Motion for Modification in William Slepoy Derivatively o/b/o Lyncrest Gardens Co., LLC, Stephen Gardner Derivatively o/b/o Lyncrest Gardens Co., LLC v. Andrew Slepoy, Lyncrest Gardens Co., Llc Nominal Defendant, Kent Leffel, Herbert Slepoy Corporation| Trellis.Law

On June 12, 2020 a Motion-Secondary was filed involving a dispute between Stephen Gardner Derivatively O B O Lyncrest Gardens Co., Llc, Stephen Gardner Derivatively O B O Lyncrest Gardens Co., Llc, William Slepoy Derivatively O B O Lyncrest Gardens Co., Llc, William Slepoy Derivatively O B O Lyncrest Gardens Co., Llc, and Andrew Slepoy, Herbert Slepoy Corporation, Kent Leffel, Lyncrest Gardens Co., Llc Nominal Defendant, Lyncrest Gardens Co., Llc Nominal Defendant, for Commercial Division in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
ween eee eens Index No.: 605758/ 2020
WILLIAM SLEPOY derivatively on behalf of
LYNCREST GARDENSCO.,LLC and
STEPHEN GARDNER derivatively on behalf of
LYNCREST GARDENSCO., LLC Assigned to:
Hon. Timothy S. Driscoll
Plaintiffs,
Mot. Seq. No. 2
-against-
Return Date: June 2, 2021
ANDREW SLEPOY, KENT LEFFEL, HERBERT SLEPOY
CORPORATION,

Defendants,
-and-

LYNCREST GARDENSCO.,LLC,

Nominal Defendant.
ween eee eens

DEFENDANTS ANDREW SLEPOY AND HERBERT SLEPOY CORPORATION’S
MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

CERTILMAN BALIN ADLER& HYMAN, LLP
Attorneys for D efendants Andrew Slepoy and
H erbert Slepoy Corporation
90 Merrick Avenue, 9th Floor
East Meadow, New York 11554
(516) 296-7000

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TABLE OF CONTENTS

TABLE OF AUTHORITIES... I

PRELIMINARY STATEMENT suenenaesueseesauseesuessueanennesaesneseesauseesensneaeeanensesuessesauseesnensneseessenaesees

RELEVANT FACTUAL BACKGROUND susnesaneanennennesneseesauseesueesneanennesaesneseesauseesnensneaeeasenaesoey

ARGUMENT suennennesneseenauseesueeaneanesnesnesuesuenausnesnaesneseeseessesuessensueneeneesneseesaeseesuensunsneaeensesneseesaeneesnenss, 10

POINT ONE susnensueanenenaesneneesauseesuensusaneneenaesneneesaessesuessunaueneeseesneseesaesaesuessenaueaesneesneseeseensessessenansaess 10

THE SLEPOY DEFENDANTS CANNOT BE COMPELLED TO PRODUCE
NONEXISTENT DOCUMENTS OR THOSE WITHOUT THEIR
POSSESSION, CUSTODY, OR CONTROL

POINT TWO suennennesneseenauseesueeaneanesnesnesuesuenausnesnaesneseeseessesuessensueneeneesneseesaeseesuensunsneaeensesneseesaeneesnenss, 14

SANCTIONS ARE INAPPROPRIATE, UNWARRANTED, AND
UNMERITED

CONCLUSION suennenausneneesaennesuensunaneneesaesneneesaesnesuensunaueneseesneseeseesnesuessenausaesneesseaneaneseesnessesauseesnesas, 16

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TABLE OF AUTHORITIES

PAGE(S)
CASES

BRUMMER V.WEY,
2017 WL 2494434 (SUP. CT. N.Y. COUNTY 2017) .........00+ seveesseeeneeelO, 13

