Preview
FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X ——
——X
PATRICIA ROMANO, Index No. 507940/2016
Plaintiff,
- against -
SHIEL MEDICAL LABORATORY, INC. a/k/a BIM
MEDICAL, INC., SPECTRA LABORATORIES, INC.,
and JACK BASCH,
Defendants.
------------------------------------------------------------------------X
DEFENDANTS SHIEL MEDICAL LABORATORY, INC. a/k/a
BIM MEDICAL, INC.'S AND JACK BASCH'S REPLY IN SUPPORT
OF THEIR MOTION FOR SUMMARY JUDGMENT
GOLDBERG WEPRIN FINKEL
GOLDSTEIN LLP
Kevin J. Nash, Esq.
Attorneys for De fendants Shiel
Medical Laboratory, Inc. a/k/a BIM
Medical, Inc. and Jack Basch
22nd
1501 Broadway, FlOOr
New York, New York 10036
(212) 221-5700
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TABLE OF CONTENTS
P_age
TABLE OF AUTHORITIES...............................................................................................
................................................................................„... i
PRELIMINARY STATEMENT .........................................................................................1 1
ARGUMENT.......................................................................................................................2 , .. .. ..,.. ...,..2
POINT I. Plaintiff's Attempts to Avoid Summary Judgment Through
Self-Serving Statements Should be Rejected...........................................................2
. ........................2
POINT II. Judgment Should be Granted the Quasi-
Summary Dismissing
Contract Causes of Action.....................................................................................10 ...10
POINT III. The Claims against Basch Personally Should be Dismissed As
He Acted Entirely Within His Corporate Capacity................................................13 . .... ....
POINT IV. There is No Basis to Deny Summary Judgment Because the
Pleadings Were not Appended to the Initial Motion Papers..................................14 ......
CONCLUSION..................................................................................................................15
1
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TABLE OF AUTHORITIES
Cases
Pagte
6243 Jericho Really Corp. v. AutoZone, Inc., 27 A.D.3d 447 (2d Dep't 2006)..................7
...,..............7
..................7
Ashmore v. CGI Group, Inc., 2012 WL 2148999 (S.D.N.Y. 2012)..................................12
...
Avalon Gardens Rehab. & Health Care Ctr., LLC v. Morsello, 97 A.D.3d 611
(2d Dep't 2012)..................................................................................................................14
..
Bombard v. Xitenel, Inc., 32 Misc.3d 1230(A) (Sup. Ct. Nassau Co. 2011).......................9
.......................9
Camarillo v. Sandoval, 90 A.D.3d 593 (2d Dep't 2011).....................................................7 ,7
.7
Canarick v. Cicarelli, 46 A.D.3d 587 (2d Dep't 2007).......................................................3
.
Cohen v. Lehman Bros. Bank, FSB, 273 F. a34PP
Supp. 2d 524 (S.D.N.Y. ~ ~ 2003)......................12
~~~ ~~" ~~
Ehrlich v. Am. Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 (1970).........................2
.........................2
(4th
Finley v. Erie & Niagara Ins. Ass'n, 2018 WL 3007530 (4 Dep't June 15, 2018) ......5, 9
(13
Frazier v. Hertz Vehicles, LLC, 78 A.D.3d 767 Dep't 2010)........................................7 .7
Garcia-Rosales v. Bais Rochel Resort, 100 A.D.3d 687 (2d Dep't 2012) ..........................4
Juseinoski v. New York Hospital, 29 A.D.3d 636 (2d Dep't 2006)...................................12
...................................12
Long Island Pine Barren Society, Inc. v. County of Suffolk, 122 A.D.3d 688
(2d Dep't 2014)..................................................................................................................14
Lopes v. Ross, 126 A.D.3d 766 (2d Dep't 2015)...............................................................13
. ..13
(1st
Manhattan Film, Inc. v. Entm't Guarantees, Ltd., 156 A.D.2d 152 Dep't 1989)...... 2-3
Marino v. Oakwood Care Center, 5 A.D.3d 740 (2d Dep't 2004)....................................12
Mezger v. Wyndham Homes, Inc., 81 A.D.3d 795 (2d Dep't 2011)....................................3
.
