Preview
FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
VINCENT SETTECASI and xxxxxxxx xxxx,
individually and on behalf of others similarly situated, Index No.: 154038/2018
Plaintiffs, AFFIRMATION OF
MICHAEL A. TOMPKINS,
-against- ESQ. IN SUPPORT OF
PLAINTIFFS’ MOTION TO
ARK RESTAURANTS CORP.; ARK BRYANT PARK, COMPEL A NON-PARTY’S
LLC; ARK BRYANT PARK SOUTHWEST LLC; COMPLIANCE WITH
MICHAEL WEINSTEIN; and any other related entities, SUBPOENA
Defendants.
MICHAEL A. TOMPKINS, an attorney duly admitted to the practice of law in the State
of New York, hereby affirms under penalty of perjury that the following is truthful and accurate:
1. I am an attorney with the law firm Leeds Brown Law, P.C., who represents the
Plaintiffs, including the Class of service workers. See Doc. No. 81 (preliminarily approving the
class wide settlement).
2. This affirmation is based upon my personal knowledge of the facts described
herein.
3. As detailed below, Plaintiffs request that pursuant to CPLR § 2308(b) this Court
order non-party Kourageous Kapitan LLC to comply with the subpoena detailed herein and/or
require the non-party to appear before Your Honor.
4. This application is the second request Plaintiffs are making for such relief, and this
application is made upon agreement of Plaintiffs and Defendants pursuant to the Settlement
Agreement. See Document No. 69, Settlement Agreement And Release. See Doc. No. 96 (denying
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such request without prejudice to renew).
RELEVANT FACTS
5. On Dec. 30, 2020, the Parties entered into Settlement Agreement to resolve this
matter as a class action. See Doc. No. 69. As part of that Settlement Agreement, the Parties agree
that Non-Party Kourageous Kapitan LLC maintain records that will assist the Parties in fulfilling
the terms of that agreement and advising Class Members of their right.
6. Specifically, as part of that process, Plaintiffs have attempted to obtain information
from the Non-Party Kourageous Kapitan LLC regarding the Class Members – including their
identities and related records as they are maintained by the Non-Party.
7. Plaintiffs have attempted to obtain that information via subpoena, which was served
on March 5, 2020. See Exhibit A; see also Doc. No. 61.
8. Defendants represented that they do not maintain the requested information.
9. According to Defendants’ counsel, Defendants have made several attempts to
contact Kourageous Kapitan LLC via email on Nov. 12, Nov. 30, Dec. 30, 2020, and Jan. 4, 2021
(see Exhibit B) and by telephone on Nov. 4, Nov. 9, Nov. 12, Dec. 1, and Dec. 30, 2020, with no
response.
10. Ultimately, the Non-Party Kourageous Kapitan LLC has not responded to
Plaintiffs’ formal request or Defendants’ communication.
11. Therefore, Plaintiffs respectfully request Your Honor’s judicial involvement in
ensuring compliance with the subpoena, by issuing an order compelling Kourageous Kapitan
LLC’s compliance and/or requiring their appearance before Your Honor.
AN ORDER COMPELLING COMPLIANCE IS PROPER
12. Under CPLR § 2308(b) a court of competent jurisdiction can issue an order
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compelling compliance with a non-judicial subpoena to have a non-complying individual or entity
to produce the requested documents. See generally Reuters Ltd. v. Dow Jones Telerate, 231 A.D.
2d 337 (1st Dept. 1997) (“a person who is served with a nonjudicial subpoena cannot be held in
contempt for failure to comply unless and until a court has issued an order compelling compliance,
which order has been disobeyed…”); see also Dias v. Consolidated Edison Co., 116 A.D.2d 453
(1st Dept. 1986) (finding the judicial subpoenas relevant to the claims and requiring an order of
compliance before issuing contempt); Quevedo v. Eichner, 813 N.Y.S.2d 310 (2d Dept. 2006).
13. “[I]f a person fails to comply with a subpoena which is not returnable in a court,
the issuer or the person on whose behalf the subpoena was issued may move in the supreme court
to compel compliance.” See CPLR § 2308(b).
14. To prevail on a motion to compel compliance, the moving party “must first
sufficiently state the ‘circumstances or reasons’ underlying the subpoena (either on the face of the
subpoena itself or in a notice accompanying it).” See Matter of Kapon v. Jock, 23 N.Y.3d. 32
(2014). The moving party “must satisfy the threshold requirement that the request is reasonably
calculated to yield information that is ‘material and necessary’—i.e., relevant—regardless of
whether discovery is sought from another party or a nonparty.” See Forman v. Henkin, 30 N.Y.3d
656 (2018).
15. Here, the records sought are relevant because (1) they concern information that will
identify the Class Members in the class action settlement, (2) they concern contact information for
such Class Members, (3) they concern information related to the work performed at Defendants’
catered events, and (4) the parties agree as to their relevance.