CAPITAL ONE EQUIP. FIN. CORP V THE OSG CORP.,
2018 WL 11244467 (SUP. CT. NASSAU COUNTY 2018)........ 13

JACKSON V.OPENCOMMUNICATIONS OMNIMEDIA, LLC,
147 A.D.3D 709, 49 N.Y.S.3D 389 (1ST DEP’T 2017)...........00 13

LIPCO ELEC. CORP. V.ASG CONSULTING CORP.,
117 A.D.3D 687, 985 N.Y.S.2D 594 (2D DEP’T 2014). 12,15

MATTER OF SCHAEFER,
2013 WL 1562592 (SUR. CT., NASSAU CO. 2013)... 10

NAIMAN V FAIR TRADE ACQUISITION CORP.,
152 AD3D 779(2D DEP’T 2017) 13

ORZECH EX REL.ORZECH V. SMITH,
12A.D.3D 1150, 785 N.Y.S.2D 643 (2004)... 10

PARK SIDE CONSTR. CONTRACTORS, INC. V. BRYAN'S QUALITY PLUS, LLC,
156A.D.3D 804, 68N.Y.S.3D 90(2D DEP’T 2017)........... 15

RICHARD V.KERWIN,
2016 WL 6781083 (SUP. CT., MONROE CO. 2016) 10

ROSADO V.MERCEDES-BENZ OF NORTH,
103 A.D.2D 395 (2D DEP’T 1984)............. 10

SUFFOLK P.E.T.MGMT., LLC V.ANAND
105 A.D.3D 462, 962 N.Y.S.2D 138 (1ST DEP’T 2013)... 13

WMC MORTG. CORP.V VANDERMULEN
32 MISC 3D 1206...........0+ 12

RULES

CPLR 3120. 10
n
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CPLR § 3126... 15

CPLR §§ 3124 AND 3126..............

REGULATIONS

22 NYCRR 130-1.1(C 3) 16

ili
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Defendants Andrew Slepoy and Herbert Slepoy Corp. (the “Slepoy Defendants”)

submit this memorandum of law in opposition to the instant motion to compel, pursuant

to CPLR §§ 3124 and 3126, of Plaintiffs William Slepoy and Stephen Gardner

(“Plaintiffs”). For the reasons set forth herein, as well as in the accompanying Affidavit

of Andrew Slepoy (the “Slepoy Affidavit” or “Slepoy Aff.”), the Affirmation of Joshua

Feldman, Esq. (the “Feldman Aff.”), and the exhibits annexed thereto, Plaintiffs’ motion

should be denied in its entirety.

PRELIMINARY STATEMENT

No matter the volume or quality of documents the Slepoy Defendants produce,

Plaintiffs are serially unsatisfied. Plaintiffs’ instant motion is the culmination of Plaintiffs’

campaign of bad faith tactics under the guise of seeking “cooperation” from the Slepoy

Defendants. Apparently intent on filing a motion to compe! from the onset, Plaintiffs only

now outline the documents they seek with particularity despite refusing to do so at the

Slepoy Defendants’ request. Additionally, Plaintiffs have apparently failed to fully

review the thousands of pages of documents already provided to them by the Slepoy

Defendants, underlining the fact that the documents purportedly sought by the Plaintiffs

have either already been provided to them or otherwise simply do not exist. Despite

Plaintiffs’ contrary narrative, the Slepoy Defendants have not “refused” to produce a

single document. As such, Plaintiffs’ continued bad faith in refusing to cooperate with

the Slepoy Defendants during the course of the discovery process while concurrently

expending the valuable resources of this Court to adjudicatea purported controversy that

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could have easily been resolved between the parties should result in the denial of

Plaintiffs’ motion in its entirety.

RELEVANT FACTUAL BACKGROUND

The relevant factual background to the instant motion boils down to Plaintiffs’

continued obstinacy and refusal to engage in good faith with the Slepoy Defendants.

Plaintiffs First Request for Production to the Slepoy Defendants is dated December

16, 2020 (the “Demands”). See Ex. A. The Slepoy Defendants responded to the Demands

on February 1, 2021 by producing thousands of pages of responsive documents and

otherwise interposing proper objections where appropriate (the “Responses”). See Ex. B.

The Purported D eficiencies

Plaintiffs claim there are four categories for which the Slepoy Defendants’

responses to the Demands are purportedly insufficient: (1) Invoices from vendors setting

forth the work performed at, and materials delivered to, and for the benefit of Lyncrest

(Request Nos. 15 through 18) (“Category 1”), (2) Statements for Andrew Slepoy’s

personal and business credit cards (Request No. 23) (“Category 2”), (3) Documents

concerning Andrew Slepoy’s investigation of codefendant Kent Leffel (Request No. 32)

(“Category 3”), and (4) Communications regarding issues “central to the Action”

(Request Nos. 10, 12, 19, 25, 30, and 33) (“Category 4”). See Pifs. Memo. at p. 5. However,

as evidenced by the accompanying Slepoy Affidavit and otherwise as part of the Slepoy

Defendants’ opposition, the Sleooy Defendants have produced all of the responsive

documents in their possession, custody, and control, consisting of thousands of pages of

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documents. In fact, Plaintiffs have apparently not fully reviewed the Slepoy Defendants’

production, as some of the documents that Plaintiffs claim are missing were in fact

already produced.