Morrison v. Sam Snead Sch. of Golf of New York, Inc., 13 A.D.2d 986
(2d Dep't 1961)..................................................................................................................13
..
(1st
Pandian v. New York Health and Hospitals Corp., 54 A.D.3d 590 Dep't 2008)........14
11
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Cases, Cont'd
P_age
Presler v. Domestic and Foreign Missionary Society of Protestant Episcopal
Church in U.S., 113 A.D.3d 409 (1st Dep't 2014)............................................................12
(13t
Ramade v. C.B. Contracting Corp., 127 A.D.3d 596 Dep't 2015)..............................14 .14
Robinson v. Munn, 238 N.Y. 40, 43 (1924).......................................................................11 .11
Smalls v. Adams, 118 A.D.3d 693 (2d Dep't 2014).............................................................3
Sotheby Intern. Realty, Inc., 2014 WL 626968 (S.D.N.Y. 2014)......................................12
(15t
Studio A Showroom, LLC v. Yoon, 99 A.D.3d 632 Dep't 2012).................................15 .15
,15
The H Co. Ltd. v. Michael Kors Stores, LLC, 2010 WL 231629
(Sup. Ct. Nassau Co. Jan. 7 2010)...................................................................................3,
........ . 5
Webb v. Greater New York Auto Dealers Ass 'n, Inc., 144 A.D.3d 1136
(2d Dep't 2016)..................................................................................................................12
Zapata v. Buitriago, 107 A.D.3d 977 (2d Dep't 2013)........................................................7
Statutes
P_age
CPLR 3212 ..............................................................................................................1, 14, 15
Treatises
P_ay e
Restatement (Second) of Contract §27..............................................................................10
..... .10
nl
111
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This Reply Memorandum of Law is respectfully submitted on behalf of the
Laboratory"
defendants, Shiel Medical Laboratory, Inc. ("Shiel Laboratory") and Jack Basch ("Basch") (Shiel
'"Defendants"
Laboratory and Basch are collectively, the "Defendants"), in response to the opposition papers
("Plaintiff" "Romano"
submitted by plaintiff Patricia Romano or "Romano") and in further support of the
Defendants'
motion pursuant to CPLR 3212 for summary judgment dismissing the Complaint.
L PRELIMINARY STATEMENT
Romano has filed opposition papers that are long on rhetoric, but lack any cogent
legal argument to legitimately explain the fundamental flaw in Plaintiff's claim; that is, if an
"oral"
agreement existed since March 2007, as Romano now contends, why did the parties then
each retain counsel and exchange a dozen term sheets over an ensuing eighteen (18) month
period in 2009-2010, relating to an employment contract that was never finalized, all the while
never once referencing the existence of the purported binding prior oral contract. The answer to
this question is obvious: there was never an actual agreement reached on an acquisition bonus in
2007 to begin with, or an agreement reached thereafter in 2009-2010, and Plaintiff's complaint
seeking to enforce one must now be dismissed on summary judgment.
Tellingly, Romano's affidavit is accompanied by a Memorandum of Law which
cites only a handful of cases, and fails to provide legal grounds to overrule the long established
Defendants'
principles of law supporting the core contention that, given the documentary
evidence confirming that no agreement was reached, Romano's uncorroborated statements to the
contrary do not raise a genuine issue of fact.
Indeed, Romano's self-serving statements are directly contradicted by numerous
pieces of documentary evidence, including Romano's own e-mails, all of which negate the
notion of the existence of a prior agreement. The actions of the parties in attempting to negotiate
1
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an employment agreement (albeit unsuccessfully) are completely antithetical to Romano's
complaint.
