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FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020
SUPREME COURT STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------ X
VANESA LEVINE,
Plaintiff, Index No.: 151119/2020
- against -
AFFIRMATION IN
OPPOSITION
FARIS SAAH A/K/A FARIS M. SAAH A/K/A
FARIS MOUSA SAAH A/K/A PROFESSOR
FARIS MOUSA SAAH, and HARVARD CLUB
OF NEW YORK CITY,
Defendants.
----------------------------------------------------------------------- X
LARRY H. LUM, an attorney duly licensed to practice law before the courts of the State
of New York, hereby says and affirms the following to be true under the penalties of perjury:
1. I am a member of the law firm Wilson, Elser, Moskowitz, Edelman & Dicker, LLP,
attorneys for defendant, HARVARD CLUB OF NEW YORK CITY (“Harvard Club”). As such,
I am fully familiar with the facts and circumstances of this case based upon my review of the file
maintained by my office.
2. This affirmation is submitted in opposition to plaintiff’s motion for a preliminary
injunction restraining attorney Stephen P. Younger, Esq. (“Younger”) from contacting or
communicating with plaintiff, Vanesa Levine. The instant application is without merit, wholly
unnecessary and completely misdirected toward defendant Harvard Club to the extent that it seeks
equitable relief against a third-party. As established by the attached affidavit of Stephen P.
Younger (Exhibit “A”), the complained of Facebook “friend request” was unintentional and
inadvertently initiated; it was immediately withdrawn upon Mr. Younger having been made aware
that the request had been sent from his Facebook account; and he has not made any further contact
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with or sent any further social media notifications or requests to plaintiff since that time; nor does
he have any desire or intention to do so ever again.
PROCEDURAL HISTORY
3. As this Court is aware, this matter was removed to the Southern District of New
York and thereafter remanded back to New York State Supreme Court on September 30, 2020. A
copy of Hon. U.S. District Judge Koeltl’s Decision and Order regarding the remand is annexed
hereto as Exhibit “B.”
4. On the Friday prior to the Monday deadline for the filing of the notice of removal,
plaintiff had filed an Order to Show Cause seeking a preliminary injunction against Mr. Younger
and a TRO pending the outcome of the motion. The parties appeared for an initial hearing for the
Order to Show Cause before Honorable Barbara Jaffe, J.S.C., on March 9, 2020, where the Court
was advised of the Notice of Removal filing with the Southern District that very morning, as well
as the impending processing of the removal by the Clerk of the Court for New York County
Supreme Court. At the hearing, the Court made it clear that the removal would render the
injunction issue moot and did not address the merits of the application beyond issuing the interim
relief of a TRO pending the removal. See attached as Exhibit “C” the minutes from the March 9,
2020 hearing before Justice Jaffe. Following removal, Judge Jaffe thereafter issued a Decision
deeming the motion disposed. A copy of Judge Jaffe’s Decision and Order is annexed hereto as
Exhibit “D.”
5. Upon removal, plaintiff did not renew her injunction request before the U.S. District
Court. As of May 20, 2020 the motion was marked disposed by Judge Jaffe (Exhibit “D”). As
plaintiff failed to renew the application, the request for an injunction together with the TRO,
expired of its own terms.
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6. The Court has now reinstated the injunction motion in response to plaintiff’s
request for a hearing; however, as discussed below, the application is devoid of any procedural
and substantive merit and should be denied in its entirety. The instant motion is directed at
defendant Harvard Club for activities by a Club Board Member on social media that would include
personal interaction, as well as those that may have been performed on behalf of or for the benefit
of the Harvard Club. Mr. Younger is not a party to this action and the Court has no legal basis to
issue any relief against him.
7. In any event, there is no legitimate issue or dispute that the Facebook “friend
request” from Mr. Younger to plaintiff Levine was inadvertent and unintentional. There is no
confirmation received regarding a “friend request” as it is a one click of a button process. As soon
as Mr. Younger was alerted to the mistaken “friend request” by a New York Post reporter, the
request was immediately rescinded. This request was unknowingly sent in late February or early
March 2020, more than nine (9) months ago. Mr. Younger has not since contacted, nor does he
have any intention or desire to contact, plaintiff Levine (See Younger Affidavit annexed hereto as
Exhibit “A”). There is thus no imminent irreparable harm that could come to plaintiff as a result
of this long ago friend request.