With respect to Category 1, Plaintiffs complain that the Slepoy Defendants have

not produced invoices to vendors from 2012 through 2015 (the “Invoices”). See Plfs.

Memo. at p. 5. The Invoices were preserved solely in paper form, which were

inadvertently discarded when a third-party was retained to clean out the basement as a

matter of housekeeping and maintenance per the Slepoy Defendants’ normal business

practice, accidently threw out the files in which the documents were kept. Slepoy Aff. 41

5. What Plaintiffs conveniently fail to mention is that the Slepoy Defendants produced

close to 2,000 pages of documents that detail payments that were made pursuant to those

very same Invoices, including: (1) Slepoy Realties Accounts Payable Report from

¥/ 1/ 2012-9/ 30/ 19 (SDSR_CASH DISBO001-017); (2) Slepoy Realties Cumulative General

Ledger from 1/ 1/ 12-9/ 30/ 19 (SDSR_CGL001-094); (3) Lyncrest Gardens Activity Batch

Reports from JV 1/ 12-8/ 29/19 (SDLGATVBATREPO01-770); (4) Lyncrest Gardens

Accounts Payable Reports from 1/ 1/ 12-3/ 31/ 19 (SGLGACTPAY REP001-289); (5) Capri

Gardens Cumulative General Ledger from J/ 1/ 12-9/ 30/ 19 (SDCAPRICGLO001-115); (6)

Capri Gardens Cash Disbursements from 1/ 1/ 12-9/ 30/ 19 (SDCAPRICASH 001-038);

and (7) Lyncrest Gardens, Capri Gardens, and Slepoy Realties Cumulative General

Ledger (SDLGCGSR_CGL001-346). |d. Therefore, in effect, Plaintiffs already have the

information that they seek with respect to the Invoices. Id.

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Concerning Category 2, Plaintiffs falsely allege that the Slepoy Defendants did not

produce any credit card statements for business credit cards. See, eg., Plfs. Memo. at p. 7.

In truth, the Slepoy Defendants produced Andrew Slepoy/ Herbert Slepoy Corp.

business credit card statements from January 2014 to present for the business credit card

(Mastercard) ending 3951 and (Visa) ending in 4827 (SD4827CHASE001-318). See Exs. E,

F, G; Slepoy Aff. {| 6; Feldman Aff. 4] 11. This is in addition to the JetBlue Mastercard

statements from 2019 to the present that Plaintiffs acknowledge the Slepoy Defendants

have already produced. See Plfs. Memo. at p. 7; Exs E, F; Slepoy Aff. 4 6. On a casual

review Plaintiffs would have seen that the account begins with (Mastercard) ending 3951

and in 2018 was switched by the bank to a (Visa) ultimately ending in 4827 sometime

thereafter. Plaintiffs have failed to review and understand what has been delivered and

rather than spend the time to comprehend the discovery had, have made false assertions

of non-compliance. Andrew Slepoy is not aware of another Chase “Mastercard” credit

card in his name, either personal or business, to which Plaintiffs refer. See Plfs. Memo. at

p. 7; Slepoy Aff. 41 6.

With respect to Category 3, Plaintiffs claim that the Slepoy Defendants have not

fully produced documents concerning an “investigation” of a dishonest former

employee, Kent Leffel (“Leffel”). See Plfs. Memo. at p. 7. Contrary to Plaintiffs’ claim, all

documents concerning the “investigation” have been produced, as the “investigation”

consisted solely of Anthony Cummings, Esq., one of the Slepoy Defendants’ attorneys in

this matter, reviewing a ledger showing entries of checks made out to Leffel and copies

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of the checks themselves, both of which were produced to Plaintiffs (SDLEFFEL001-022.)