"spin"
For all of Romano's efforts to the conduct of the parties into some kind of
oral agreement, she cannot overcome (i) the fact that the written drafts contained a legend
specifically stating that there would be no agreement until there was a signed contract, which
never happened; (ii) that Romano's current affidavit relating to the alleged oral agreement are
inconsistent with her own emails and prior deposition testimony; and (iii) the utter failure of
Romano or her attorney, David Harrison, Esq., to even suggest, let alone definitively state in any
document exchanged over months of negotiations that the parties already had an oral agreement
dating back to 2007.
II. LEGAL ARGUMENT
Point One:
Plaintiff's Attempts to Avoid Summary Judgment Through
Self-Serving Statements Should be Rejected
Defendants'
Motion is predicated upon the well-established principle that
summary judgment cannot be defeated by conclusory or uncorroborated self-serving statements
"incredible"
designed to create "feigned issues of fact, or claims made by the opposing party. In
other words, to create a genuine issue of fact, there must be something more in the record to
support the contention than a unilateral statement by a biased party. See, Ehrlich v. Am.
("
Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259 (1970) ("In opposing plaintiffs motion
for summary judgment, it was incumbent upon the defendants to do more than merely raise an
issue of consideration. It was essential for the defendants, in claiming absence of consideration,
to state their version of the facts in evidentiary form. 'Bald conclusory assertions, even if
believable, are not enough.'"); Manhattan Film, Inc. v. Entm't Guarantees, Ltd., 156 A.D.2d 152,
2
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(ISt ("Defendants'
153 Dep't 1989) conclusory and unsupported statement that James Swann, the
chief executive officer of Entertainment Guarantees, lacked the authority to act on the company's
behalf is insufficient to create a viable issue of fact and, indeed, is contradicted by substantial
documentary evidence in the record").
Fundamentally, Romano's effort to create an issue of fact fails to address the key
parties'
points made by the Defendants that the subsequent dealings, negotiations, exchange of a
dozen unsigned term sheets and numerous e-mails proposing potential bonus scenarios, without
once coming to an actual agreement simply cannot be reconciled with Romano's fanciful claims
in opposition. Moreover, Romano fails to address the cases cited by Defendants with respect to
the import of her facially invalid statements made to create "feigned issues of fact", including
Smalls v. Adams, 118 A.D.3d 693 (2d Dep't 2014); Mezger v. Wyndham Homes, Inc., 81 A.D.3d
795 (2d Dep't 2011); The H Co. Ltd. v. Michael Kors Stores, LLC., 2010 WL 231629 (Sup. Ct.
Nassau Co. Jan. 7, 2010); Canarick v. Cicarelli, 46 A.D.3d 587 (2d Dep't 2007).
In her new version of events, Romano contends that the negotiations were merely
an attempt to execute a written document to supersede the earlier oral agreement. Thus,
according to Romano, any inconsistencies between the proposed terms of the drafts and the
supposedly pre-existing oral agreement can be reconciled by Romano's claim that she "remained
willing to exclude the first $32 million of any sale price from the calculation of my bonus in
order to get something in writing, I would not make any further concession regarding the flat
to."
10% we already had agreed [Paragraph 54 of Romano's Affidavit in opposition to the
Affidavit"
Motion (the "Romano Affidavit")].
There is nothing in any document to support this type of revisionist history, and
Romano glaringly fails to account for the many written proposals and counterproposals
3
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parties'
paries'
exchanged by the respective counsel (including David Harrison, Esq., representing
parties'
Romano) that recognize a final agreement was never reached. Even at that, the
incomplete discussions and exchange of proposals in 2009-2010 only related to a possible bonus
to be calculated on a sliding scale that was otherwise limited by a cap.