ARGUMENT
PLAINTIFF’S MOTION IS DIRECTED TO
HARVARD CLUB FOR ACTIONS OF A NON-PARTY
8. First, it should be noted that plaintiff’s motion is inappropriately directed to
defendant Harvard Club. Mr. Younger is a member of the Harvard Club, sits on its Board and
serves as one of its Vice Presidents. Mr. Younger is not and never has been a party to this action.
As such, plaintiff’s application for relief, whether being viewed as against such third-party or
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against defendant Harvard Club, is improper in the context of the instant lawsuit and amounts to
an abuse of process.
9. Procedurally, Mr. Younger is not a party to this action and thus is not before the
Court. As a result, this motion is improper as against the Harvard Club and for that reason alone
should be denied outright. None of the issues raised by plaintiff in the instant motion are issues
that are remotely germane to the causes of action being asserted in this matter. This motion is
evidence of the abusive nature of the plaintiff’s application regarding a non-party by using
improper motion practice to unduly burden the Court and prolong this litigation.
10. Moreover, even assuming counsel for plaintiff presumes he has a basis to seek to
preclude efforts by Mr. Younger to contact his client, the good faith basis for these purported
concerns is belied by the instant application, which is not even directed at Mr. Younger himself.
THERE IS ABSOLUTELY NO NEED FOR A PRELIMINARY INJUNCTION
AND/OR TRO NOR HAS PLAINTIFF MET THE STANDARD TO OBTAIN SAME
11. As previously mentioned, Mr. Younger mistakenly and inadvertently sent plaintiff
Levine a “friend request” on Facebook in late February or early March 2020. Immediately upon
recognizing that the request had been sent, Younger withdrew the “friend request.” Plaintiff
Levine did not accept the request, and there was zero communication between plaintiff Levine and
Mr. Younger (Exhibit “A”).
12. Now, more than nine (9) months later, there has been zero communication or other
contact between Mr. Younger and plaintiff Levine. What is more, Younger has confirmed that he
has no intention or desire of ever contacting plaintiff Levine in any way, nor did he possess that
intention when the friend request was inadvertently sent to her (Exhibit “A”).
13. To obtain a temporary restraining order or a preliminary injunction, the movant
must establish: (1) a probability of success on the merits; (2) the danger of irreparable harm in the
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absence of an injunction; and (3) a balance of the equities in the movant’s favor. Aetna Ins. Co. v.
Capasso, 75 N.Y.2d 860, 862 (1990). A temporary restraining order requires the additional
showing that the danger of irreparable injury is “immediate.” See CPLR § 6313(a). Accordingly,
“[t]emporary restraining orders are drastic remedies and should be used sparingly.” Silvestre v.
De Loaiza, 12 Misc.3d 492, 493 (Sup. Ct. N.Y. Cty. 2006); see also Grumet v. Cuomo, 162 Misc.2d
913, 929 (Sup. Ct. Albany Cty. 1994) (citing Kuttner v. Cuomo, 147 A.D.2d 215, 218 (3rd Dept.
1989), aff’d 75 N.Y.2d 596 (1990)); 67A N.Y. Jur. 2d Injunctions § 59 (2017) (TRO’s “are
remedies which should be used sparingly”). New York courts require that an applicant for a TRO
meet the other standards required for preliminary injunctive relief, and like TROs, a preliminary
injunction is a “drastic remedy” that will not be granted unless a clear right to it is established
under the law and upon undisputed facts found in the moving papers, and the burden of showing
an undisputed right rests upon the movant.” Anastasi v. Majopon Realty Corp., 181 A.D.2d 706,
707 (2d Dept. 1992) (internal citations omitted). The movant must demonstrate each element by
“clear and convincing evidence.” EdCia Corp. v. McCormack, 44 A.D.3d 991, 993 (2d Dept.
2007). “Proof establishing these elements must be by affidavit and other competent proof, with
evidentiary detail. If key facts are in dispute, the relief will be denied.” Faberge Int’l Inc. v. Di
Pino, 109 A.D.2d 235, 240 (1st Dept. 1985) (citation omitted). Here, Plaintiff cannot satisfy her
burden to meet either of these standards.