Slepoy Aff. 41 7. The balance of the relevant documents, all of which have been produced

to Plaintiffs, include: (1) Lyncrest Tower National Insurance Company Policy

(SDLG6001-23); (2) Nationwide Correspondence and Policy (SDNW001-90); (3) Wesco

correspondence and policy (SDWESCO001-259); (4) a Letter to Nationwide insurance,

which details that the documentation referencing the discovery of the situation is bank

statements and copies of checks (SDNW001-016); (5) Correspondence with CNA

regarding Leffel (SDCNA001-98); (6) Nationwide Proof of Loss (SDNWPLO0O1-002); (7)

Correspondence with Wesco Insurance Company (SDWESCO001-27); and (8) Leffel’s W-

2s (SDWS001-8). Id. In fact, Plaintiffs admit that the Slepoy Defendants have produced

“communications with those carriers and copies of the operative policies.” See Cole Aff.

11 36.

Finally, with respect to Category 4, Plaintiffs claim that the Slepoy Defendants are

withholding relevant email communications from production. See, eg., Plfs. Memo. at p.

8. This is simply untrue. Slepoy Aff. {| 8. The Slepoy Defendants’ business is a low-tech,

family business that rarely utilizes email communication. Id. Instead, communications

are conducted almost always in person or on the telephone. |d. As part of the discovery

process, Andrew Slepoy conducted a diligent search of what few email communications

the Slepoy Defendants have in their possession, and the Slepoy Defendants produced the

emails that were responsive to Plaintiffs’ requests. Id. Plaintiffs’ characterization of three

emails (Exs. 6, 7, 8), only one of which was actually sent by Andrew Slepoy (Ex. 7) as

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“regular use” (Cole Aff. | 27) is materially misleading at best, especially in light of

Plaintiffs’ admission that the Slepoy Defendants have in fact already produced five

emails (Plfs. Memo. at p. 8).

The Slepoy Defendants’ G ood Faith Attempts at Resolution

By letter dated February 26, 2021, Plaintiffs raised purported issues with the

Responses (the “February 26 Letter”), which contained general assertions that certain

categories of documents were not produced. See Ex. C. As relevant to the instant motion,

the categories of purported deficiencies include: (1) that the Slepoy Defendants “have not

produced any invoices showing any work performed or materials used at 230 Atlantic

Ave. or any other of Andrew’s properties...[or] material demonstrating any purported

repayment of the intercompany transfers between Lyncrest and Andrew's other entities”

(presumably with respect to Category 1) (Ex. C at p. 1), (2) that “surely there was

correspondence scheduling your interview with Mr. Leffel, notes taken during that

interview with Mr. Leffel, interview notes or statements of the ‘numerous witnesses’ that

you reference in your October 27, 2020 letter to Lyncrest’s members, and follow up

calculations to determine the nature, scope and extent of Mr. Leffel’s scheme” (emphasis

added) (presumably with respect to Category 3) (id. at p. 2), and (3) “additional detail

concerning the steps that you and your client took as part of your diligent search to

identify and locate documents responsive to our requests numbers 10, 12, 25, 30, 33, 35,

[and] 36” Id.

Notably, as evidenced by the February 26 Letter, Plaintiffs did not identify the

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Slepoy Defendants’ responses to Request Nos. 19 or 23 to be deficient at that time, though

they identify them in their instant motion as demands to which the Slepoy Defendants

have insufficiently responded. See Ex. C. Additionally, it is clear that some of the

purported “deficiencies” detailed by Plaintiffs are based on the presumption that

additional documents exist when in reality Plaintiffs are already in possession of all of

the documents within the Slepoy Defendants’ possession, custody, and control. Seeid. See

Slepoy Aff. 11 5-8.

Thereafter, some two and a half weeks later on March 16, 2021, Plaintiffs sent a

follow up letter to the Slepoy Defendants (the “March 16 Letter”) essentially restating the

contents of the February 26 Letter. See Ex. D. As shown by the contents of the March 16

Letter, Plaintiffs offered no further detail as to the purported production deficiencies

aside from those contained in the February 26 Letter. See Exs. C, D. Again, conspicuously

absent was any allegation that the Slepoy Defendants’ responses to Request Nos. 19 or 23

are deficient in any way. Id.