At bottom, despite Romano's manufactured, after-the-fact protestations, the
Defendants'
contemporaneous documentary evidence attached to motion confirms that no
agreement was reached in 2007, as acknowledged by Romano in her e-mails, including one
"3" Affidavit"
written in late 2008 [Exhibit to the Affidavit of Jack Basch (the "Basch Affidavit"),
2012¹ "5"
NYSCEF No. 60]; an undated e-mail from sometime in 2012 [Exhibit to the Basch
"4"
Affidavit, NYSCEF No. 62]; and a September 12, 2011 e-mail [Exhibit to the Basch
Affidavit [NYSCEF No. 61]. In each of these e-mails, Romano discusses terms for a proposed
bonus, recognizing that the matter was still open, and most importantly, without once referencing
the existence of a prior oral agreement.
In view of the actual documentary evidence, the Romano Affidavit is nothing
more than an effort to overcome Romano's prior contradictory statements through the creation of
"feigned issues of fact". See, e.g., Garcia-Rosales v. Bais Rochel Resort, 100 A.D.3d 687, 687
(2d Dep't 2012)("The plaintiffs affidavit also presented feigned issues of fact designed to avoid
the consequences of his earlier deposition testimony, and was likewise insufficient to raise a
triable issue of fact").
Plaintiff argues that the Defendants are asking the Court to determine Romano's
credibility, rather than accept her allegations as true, as the Court is required to do when
considering summary judgment. However, the Court is not required to accept hook, line and
¹ "1"
See, Exhibit to the Basch Affidavit at pp. 200-201 for Romano testimony on date of e-mail.
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sinker every possible statement made by the non-moving party, especially when those statements
are unsupported, and indeed contradicted by the evidence. See, e.g., Finley v. Erie 4 Niagara
(4"' ("
Ins. Ass'n, 2018 WL 3007530, at *1 Dep't June 15, 2018) ("Neither this Court nor the
motion court is required to shut its eyes to the patent falsity of a defense. Here, we conclude that
the court properly determined that plaintiffs deposition testimony was self-serving and
incredible on these points, permitting summary judgment in favor of defendant.") (internal
quotation marks and citations omitted); The H Co. Ltd. v. Michael Kors Stores, LLC, supra, 2010
("
WL 231629 ("Conclusory and unsupported testimony lacks probative value and is insufficient to
raise a triable issue of fact especially where such testimony is contradicted by documentary
evidence in the record.")
Preview
FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X —— ——X PATRICIA ROMANO, Index No. 507940/2016 Plaintiff, - against - SHIEL MEDICAL LABORATORY, INC. a/k/a BIM MEDICAL, INC., SPECTRA LABORATORIES, INC., and JACK BASCH, Defendants. ------------------------------------------------------------------------X DEFENDANTS SHIEL MEDICAL LABORATORY, INC. a/k/a BIM MEDICAL, INC.'S AND JACK BASCH'S REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP Kevin J. Nash, Esq. Attorneys for De fendants Shiel Medical Laboratory, Inc. a/k/a BIM Medical, Inc. and Jack Basch 22nd 1501 Broadway, FlOOr New York, New York 10036 (212) 221-5700 1 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 TABLE OF CONTENTS P_age TABLE OF AUTHORITIES............................................................................................... ................................................................................„... i PRELIMINARY STATEMENT .........................................................................................1 1 ARGUMENT.......................................................................................................................2 , .. .. ..,.. ...,..2 POINT I. Plaintiff's Attempts to Avoid Summary Judgment Through Self-Serving Statements Should be Rejected...........................................................2 . ........................2 POINT II. Judgment Should be Granted the Quasi- Summary Dismissing Contract Causes of Action.....................................................................................10 ...10 POINT III. The Claims against Basch Personally Should be Dismissed As He Acted Entirely Within His Corporate Capacity................................................13 . .... .... POINT IV. There is No Basis to Deny Summary Judgment Because the Pleadings Were not Appended to the Initial