16. Therefore, the subpoena was lawful and proper.
17. In fact, the Non-Party Kourageous Kapitan LLC has not objected to the production
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of these documents; it has simply avoided its obligation to respond.
18. Plaintiffs respectfully request that Your Honor issue an order compelling the Non-
Party to produce the documents requested and/or appear at a conference before Your Honor. To
the extent that the Non-Party Kourageous Kapitan LLC fails to appear, Plaintiffs would thereafter
move for contempt including the issuance of a judicial warrant. See Reuters Ltd., 231 A.D. 2d at
341; see also Mackin v. Town of Hempstead, 2016 N.Y. Misc. LEXIS 6669, *1 (Sup. Ct. Nassau
Cty. Dec. 1, 2016).
REQUESTS MADE TO NON-PARTY
19. Based on records produced in this case, Plaintiffs understand that the Non-Party
Kourageous Kapitan LLC is in possession of records related to Class Members, including their
pay records, time records, invoices from events they worked, staffing sheets, and other data that
will allow the Parties to effectuate the purposed settlement. Therefore, the primary categories of
records sought include (see Ex. A):
a) A list of all individuals assigned by Kourageous Kapitan LLC or related
entities, including their address, telephone/cellphone number(s), email
address, and number of Ark Restaurant Corp. catered events worked by
each individual.
b) Pay records for these individuals maintained by Kourageous Kapitan
LLC or related entities.
c) Form W2s or Form 1099s provided to these individuals by Kourageous
Kapitan LLC or related entities.
d) Time records or staffing sheets for these individuals demonstrating
when work was performed in connection with Kourageous Kapitan LLC
or related entities.
e) Invoices received provided by Kourageous Kapitan LLC or related
entities to Ark Restaurants Corp., Ark Bryant Park, LLC, Ark Bryant
Park Southwest, LLC, or other related entities pursuant to the
assignment of these individuals to Ark Restaurants Corp. catered events.
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f) Emails or other correspondence to these individuals about job
assignments from Kourageous Kapitan LLC or related entities
ccñcerñing work at Ark Restaurant Corp. catered events.
WHEREFORE, Plaintiffs request that this court issue an order granting the following
relief: (1) to order Non-party Kourageous Kapitan LLC to comply with the subpoena and produce
all documents set forth in Exhibit A; (2) authorize Plaintiffs to move for contempt and/or a judicial
warrant under Judiciary Law § 753 if the Non-Party Kourageous Kapitan LLC fails to produce
documents and/or appear at any hearing; and (3) order any other relief this Court deems necessary
and appropriate.
Dated: May 24, 2021
Carle Place, New York
dich A. Tomp m
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Preview
FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VINCENT SETTECASI and xxxxxxxx xxxx, individually and on behalf of others similarly situated, Index No.: 154038/2018 Plaintiffs, AFFIRMATION OF MICHAEL A. TOMPKINS, -against- ESQ. IN SUPPORT OF PLAINTIFFS’ MOTION TO ARK RESTAURANTS CORP.; ARK BRYANT PARK, COMPEL A NON-PARTY’S LLC; ARK BRYANT PARK SOUTHWEST LLC; COMPLIANCE WITH MICHAEL WEINSTEIN; and any other related entities, SUBPOENA Defendants. MICHAEL A. TOMPKINS, an attorney duly admitted to the practice of law in the State of New York, hereby affirms under penalty of perjury that the following is truthful and accurate: 1. I am an attorney with the law firm Leeds Brown Law, P.C., who represents the Plaintiffs, including the Class of service workers. See Doc. No. 81 (preliminarily approving the class wide settlement). 2. This affirmation is based upon my personal knowledge of the facts described herein. 3. As detailed below, Plaintiffs request that pursuant to CPLR § 2308(b) this Court order non-party Kourageous Kapitan LLC to comply with the subpoena detailed herein and/or require the non-party to appear before Your Honor. 4. This application is the second request Plaintiffs are making for such relief, and this application is made upon agreement of Plaintiffs and Defendants pursuant to the Settlement Agreement. See Document No. 69, Settlement Agreement And Release. See Doc. No. 96 (denying 1 of 5 FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021 such request without prejudice to renew). RELEVANT FACTS 5. On Dec. 30, 2020, the Parties entered into Settlement Agreement to resolve this matter as a class action. See Doc. No. 69. As part of that Settlement Agreement, the Parties agree that Non-Party Kourageous Kapitan LLC maintain records that will assist the Parties in fulfilling the terms of that agreement and advising Class Members of their right. 6. Specifically, as part of that process, Plaintiffs have attempted to obtain information from the Non-Party Kourageous Kapitan LLC regarding the Class Members – including their identities and related records as they are maintained by the Non-Party. 7. Plaintiffs have attempted to obtain that information via subpoena, which was served on March 5, 2020. See Exhibit A; see also Doc. No. 61. 8. Defendants represented that they do not maintain the requested information. 