On March 18, 2021, the Slepoy Defendants made a supplemental production to

Plaintiffs containing over four thousand (4,000) pages of additional documents that are

directly responsive to the Demands (the “March 18 Production”). See Ex. E; Feldman Aff.

4 10. This was in addition to the thousands of pages of documents previously produced

by the Slepoy Defendants to Plaintiffs. Id. Included as part of the March 18 Production is

a bates numbering key, detailing bates numbers that correspond with file names that

were produced therein. See Ex. F; Feldman Aff. {| 10. Of particular importance is the fact

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that, as part of the March 18 Production, the Slepoy Defendants produced Andrew

Slepoy/ Herbert Slepoy Corp. business credit card statements from January 2014 to

present for the Chase business credit card (Visa) ending in 4827 (SD4827CHA SE001-318).

See Exs. E, F.

Thereafter, on April 12, 2021, the Slepoy Defendants sent a response letter to

Plaintiffs with respect to the February 26 Letter and the March 16 Letter, detailing inter

alia that, upon review, all of the responsive documents to the Demands in the Slepoy

Defendants’ possession, custody, and control had been produced to Plaintiffs (the “A pril

12 Letter”). See Ex. H; Feldman Aff. | 12. Contrary to Plaintiffs’ inaccurate

characterizations (Plfs. Memo. at p. 11), the April 12 Letter contained specific bates

number references to documents already produced to Plaintiffs, including via the March

18 Production. See Ex. H. Additionally, the April 12 Letter contained specific, applicable

citations to applicable law in response to Plaintiffs’ unrelenting demand that the Slepoy

Defendants create and otherwise produce documents outside of the Slepoy Defendants’

possession, custody, and control, which is plainly outside the scope of permissible

discovery pursuant to the CPLR and Commercial Division Rules. Id.

Without the courtesy of an email request or prior scheduling phone call, later in

the afternoon of April 12, 2021, counsel for the Slepoy Defendants received a phone call

from counsel for Plaintiffs (the “April 12 Call”). Feldman Aff. 4 14. On theApril 12 Call,

counsel for Plaintiffs did not initially advise as to the purpose of his call, and instead

simply reiterated some of the same nonspecific demands and purported document

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deficiencies as contained in the February 26 Letter, which counsel for the Slepoy

Defendants advised were fully addressed by the Slepoy Defendants in theA pril 12 Letter.

Feldman Aff. 4] 15. In an attempt to crystallize the Plaintiffs’ continuing generalized,

nonspecific issues with the Slepoy Defendants’ complete and voluminous document

production, and cognizant of the fact that it is difficult to remedy purported deficiencies

that are undefined, counsel for the Slepoy Defendants requested that Plaintiffs’ counsel

detail the specific deficiencies that he sought be remedied, which Plaintiffs’ counsel

declined to do. Id. Counsel for the Slepoy Defendants followed this interaction with an

email to Plaintiffs’ counsel reiterating this request. See Ex. |. Once again, this request was

ignored. Feldman Aff. {| 15. Thereafter, Plaintiffs requested leave from the Court to file

the instant motion without further directly contacting the Slepoy Defendants.

In short, the Slepoy Defendants have produced all of the documents responsive to

Plaintiffs’ document demands that are in their possession, custody, and control -

consisting of thousands of pages of responsive documents - the most recent production

notably including credit card statements from 2014 to present that Plaintiffs falsely claim

the Slepoy Defendants failed to produce. Plaintiffs baselessly assert that the Slepoy

Defendants’ production has been inadequate and that the Slepoy Defendants have failed

to act in good faith, when the evidence reflects it is just the opposite - it is the Plaintiffs

who have been chomping at the bit for any reason to cost the Slepoy Defendants more

money and unnecessarily utilize this Court’s valuable time and resources. For those

reasons, Plaintiffs’ instant motion should be denied in its entirety.

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ARGUMENT

Plaintiffs’ instant motion seeks the production of documents that either have

already been produced or are not within the Slepoy Defendants’ possession, custody, or

control. As such, Plaintiffs’ motion should be denied in its entirety.