14. “Irreparable injury has been defined as “that which cannot be repaired, restored or
adequately compensated in money, or where the compensation cannot be measured in money.” A
party seeking a temporary restraining order must establish that a real threat of irreparable injury
exists by factual demonstration, mere apprehension or conjectural injury, or injury of an
inconsequential nature will not qualify as irreparable injury or justify the issuance of a temporary
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restraining order.” Bisca v. Bisca, 108 Misc.2d 227, 231, (Sup. Ct. Nassau Cty., 1981) (emphasis
added); see also Valentine v. Schembri, 212 A.D.3d 371 (1st Dept. 1995) (holding that Correction
officer was not entitled to temporary restraining order, pending determination of his application
for preliminary injunction enjoining Department of Corrections from conducting disciplinary
proceeding).
15. In the case at bar, there is absolutely no threat of irreparable injury, much less the
requisite imminent one. In fact, the “friend request” was inadvertent by Mr. Younger’s sworn
statement, and has never happened again. There is no ongoing issue nor has there been since the
minute the “friend request” was withdrawn moments soon after it was sent. Moreover, given that
Mr. Younger has voluntarily agreed to never again send any sort of “friend request” to plaintiff
Levine again, or to initiate any other sort of communication with her, the need for a TRO or
preliminary injunction is moot (Exhibit “A”). Simply put, plaintiff has not and cannot articulate
any threat of “immediate and irreparable injury” that was and is posed by Mr. Younger’s
inadvertent friend request sent more than nine (9) months ago.
16. Given that an inadvertent Facebook “friend request” gives rise to no danger of
irreparable harm, the extreme nature of requesting this injunction and reinstating this motion is
clearly a tactic being used by plaintiff to detract from the real issues in this case. To issue a TRO
or injunction on a matter that is plainly moot would only be superfluous.
17. Moreover, Plaintiff cannot meet the requisite balance of the equities test for an
injunction. Mr. Younger is a prominent attorney (as plaintiff’s counsel has previously
acknowledged) and has an unblemished reputation that would be unnecessarily called into question
if the requested injunction is granted. In contrast, when she learned of the friend request, plaintiff
promptly informed a New York Post reporter who called Mr. Younger about it. Had plaintiff truly
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harbored a bona fide concern about the friend request – as opposed to a desire to use it strategically
to advance her litigation – she would have had her counsel ask that Mr. Younger withdraw the
request, something that never happened here. As such, the balance of the equities lies heavily
against granting this tactical maneuver.
PLAINTIFF’S REQUEST TO SCHEDULE A HEARING FOR MR. YOUNGER TO
TESTIFY IS MISGUIDED AND INAPPROPRIATE
18. Plaintiff has also asked this Court and your affirmant to issue a briefing scheduling
with a hearing date for Mr. Younger to be questioned, which is just another abusive tactic in the
context of this litigation. So as not to belabor the points already made to this Court by reiterating
the aforementioned arguments, it is respectfully submitted that there is no legitimate contention
and no further action that needs to be taken with respect to Mr. Younger.
19. Not only is there no legal dispute, there is nothing for plaintiff to uncover or probe.
The only rationale for Mr. Younger to appear at a hearing would be to discover the reason for the
“friend request.” As the request was made inadvertently, there is absolutely no basis or value to
holding such a hearing, as Mr. Younger’s affidavit clearly speaks for itself.
20. Arguably, plaintiff has engaged in litigation tactics tantamount to an abuse of
process. “In its broadest sense, abuse of process may be defined as misuse or perversion of
regularly issued legal process for a purpose not justified by the nature of the process." Board of
Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local
1889, 343 N.E.2d 278 (1975). Here, plaintiff has not only attempted to damage the reputation of
Mr. Younger based solely on an already acknowledged inadvertent mistake by further engaging in
litigation practice on this issue, plaintiff has also tied up the Court’s resources regarding an issue
which was long resolved over nine (9) months ago.
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WHEREFORE, defendant Harvard Club respectfully requests that the Court deny
plaintiff’s application for a preliminary injunction and/or TRO in its entirety.