Motion Papers..................................14 ...... CONCLUSION..................................................................................................................15 1 2 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 TABLE OF AUTHORITIES Cases Pagte 6243 Jericho Really Corp. v. AutoZone, Inc., 27 A.D.3d 447 (2d Dep't 2006)..................7 ...,..............7 ..................7 Ashmore v. CGI Group, Inc., 2012 WL 2148999 (S.D.N.Y. 2012)..................................12 ... Avalon Gardens Rehab. & Health Care Ctr., LLC v. Morsello, 97 A.D.3d 611 (2d Dep't 2012)..................................................................................................................14 .. Bombard v. Xitenel, Inc., 32 Misc.3d 1230(A) (Sup. Ct. Nassau Co. 2011).......................9 .......................9 Camarillo v. Sandoval, 90 A.D.3d 593 (2d Dep't 2011).....................................................7 ,7 .7 Canarick v. Cicarelli, 46 A.D.3d 587 (2d Dep't 2007).......................................................3 . Cohen v. Lehman Bros. Bank, FSB, 273 F. a34PP Supp. 2d 524 (S.D.N.Y. ~ ~ 2003)......................12 ~~~ ~~" ~~ Ehrlich v. Am. Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 (1970).........................2 .........................2 (4th Finley v. Erie & Niagara Ins. Ass'n, 2018 WL 3007530 (4 Dep't June 15, 2018) ......5, 9 (13 Frazier v. Hertz Vehicles, LLC, 78 A.D.3d 767 Dep't 2010)........................................7 .7 Garcia-Rosales v. Bais Rochel Resort, 100 A.D.3d 687 (2d Dep't 2012) ..........................4 Juseinoski v. New York Hospital, 29 A.D.3d 636 (2d Dep't 2006)...................................12 ...................................12 Long Island Pine Barren Society, Inc. v. County of Suffolk, 122 A.D.3d 688 (2d Dep't 2014)..................................................................................................................14 Lopes v. Ross, 126 A.D.3d 766 (2d Dep't 2015)...............................................................13 . ..13 (1st Manhattan Film, Inc. v. Entm't Guarantees, Ltd., 156 A.D.2d 152 Dep't 1989)...... 2-3 Marino v. Oakwood Care Center, 5 A.D.3d 740 (2d Dep't 2004)....................................12 Mezger v. Wyndham Homes, Inc., 81 A.D.3d 795 (2d Dep't 2011)....................................3 . Morrison v. Sam Snead Sch. of Golf of New York, Inc., 13 A.D.2d 986 (2d Dep't 1961)..................................................................................................................13 .. (1st Pandian v. New York Health and Hospitals Corp., 54 A.D.3d 590 Dep't 2008)........14 11 3 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 Cases, Cont'd P_age Presler v. Domestic and Foreign Missionary Society of Protestant Episcopal Church in U.S., 113 A.D.3d 409 (1st Dep't 2014)............................................................12 (13t Ramade v. C.B. Contracting Corp., 127 A.D.3d 596 Dep't 2015)..............................14 .14 Robinson v. Munn, 238 N.Y. 40, 43 (1924).......................................................................11 .11 Smalls v. Adams, 118 A.D.3d 693 (2d Dep't 2014).............................................................3 Sotheby Intern. Realty, Inc., 2014 WL 626968 (S.D.N.Y. 2014)......................................12 (15t Studio A Showroom, LLC v. Yoon, 99 A.D.3d 632 Dep't 2012).................................15 .15 ,15 The H Co. Ltd. v. Michael Kors Stores, LLC, 2010 WL 231629 (Sup. Ct. Nassau Co. Jan. 7 2010)...................................................................................3, ........ . 5 Webb v. Greater New York Auto Dealers Ass 'n, Inc., 144 A.D.3d 1136 (2d Dep't 2016)..................................................................................................................12 Zapata v. Buitriago, 107 A.D.3d 977 (2d Dep't 2013)........................................................7 Statutes P_age CPLR 3212 ..............................................................................................................1, 14, 15 Treatises P_ay e Restatement (Second) of Contract §27..............................................................................10 ..... .10 nl 111 4 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 This Reply Memorandum of Law is respectfully submitted on behalf of the Laboratory" defendants, Shiel