POINT ONE

THE SLEPOY DEFENDANTS CANNOT BE COMPELLED TO PRODUCE
NONEXISTENT DOCUMENTS OR THOSE WITHOUT THEIR POSSESSION,
CUSTODY,OR CONTROL

Courts have consistently held that “[t]hrough disclosurea party may be required

to produce only those items which are in the possession, custody or control of the party

served. Such items must be preexisting and tangible to be subject to discovery and

production” (internal_quotations and citation omitted). Orzech ex rel. Orzech v. Smith, 12

A.D.3d 1150, 1151, 785 N_.Y.S.2d 643, 644 (2004). See Rosado v. M ercedes-Benz of N orth A mer.,

103 A.D.2d 395, 398 (2d Dep’t 1984) (same). “Documents under a party's ‘control’ within

the use of that term in CPLR 3120 include documents as to which the party has ‘the legal

right, authority, or ability to obtain upon demand’”. Richard v. Kerwin, 2016 WL 6781083

(Sup. Ct., Monroe Co. 2016); see M atter of Schaefer, 2013 WL 1562592, *4 (Sur. Ct., Nassau

Co. 2013). “A party cannot be compelled to provide materials that it does not possess. A

party may also not be compelled to produce information that does not exist” (internal

citations omitted). Brummer v. Wey, No. 153583/ 2015, 2017 WL _ 2494434, at *1 (Sup. Ct.

N.Y. County 2017).

Here, the Slepoy Defendants have produced to Plaintiffs all of the currently

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existing documents within their possession, custody, and control. To reiterate in short:

(1) with respect to Category 1, hundreds of pages of documents with the same

information has already been produced to Plaintiffs and the Slepoy Defendants do not

have possession, custody, or control of the invoices from 2012 through 2015 that Plaintiffs

seek as same existed solely in paper form and was inadvertently discarded during a

routine housekeeping and cleaning activity (Slepoy Aff. 4 5); (2) with respect to Category

2, the Slepoy Defendants did produce business credit card statements for 2014 through

present, despite Plaintiffs’ false claims that same was not produced (Exs. E, F, G; Slepoy

Aff. 1 6; Feldman Aff. 4] 11); (3) with respect to Category 3, the Sleooy Defendants have

produced all of the documents concerning their investigation of Leffel, Plaintiffs admit

that documents within this category had already been produced and Plaintiffs now seek

the production of documents that do not exist and which they cannot demonstrate have

ever existed; and (4) with respect to Category 4, though Plaintiffs are unsatisfied with the

volume of emails produced, the Slepoy Defendants have produced all responsive emails

within their possession, custody, and control, which is limited in volume as the Slepoy

Defendants rarely utilize email correspondence (Slepoy Aff. 1 8).

Morespecifically, regarding Category 1, the Sleooy Defendants have provided the

documents within their possession, custody, and control, including myriad documents

that contain the very same information as in the 2012-2015 Invoices that Plaintiffs seek.

Plaintiffs cannot establish that these invoices, the last of which dates from approximately

five years prior to the commencement of this proceeding and four years prior to any

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“investigation” of the Slepoy Defendants by Plaintiffs, were “willfully destroyed or

discarded in order to frustrate [the Plaintiffs’] interests.” Lipco Elec. Corp. v. ASG

Consulting Corp., 117 A.D.3d 687, 688, 985 N.Y.S.2d 594, 595 (2d Dep't 2014).

With respect to Category 2, Plaintiffs are already in possession of business credit

card statements (Exs. E, F, G; Slepoy Aff. 41 6; Feldman Aff. 4] 11), and their intentional

misrepresentation to the Court is sanctionable in and of itself.

Regarding Category 3, Plaintiffs’ citation for the proposition that an affidavit must

be provided to explain the status of nonexistent documents is inapposite, as the cited case

is one in which the Defendants did not produce a single document in response to the

Plaintiffs’ document requests. Plfs. Memo. at p. 16, citing WMC Mortg. Corp.

Vandermulen, 32 Misc 3d 1206 [A] (Sup. Ct. Suffolk County 2011). In stark contrast, the

Slepoy Defendants have produced thousands of pages of documents to Plaintiffs, and

even so Plaintiffs complain that there are further inadequacies with the Slepoy

Defendants’ production.