Dated: New York, New York
December 11, 2020
Respectfully Submitted,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP
By: Larry H. Lum
Larry H. Lum
Attorneys for Defendant
Harvard Club of New York City
150 East 42nd Street
New York, New York
(212) 490-3000
File #: 19052.00524
TO: Law Offices of Jeffrey K. Levine
Attorneys for Plaintiff
340 West 57th Street, Suite 11E
New York, New York 10019
(212) 721-9600
Wade Clark Mulcahy
Attorneys for Defendant
Faris Saah a/k/a Faris M. Saah
a/k/a Faris Mousa Saah a/k/a
Professor Faris Mousa Saah
180 Maiden Lane, Suite 901
New York, New York 10038
(212) 267-1900
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FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------ X VANESA LEVINE, Plaintiff, Index No.: 151119/2020 - against - AFFIRMATION IN OPPOSITION FARIS SAAH A/K/A FARIS M. SAAH A/K/A FARIS MOUSA SAAH A/K/A PROFESSOR FARIS MOUSA SAAH, and HARVARD CLUB OF NEW YORK CITY, Defendants. ----------------------------------------------------------------------- X LARRY H. LUM, an attorney duly licensed to practice law before the courts of the State of New York, hereby says and affirms the following to be true under the penalties of perjury: 1. I am a member of the law firm Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for defendant, HARVARD CLUB OF NEW YORK CITY (“Harvard Club”). As such, I am fully familiar with the facts and circumstances of this case based upon my review of the file maintained by my office. 2. This affirmation is submitted in opposition to plaintiff’s motion for a preliminary injunction restraining attorney Stephen P. Younger, Esq. (“Younger”) from contacting or communicating with plaintiff, Vanesa Levine. The instant application is without merit, wholly unnecessary and completely misdirected toward defendant Harvard Club to the extent that it seeks equitable relief against a third-party. As established by the attached affidavit of Stephen P. Younger (Exhibit “A”), the complained of Facebook “friend request” was unintentional and inadvertently initiated; it was immediately withdrawn upon Mr. Younger having been made aware that the request had been sent from his Facebook account; and he has not made any further contact 11367675v.1 1 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 with or sent any further social media notifications or requests to plaintiff since that time; nor does he have any desire or intention to do so ever again. PROCEDURAL HISTORY 3. As this Court is aware, this matter was removed to the Southern District of New York and thereafter remanded back to New York State Supreme Court on September 30, 2020. A copy of Hon. U.S. District Judge Koeltl’s Decision and Order regarding the remand is annexed hereto as Exhibit “B.” 4. On the Friday prior to the Monday deadline for the filing of the notice of removal, plaintiff had filed an Order to Show Cause seeking a preliminary injunction against Mr. Younger and a TRO pending the outcome of the motion. The parties appeared for an initial hearing for the Order to Show Cause before Honorable Barbara Jaffe, J.S.C., on March 9, 2020, where the Court was advised of the Notice of Removal filing with the Southern District that very morning, as well as the impending processing of the removal by the Clerk of the Court for New York County Supreme Court. At the hearing, the Court made it clear that the removal would render the injunction issue moot and did not address the merits of the application beyond issuing the interim relief of a TRO pending the removal. See attached as Exhibit “C” the minutes from the March 9, 2020 hearing before Justice Jaffe. Following removal, Judge Jaffe thereafter issued a Decision deeming the motion disposed. A copy of Judge Jaffe’s Decision and Order is annexed hereto as Exhibit “D.” 5. Upon removal, plaintiff did not renew her injunction request before the U.S. District Court. As of May 20, 2020 the motion was marked disposed by Judge Jaffe (Exhibit “D”). As plaintiff failed to renew the application, the request for an injunction together with the TRO, expired of its own terms. 11367675v.1 2 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 6. The Court has now reinstated the injunction motion in response to plaintiff’s request for a hearing; however, as discussed below, the application is devoid of any procedural and substantive merit and should be denied in its entirety. The instant motion is directed at defendant Harvard Club for activities by a Club Board Member on social media that would include personal interaction, as well as those that may have been performed on behalf of or for the benefit of the Harvard Club. Mr. Younger is not a party to this action and the Court has no legal basis to issue any relief against him. 7. In any event, there is no legitimate issue or dispute that the Facebook “friend request” from Mr. Younger to plaintiff Levine was inadvertent and unintentional. There is no confirmation received regarding a “friend request” as it is a one click of a button process. As soon as Mr. Younger was