9. According to Defendants’ counsel, Defendants have made several attempts to contact Kourageous Kapitan LLC via email on Nov. 12, Nov. 30, Dec. 30, 2020, and Jan. 4, 2021 (see Exhibit B) and by telephone on Nov. 4, Nov. 9, Nov. 12, Dec. 1, and Dec. 30, 2020, with no response. 10. Ultimately, the Non-Party Kourageous Kapitan LLC has not responded to Plaintiffs’ formal request or Defendants’ communication. 11. Therefore, Plaintiffs respectfully request Your Honor’s judicial involvement in ensuring compliance with the subpoena, by issuing an order compelling Kourageous Kapitan LLC’s compliance and/or requiring their appearance before Your Honor. AN ORDER COMPELLING COMPLIANCE IS PROPER 12. Under CPLR § 2308(b) a court of competent jurisdiction can issue an order 2 of 5 FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021 compelling compliance with a non-judicial subpoena to have a non-complying individual or entity to produce the requested documents. See generally Reuters Ltd. v. Dow Jones Telerate, 231 A.D. 2d 337 (1st Dept. 1997) (“a person who is served with a nonjudicial subpoena cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed…”); see also Dias v. Consolidated Edison Co., 116 A.D.2d 453 (1st Dept. 1986) (finding the judicial subpoenas relevant to the claims and requiring an order of compliance before issuing contempt); Quevedo v. Eichner, 813 N.Y.S.2d 310 (2d Dept. 2006). 13. “[I]f a person fails to comply with a subpoena which is not returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move in the supreme court to compel compliance.” See CPLR § 2308(b). 14. To prevail on a motion to compel compliance, the moving party “must first sufficiently state the ‘circumstances or reasons’ underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it).” See Matter of Kapon v. Jock, 23 N.Y.3d. 32 (2014). The moving party “must satisfy the threshold requirement that the request is reasonably calculated to yield information that is ‘material and necessary’—i.e., relevant—regardless of whether discovery is sought from another party or a nonparty.” See Forman v. Henkin, 30 N.Y.3d 656 (2018). 15. Here, the records sought are relevant because (1) they concern information that will identify the Class Members in the class action settlement, (2) they concern contact information for such Class Members, (3) they concern information related to the work performed at Defendants’ catered events, and (4) the parties agree as to their relevance. 16. Therefore, the subpoena was lawful and proper. 17. In fact, the Non-Party Kourageous Kapitan LLC has not objected to the production 3 of 5 FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021 of these documents; it has simply avoided its obligation to respond. 18. Plaintiffs respectfully request that Your Honor issue an order compelling the Non- Party to produce the documents requested and/or appear at a conference before Your Honor. To the extent that the Non-Party Kourageous Kapitan LLC fails to appear, Plaintiffs would thereafter move for contempt including the issuance of a judicial warrant. See Reuters Ltd., 231 A.D. 2d at 341; see also Mackin v. Town of Hempstead, 2016 N.Y. Misc. LEXIS 6669, *1 (Sup. Ct. Nassau Cty. Dec. 1, 2016). REQUESTS MADE TO NON-PARTY 19. Based on records produced in this case, Plaintiffs understand that the Non-Party Kourageous Kapitan LLC is in possession of records related to Class Members, including their pay records, time records, invoices from events they worked, staffing sheets, and other data that will allow the Parties to effectuate the purposed settlement. Therefore, the primary categories of records sought include (see Ex. A): a) A list of all individuals assigned by Kourageous Kapitan LLC or related entities, including their address, telephone/cellphone number(s), email address, and number of Ark Restaurant Corp. catered events worked by each individual. b) Pay records for these individuals maintained by Kourageous Kapitan LLC or related entities. c) Form W2s or Form 1099s provided to these individuals by Kourageous Kapitan LLC or related entities. d) Time records or staffing sheets for these individuals demonstrating when work was performed in connection with Kourageous Kapitan LLC or related entities. e) Invoices received provided by Kourageous Kapitan LLC or related entities to Ark Restaurants Corp., Ark Bryant Park, LLC, Ark Bryant Park Southwest, LLC, or other related entities pursuant to the assignment of these individuals to Ark Restaurants Corp. catered events. 4 of 5 FILED: NEW YORK COUNTY CLERK 05/24/2021 12:03 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/24/2021 f) Emails or other correspondence to these individuals about job assignments from Kourageous Kapitan LLC or related entities ccñcerñing work at Ark Restaurant Corp. catered events. WHEREFORE, Plaintiffs request that this court issue an order granting the following relief: (1) to order Non-party Kourageous Kapitan LLC to comply with the subpoena and produce all documents set forth in Exhibit A; (2) authorize Plaintiffs to move for contempt and/or a judicial warrant under Judiciary Law § 753 if the Non-Party Kourageous Kapitan LLC fails to produce documents and/or appear at any hearing; and (3) order any other relief this Court deems necessary and appropriate. Dated: May 24, 2021 Carle Place, New York dich A. Tomp m 5 of 5