Additionally, with respect to Category 4, Plaintiffs admit that some emails have

indeed been produced (Plfs. Memo. at p. 8), and the Slepoy Affidavit details that email

communication is rarely used by the Slepoy Defendants, explaining the perceived

paucity of the Slepoy Defendants’ email production. Slepoy Aff. 41 8. As such, the cases

cited by Plaintiffs in support of the proposition that the Slepoy Defendants be penalized

for insufficient production are similarly inapplicable as they concern entirely inapposite

procedural postures from those in the instant matter. See Plfs. Memo. at p. 16, citing

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Capital One Equip. Fin. Corp v The Osg Corp., 2018 WL 11244467 (Sup. Ct. Nassau County

2018) (J. Driscoll) (denying summary judgment as outstanding discovery was required

that was relevant
to affirmative defenses); N aiman v Fair TradeA cquisition Corp., 152AD3d

779, 781 (2d Dep’t 2017) (holding that the Supreme Court should have granted plaintiff's

motion to strike the answer insofar as asserted by defendants who had not produced

communications or an affidavit attesting to a diligent search for same, despite an order

that they were to produce communications or have their answer stricken.)

For the same reason, a forensic examination of the Slepoy Defendants’ computers

is not warranted or justified. Plaintiffs have appended three emails (Exs. 6, 7, 8), two of

which they claim were not produced (Exs. 7, 8), that Plaintiffs claim justifies a forensic

examination of the Slepoy Defendants’ computers. At the same time, Plaintiffs admit that

five emails were produced (Plfs. Memo. at p. 8) and the Slepoy Affidavit details that all

responsive emails have been produced. Slepoy Aff. {| 8. This is vastly different from all

of the cases Plaintiffs cite for the proposition that a forensic examination is appropriate.

Plfs. Memo. at p. 18, citing Brummer v. Wey 2017 WL 2494434, at *1 (Sup. Ct. N.Y. County

2017) (finding forensic examination appropriate upon Defendant's refusal to produce

multiple categories of documents); Jackson v. O penCommunications Omnimedia, LLC, 147

A.D.3d 709, 709, 49 N.Y.S.3d 389, 390 (1st Dep’t 2017) (where the Court does not address

the propriety of ordering a forensic examination in the first place, and following forensic

examination, “numerous pages of documents that should have been turned over to

defendants” and a flash drive that plaintiff agreed to produce); Suffolk P.E.T.M gmt., LLC

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v. Anand, 105 A.D.3d 462, 962 N.Y.S.2d 138, 139 (1st Dep’t 2013) (again only addressing

findings post forensic examination, and not the propriety of ordering the forensic

examination to begin with).

As is their modus operandi, Plaintiffs allege that the particular deficiency with the

Slepoy Defendants’ email production is the lack of “contemporaneous emails” (see, eg.,

Plfs. Memo. at p. 12), though this doublespeak term is not defined. Plaintiffs’ Amended

Complaint (NYSCEF Doc. No. 16) alleges acts that occurred largely between 2012 and

2019, and the two emails Plaintiffs claim were not produced arefrom July 22, 2019 (Ex. 7)

and a chain from June 28, 2019
to July 8, 2019 (Ex. 8). The definition of the undefined term

“contemporaneous emails” notwithstanding, Plaintiffs have not provided a shred of

evidence that the Slepoy Defendants have withheld, intentionally or inadvertently,

responsive email communication. Therefore, a forensic examination of the Slepoy

Defendants’ computers is entirely inappropriate and unjustified, and Plaintiffs’ request

for same should be denied by this Court.

Due to the foregoing, it is clear that Plaintiffs seek the production of documents

that either never existed or are not within the Slepoy Defendants’ possession, custody, or

control, which is supported by the accompanying Slepoy Affidavit submitted

concurrently with the Slepoy Defendants’ opposition. As such, Plaintiffs’ motion should

be denied in its entirety.

POINT TWO

SANCTIONS ARE INAPPROPRIATE, UNWARRANTED, AND UNMERITED

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To avoid needless repetition, it is clear due to the foregoing that sanctions are

inappropriate, unwarranted, and unmerited as and against the Slepoy Defendants, who

have been cooperative with Plaintiffs despite Plaintiffs’ repeated vagaries in their

demands and refusal to engage in good faith with the Slepoy Defendants. Plaintiffs have

fallen far short of the requisite showing that the Slepoy Defendants have “engaged ina

willful and contumacious pattern of noncompliance with disclosure requests or court-

ordered discovery” Park Side Constr. Contractors, Inc. v. Bryan's Quality Plus, LLC, 156

A.D.3d 804, 807, 68N.Y.S.3d 90, 93(2d Dep’t 2017) (affirming, inter alia,J. Driscoll’s denial

of motion to strike pursuant to CPLR § 3126, and holding that “[s]trong public policy,

however, favors the resolution of cases on the merits” (quotations and citation omitted).)