alerted to the mistaken “friend request” by a New York Post reporter, the request was immediately rescinded. This request was unknowingly sent in late February or early March 2020, more than nine (9) months ago. Mr. Younger has not since contacted, nor does he have any intention or desire to contact, plaintiff Levine (See Younger Affidavit annexed hereto as Exhibit “A”). There is thus no imminent irreparable harm that could come to plaintiff as a result of this long ago friend request. ARGUMENT PLAINTIFF’S MOTION IS DIRECTED TO HARVARD CLUB FOR ACTIONS OF A NON-PARTY 8. First, it should be noted that plaintiff’s motion is inappropriately directed to defendant Harvard Club. Mr. Younger is a member of the Harvard Club, sits on its Board and serves as one of its Vice Presidents. Mr. Younger is not and never has been a party to this action. As such, plaintiff’s application for relief, whether being viewed as against such third-party or 11367675v.1 3 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 against defendant Harvard Club, is improper in the context of the instant lawsuit and amounts to an abuse of process. 9. Procedurally, Mr. Younger is not a party to this action and thus is not before the Court. As a result, this motion is improper as against the Harvard Club and for that reason alone should be denied outright. None of the issues raised by plaintiff in the instant motion are issues that are remotely germane to the causes of action being asserted in this matter. This motion is evidence of the abusive nature of the plaintiff’s application regarding a non-party by using improper motion practice to unduly burden the Court and prolong this litigation. 10. Moreover, even assuming counsel for plaintiff presumes he has a basis to seek to preclude efforts by Mr. Younger to contact his client, the good faith basis for these purported concerns is belied by the instant application, which is not even directed at Mr. Younger himself. THERE IS ABSOLUTELY NO NEED FOR A PRELIMINARY INJUNCTION AND/OR TRO NOR HAS PLAINTIFF MET THE STANDARD TO OBTAIN SAME 11. As previously mentioned, Mr. Younger mistakenly and inadvertently sent plaintiff Levine a “friend request” on Facebook in late February or early March 2020. Immediately upon recognizing that the request had been sent, Younger withdrew the “friend request.” Plaintiff Levine did not accept the request, and there was zero communication between plaintiff Levine and Mr. Younger (Exhibit “A”). 12. Now, more than nine (9) months later, there has been zero communication or other contact between Mr. Younger and plaintiff Levine. What is more, Younger has confirmed that he has no intention or desire of ever contacting plaintiff Levine in any way, nor did he possess that intention when the friend request was inadvertently sent to her (Exhibit “A”). 13. To obtain a temporary restraining order or a preliminary injunction, the movant must establish: (1) a probability of success on the merits; (2) the danger of irreparable harm in the 11367675v.1 4 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 absence of an injunction; and (3) a balance of the equities in the movant’s favor. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 (1990). A temporary restraining order requires the additional showing that the danger of irreparable injury is “immediate.” See CPLR § 6313(a). Accordingly, “[t]emporary restraining orders are drastic remedies and should be used sparingly.” Silvestre v. De Loaiza, 12 Misc.3d 492, 493 (Sup. Ct. N.Y. Cty. 2006); see also Grumet v. Cuomo, 162 Misc.2d 913, 929 (Sup. Ct. Albany Cty. 1994) (citing Kuttner v. Cuomo, 147 A.D.2d 215, 218 (3rd Dept. 1989), aff’d 75 N.Y.2d 596 (1990)); 67A N.Y. Jur. 2d Injunctions § 59 (2017) (TRO’s “are remedies which should be used sparingly”). New York courts require that an applicant for a TRO meet the other standards required for preliminary injunctive relief, and like TROs, a preliminary injunction is a “drastic remedy” that will not be granted unless a clear right to it is established under the law and upon undisputed facts found in the moving papers, and the burden of showing an undisputed right rests upon the movant.” Anastasi v. Majopon Realty Corp., 181 A.D.2d 706, 707 (2d Dept. 1992) (internal citations omitted). The movant must demonstrate each element by “clear and convincing evidence.” EdCia Corp. v. McCormack, 44 A.D.3d 991, 993 (2d Dept. 2007). “Proof establishing these elements must be by affidavit and other competent proof, with evidentiary detail. If key facts are in dispute, the relief will be denied.” Faberge Int’l Inc. v. Di Pino, 109 A.D.2d 235, 240 (1st Dept. 1985) (citation omitted). Here, Plaintiff cannot satisfy her burden to meet either of these standards. 