Medical Laboratory, Inc. ("Shiel Laboratory") and Jack Basch ("Basch") (Shiel '"Defendants" Laboratory and Basch are collectively, the "Defendants"), in response to the opposition papers ("Plaintiff" "Romano" submitted by plaintiff Patricia Romano or "Romano") and in further support of the Defendants' motion pursuant to CPLR 3212 for summary judgment dismissing the Complaint. L PRELIMINARY STATEMENT Romano has filed opposition papers that are long on rhetoric, but lack any cogent legal argument to legitimately explain the fundamental flaw in Plaintiff's claim; that is, if an "oral" agreement existed since March 2007, as Romano now contends, why did the parties then each retain counsel and exchange a dozen term sheets over an ensuing eighteen (18) month period in 2009-2010, relating to an employment contract that was never finalized, all the while never once referencing the existence of the purported binding prior oral contract. The answer to this question is obvious: there was never an actual agreement reached on an acquisition bonus in 2007 to begin with, or an agreement reached thereafter in 2009-2010, and Plaintiff's complaint seeking to enforce one must now be dismissed on summary judgment. Tellingly, Romano's affidavit is accompanied by a Memorandum of Law which cites only a handful of cases, and fails to provide legal grounds to overrule the long established Defendants' principles of law supporting the core contention that, given the documentary evidence confirming that no agreement was reached, Romano's uncorroborated statements to the contrary do not raise a genuine issue of fact. Indeed, Romano's self-serving statements are directly contradicted by numerous pieces of documentary evidence, including Romano's own e-mails, all of which negate the notion of the existence of a prior agreement. The actions of the parties in attempting to negotiate 1 5 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 an employment agreement (albeit unsuccessfully) are completely antithetical to Romano's complaint. "spin" For all of Romano's efforts to the conduct of the parties into some kind of oral agreement, she cannot overcome (i) the fact that the written drafts contained a legend specifically stating that there would be no agreement until there was a signed contract, which never happened; (ii) that Romano's current affidavit relating to the alleged oral agreement are inconsistent with her own emails and prior deposition testimony; and (iii) the utter failure of Romano or her attorney, David Harrison, Esq., to even suggest, let alone definitively state in any document exchanged over months of negotiations that the parties already had an oral agreement dating back to 2007. II. LEGAL ARGUMENT Point One: Plaintiff's Attempts to Avoid Summary Judgment Through Self-Serving Statements Should be Rejected Defendants' Motion is predicated upon the well-established principle that summary judgment cannot be defeated by conclusory or uncorroborated self-serving statements "incredible" designed to create "feigned issues of fact, or claims made by the opposing party. In other words, to create a genuine issue of fact, there must be something more in the record to support the contention than a unilateral statement by a biased party. See, Ehrlich v. Am. (" Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259 (1970) ("In opposing plaintiffs motion for summary judgment, it was incumbent upon the defendants to do more than merely raise an issue of consideration. It was essential for the defendants, in claiming absence of consideration, to state their version of the facts in evidentiary form. 'Bald conclusory assertions, even if believable, are not enough.'"); Manhattan Film, Inc. v. Entm't Guarantees, Ltd., 156 A.D.2d 152, 2 6 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 (ISt ("Defendants' 153 Dep't 1989) conclusory and unsupported statement that James Swann, the chief executive officer of Entertainment Guarantees, lacked the authority to act on the company's behalf is insufficient to create a viable issue of fact and, indeed, is contradicted by substantial documentary evidence in the record"). Fundamentally, Romano's effort to create an issue of fact fails to address the key parties' points made by the Defendants that the subsequent dealings, negotiations, exchange of a dozen unsigned term sheets and numerous