing in the New York Enforcement Action regarding Petitioner’s motion for renewal of the New York Stay. 14. On July 30, 2013, Fuchs deposited the bond required for a stay with the New York County clerk. Dated: New York, New York February 12, 2014 /S/ Gordon Sung Gordon Sung, Esq. 15157691.3.LITIGATION