See Lipco Elec. Corp. v. ASG Consulting Corp., 117 A.D.3d 687, 688, 985 N.Y.S.2d 594, 595

(2d Dep't 2014) (affirming, inter alia,J. Driscoll’s denial of motion to strike pursuant to

CPLR § 3126 “since the appellants failed to conclusively establish that certain evidence

was ‘willfully destroyed or discarded in order to frustrate their interests”.)

If anything, it is the Plaintiffs who should be sanctioned for their willful and

contumacious abuses of the discovery process. First, by way of their instant motion

Plaintiffs made misrepresentations to this Court regarding the Slepoy Defendants’

production of documents responsive to Category 2, alleging that business credit card

statements had not been produced when in reality Plaintiffs received six years of business

credit card statements totaling over 300 pages. Exs. E, F, G; Slepoy Aff. 4] 6; Feldman Aff.

4 11. This is a “material factual statement that is false, warranting sanctions pursuant to

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22 NYCRR 130-1.1(0)(3). Second, Plaintiffs’ refusal to engage in good faith discussions

with the Slepoy Defendants without having to expend this Court’s valuable time and

resources, which includes Plaintiffs’ failure to the Slepoy Defendants’ responses to

Request Nos. 19 (Category 4) or 23 (Category 2) to be deficient prior to the filing of this

motion (see Ex. C), is an abuse of the discovery process warranting sanctions as Plaintiffs

plainly did not confer with the Slepoy Defendants in good faith prior to filing this motion

seeking supplemental production pursuant to, inter alia, Request Nos. 19 and 23.

For those reasons, sanctions against the Slepoy Defendants are inappropriate and,

if anything, it is Plaintiffs who should be sanctioned.

CONCLUSION

For the foregoing reasons, it is respectfully requested that this Court deny

Plaintiffs’ motion in its entirety, together with such other and further relief as the Court

may deem just, proper, and equitable.

Dated: East Meadow, New York
May 21, 2021

CERTILMAN BALIN ADLER& HYMAN, LLP

s/ Joshua Feldman
By:
Joshua Feldman, Esq.

Case Info

Judge

Timothy Driscoll Track Judge’s New Case

Case No.

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Document Filed Date

May 21, 2021

Case Filing Date

June 12, 2020

County

Parties

Andrew Slepoy Defendant
CARNEY-COLE, KATHRYN M Attorney for the Plaintiff
CUMMINGS, ANTHONY W Attorney for the Defendant
DOOLEY, CHRISTOPHER PAUL Attorney for the Defendant
FELDMAN, JOSHUA Attorney for the Defendant
HERBERT SLEPOY CORPORATION Defendant
Kent Leffel Defendant
Lyncrest Gardens Co., LLC Nominal Defendant Defendant
Lyncrest Gardens Co., LLC Nominal Defendant Defendant
SLUKA, PETER JONATHAN Attorney for the Plaintiff
Stephen Gardner DERIVATIVELY o/b/o Lyncrest Gardens Co., LLC Plaintiff
Stephen Gardner DERIVATIVELY o/b/o Lyncrest Gardens Co., LLC Plaintiff
WICKS, JAMES M Attorney for the Plaintiff
William Slepoy DERIVATIVELY o/b/o Lyncrest Gardens Co., LLC Plaintiff
William Slepoy DERIVATIVELY o/b/o Lyncrest Gardens Co., LLC Plaintiff
WILLIAM CUMMINGS Attorney
ANTHONY WANG Attorneys for Defendants
KATHRYN CARNEY-COLE Attorneys for Plaintiffs
PETER SLUKA Attorney
CHARLES COLE Attorney
JACLYN RUGGIRELLO Attorney

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Motion-Secondary: William Slepoy Derivatively o/b/o Lyncrest Gardens Co., LLC, Stephen Gardner Derivatively o/b/o Lyncrest Gardens Co., LLC v. Andrew Slepoy, Lyncrest Gardens Co., Llc Nominal Defendant, Kent Leffel, Herbert Slepoy Corporation

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