14. “Irreparable injury has been defined as “that which cannot be repaired, restored or adequately compensated in money, or where the compensation cannot be measured in money.” A party seeking a temporary restraining order must establish that a real threat of irreparable injury exists by factual demonstration, mere apprehension or conjectural injury, or injury of an inconsequential nature will not qualify as irreparable injury or justify the issuance of a temporary 11367675v.1 5 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 restraining order.” Bisca v. Bisca, 108 Misc.2d 227, 231, (Sup. Ct. Nassau Cty., 1981) (emphasis added); see also Valentine v. Schembri, 212 A.D.3d 371 (1st Dept. 1995) (holding that Correction officer was not entitled to temporary restraining order, pending determination of his application for preliminary injunction enjoining Department of Corrections from conducting disciplinary proceeding). 15. In the case at bar, there is absolutely no threat of irreparable injury, much less the requisite imminent one. In fact, the “friend request” was inadvertent by Mr. Younger’s sworn statement, and has never happened again. There is no ongoing issue nor has there been since the minute the “friend request” was withdrawn moments soon after it was sent. Moreover, given that Mr. Younger has voluntarily agreed to never again send any sort of “friend request” to plaintiff Levine again, or to initiate any other sort of communication with her, the need for a TRO or preliminary injunction is moot (Exhibit “A”). Simply put, plaintiff has not and cannot articulate any threat of “immediate and irreparable injury” that was and is posed by Mr. Younger’s inadvertent friend request sent more than nine (9) months ago. 16. Given that an inadvertent Facebook “friend request” gives rise to no danger of irreparable harm, the extreme nature of requesting this injunction and reinstating this motion is clearly a tactic being used by plaintiff to detract from the real issues in this case. To issue a TRO or injunction on a matter that is plainly moot would only be superfluous. 17. Moreover, Plaintiff cannot meet the requisite balance of the equities test for an injunction. Mr. Younger is a prominent attorney (as plaintiff’s counsel has previously acknowledged) and has an unblemished reputation that would be unnecessarily called into question if the requested injunction is granted. In contrast, when she learned of the friend request, plaintiff promptly informed a New York Post reporter who called Mr. Younger about it. Had plaintiff truly 11367675v.1 6 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 harbored a bona fide concern about the friend request – as opposed to a desire to use it strategically to advance her litigation – she would have had her counsel ask that Mr. Younger withdraw the request, something that never happened here. As such, the balance of the equities lies heavily against granting this tactical maneuver. PLAINTIFF’S REQUEST TO SCHEDULE A HEARING FOR MR. YOUNGER TO TESTIFY IS MISGUIDED AND INAPPROPRIATE 18. Plaintiff has also asked this Court and your affirmant to issue a briefing scheduling with a hearing date for Mr. Younger to be questioned, which is just another abusive tactic in the context of this litigation. So as not to belabor the points already made to this Court by reiterating the aforementioned arguments, it is respectfully submitted that there is no legitimate contention and no further action that needs to be taken with respect to Mr. Younger. 19. Not only is there no legal dispute, there is nothing for plaintiff to uncover or probe. The only rationale for Mr. Younger to appear at a hearing would be to discover the reason for the “friend request.” As the request was made inadvertently, there is absolutely no basis or value to holding such a hearing, as Mr. Younger’s affidavit clearly speaks for itself. 20. Arguably, plaintiff has engaged in litigation tactics tantamount to an abuse of process. “In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process." Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, 343 N.E.2d 278 (1975). Here, plaintiff has not only attempted to damage the reputation of Mr. Younger based solely on an already acknowledged inadvertent mistake by further engaging in litigation practice on this issue, plaintiff has also tied up the Court’s resources regarding an issue which was long resolved over nine (9) months ago. 11367675v.1 7 of 8 FILED: NEW YORK COUNTY CLERK 12/11/2020 03:51 PM INDEX NO. 151119/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/11/2020 WHEREFORE, defendant Harvard Club respectfully requests that the Court deny plaintiff’s application for a preliminary injunction and/or TRO in its entirety. Dated: New York, New York December 11, 2020 Respectfully Submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP By: Larry H. Lum Larry H. Lum Attorneys for Defendant Harvard Club of New York City 150 East 42nd Street New York, New York (212) 490-3000 File #: 19052.00524 TO: Law Offices of Jeffrey K. Levine Attorneys for Plaintiff 340 West 57th Street, Suite 11E New York, New York 10019 (212) 721-9600 Wade Clark Mulcahy Attorneys for Defendant Faris Saah a/k/a Faris M. Saah a/k/a Faris Mousa Saah a/k/a Professor Faris Mousa Saah 180 Maiden Lane, Suite 901 New York, New York 10038 (212) 267-1900 11367675v.1 8 of 8