e-mails proposing potential bonus scenarios, without once coming to an actual agreement simply cannot be reconciled with Romano's fanciful claims in opposition. Moreover, Romano fails to address the cases cited by Defendants with respect to the import of her facially invalid statements made to create "feigned issues of fact", including Smalls v. Adams, 118 A.D.3d 693 (2d Dep't 2014); Mezger v. Wyndham Homes, Inc., 81 A.D.3d 795 (2d Dep't 2011); The H Co. Ltd. v. Michael Kors Stores, LLC., 2010 WL 231629 (Sup. Ct. Nassau Co. Jan. 7, 2010); Canarick v. Cicarelli, 46 A.D.3d 587 (2d Dep't 2007). In her new version of events, Romano contends that the negotiations were merely an attempt to execute a written document to supersede the earlier oral agreement. Thus, according to Romano, any inconsistencies between the proposed terms of the drafts and the supposedly pre-existing oral agreement can be reconciled by Romano's claim that she "remained willing to exclude the first $32 million of any sale price from the calculation of my bonus in order to get something in writing, I would not make any further concession regarding the flat to." 10% we already had agreed [Paragraph 54 of Romano's Affidavit in opposition to the Affidavit" Motion (the "Romano Affidavit")]. There is nothing in any document to support this type of revisionist history, and Romano glaringly fails to account for the many written proposals and counterproposals 3 7 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 parties' paries' exchanged by the respective counsel (including David Harrison, Esq., representing parties' Romano) that recognize a final agreement was never reached. Even at that, the incomplete discussions and exchange of proposals in 2009-2010 only related to a possible bonus to be calculated on a sliding scale that was otherwise limited by a cap. At bottom, despite Romano's manufactured, after-the-fact protestations, the Defendants' contemporaneous documentary evidence attached to motion confirms that no agreement was reached in 2007, as acknowledged by Romano in her e-mails, including one "3" Affidavit" written in late 2008 [Exhibit to the Affidavit of Jack Basch (the "Basch Affidavit"), 2012¹ "5" NYSCEF No. 60]; an undated e-mail from sometime in 2012 [Exhibit to the Basch "4" Affidavit, NYSCEF No. 62]; and a September 12, 2011 e-mail [Exhibit to the Basch Affidavit [NYSCEF No. 61]. In each of these e-mails, Romano discusses terms for a proposed bonus, recognizing that the matter was still open, and most importantly, without once referencing the existence of a prior oral agreement. In view of the actual documentary evidence, the Romano Affidavit is nothing more than an effort to overcome Romano's prior contradictory statements through the creation of "feigned issues of fact". See, e.g., Garcia-Rosales v. Bais Rochel Resort, 100 A.D.3d 687, 687 (2d Dep't 2012)("The plaintiffs affidavit also presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and was likewise insufficient to raise a triable issue of fact"). Plaintiff argues that the Defendants are asking the Court to determine Romano's credibility, rather than accept her allegations as true, as the Court is required to do when considering summary judgment. However, the Court is not required to accept hook, line and ¹ "1" See, Exhibit to the Basch Affidavit at pp. 200-201 for Romano testimony on date of e-mail. 8 of 19 FILED: KINGS COUNTY CLERK 06/29/2018 03:47 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 06/29/2018 sinker every possible statement made by the non-moving party, especially when those statements are unsupported, and indeed contradicted by the evidence. See, e.g., Finley v. Erie 4 Niagara (4"' (" Ins. Ass'n, 2018 WL 3007530, at *1 Dep't June 15, 2018) ("Neither this Court nor the motion court is required to shut its eyes to the patent falsity of a defense. Here, we conclude that the court properly determined that plaintiffs deposition testimony was self-serving and incredible on these points, permitting summary judgment in favor of defendant.") (internal quotation marks and citations omitted); The H Co. Ltd. v. Michael Kors Stores, LLC, supra, 2010 (" WL 231629 ("Conclusory and unsupported testimony lacks probative value and is insufficient to raise a triable issue of fact especially where such testimony is contradicted by documentary evidence in the record.")