Preview
FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JAMES DAVIS II and MEDISALE, INC.,
Plaintiffs, Index No. 656346/2018
- against - REPLY AFFIRMATION
OF NATHAN COHEN
RICHMOND CAPITAL GROUP, LLC; INFLUX IN SUPPORT OF
CAPITAL GROUP, LLC, a/k/a INFLUX CAPITAL, MOTION TO QUASH
LLC; GTR SOURCE, LLC; ADDY SOURCE, LLC; SUBPOEANAS DUCES
YES CAPITAL FUNDING GROUP, LLC, d/b/a YES TECUM
FUNDING SERVICES, LLC; JONATHAN BRAUN;
MICHELLE GREGG; TSVI REICH a/k/a STEVE
REICH; ROBERT GIARDINA; BRYAN BAKER d/b/a
BAKER CAP FUNDING d/b/a BAKER CAPITAL
FUNDING; REBAR CAPITAL, LLC;
AZRIEL INZELBUCH a/k/a DAVID B FRANK;
and TZVI DAVIS a/k/a STEVEN DAVIS,
Defendants.
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Nathan Cohen, Esq., an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms as follows, upon penalty of perjury:
1. I am special counsel at the firm Jacobowitz Newman Tversky LLP, attorneys for
defendants Influx Capital Group LLC a/k/a Influx Capital LLC, GTR Source LLC, Addy Source
LLC, Tzvi Reich1 and Tsvi Davis2 in this action (collectively referred to as the “Objecting
Defendants”). As such, I am fully familiar with all of the facts and circumstances hereinafter set
forth.
2. I respectfully submit this reply affirmation in further support of the Objecting
Defendants’ motion to quash the third-party subpoenas to PNC Bank and Empire State Bank,
1
Improperly named in the caption as “Tsvi” Reich.
2
Improperly named in the caption as “Tzvi” Davis.
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respectively and for a protective order and certain other relief (the “Motion”).
3. In opposition to the Motion, Plaintiffs have submitted the untimely affirmation of
their counsel, Robin Loguidice, dated December 3, 2019 (“Plaintiffs’ Opposition”).
4. As an initial matter, the Court should disregard Plaintiffs’ Opposition because it
was not timely filed on or before November 26, 2019, as directed by the Court.3 Accordingly, the
Motion should be granted unopposed.
5. In any event, Plaintiffs’ Opposition fails to provide any basis for denying the
Motion.
6. In an effort to divert attention from its flagrant abuse of the discovery process,
Plaintiffs falsely accuse the Objecting Defendants of “avoid[ing] responding to Plaintiffs’
discovery notices” and “delay[ing] and inerfer[ing] with the orderly process of discovery in this
case.” See Plaintiffs’ Opposition ¶ 15.
7. Plaintiffs point specifically to discovery demands and EBT notices served on the
Objecting Defendants on March 22, 2019. Id. ¶ 9. Plaintiffs conveniently omit the fact that as of
March 22, 2019, all discovery was stayed pursuant to CPLR 3214 by virtue of the Objecting
Defendants’ then pending motion to dismiss. Thus, Plaintiffs’ discovery demands and EBT notices
were improperly served and were null and void. See, e.g., Rattner v. Planning Com. Of
Pleasantville, 156 A.D.2d 521 (2d Dep’t 1989) (“With respect to discovery demands, we find that
the Rattner parties were not under a duty to answer the Village’s interrogatories since there was a
stay of discovery when the interrogatories were served and the Village should have submitted new
3
Ironically, Plaintiffs’ counsel sought by order to show cause to bring an “emergency” temporary
restraining order to accelerate the briefing of the Motion, yet after stipulating on the record to withdraw the
order to show cause and file opposition to the Motion by November 26, 2019, Plaintiffs’ counsel missed
the deadline by one full week without bothering to seek an adjournment from the Objecting Defendants’
counsel or from the Court. Clearly, the Motion does not present any “emergency” circumstances for
Plaintiffs.
2
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interrogatories when the stay of discovery was terminated by the determination of the CPLR 3212
motion.”) (citing CPLR 3214 and Rappaport v. Blank, 99 Misc. 2d 1020 [NY Cnty 1979], revd on
other grounds 72 A.D.2d 717).
8. Indeed, Plaintiffs have never properly served any discovery demands on the
Objecting Defendants nor has Plaintiffs’ counsel even attempted to engage in any good faith
discussion with counsel for the Objecting Defendants regarding discovery. Instead, Plaintiffs
surreptitiously served the instant, grossly overbroad, third-party subpoenas in order to improperly
obtain voluminous personal and confidential financial records of the Objecting Defendants that
have no bearing on this action.4
9. Plaintiffs absurdly claim the subpoenas are “tailored to garner information as to
what sums were collected and paid to which Defendants, their agents and attorneys, and to clarify
essential facts in this litigation.” Plaintiffs Opposition ¶ 15
10. Nothing could be further from the truth. Rather, the subpoenas seek, without
limitation, all of the Objecting Defendants’ business and personal banking records pertaining to
all of the Objecting Defendants’ banking transactions since September 2017, without regard to
whether such records are relevant to any claims or issues in this case.
11. Indeed, the Complaint does not allege any facts with respect to any of the Objecting
Defendants to suggest that the subpoenaed banking records include information concerning a
single transaction that has any relevance to any of the claims or issues in this case, which, as
Plaintiffs acknowledge, concern the alleged “overcollections of ACH payments, withdrawn …
4
As detailed in the Objecting Defendants’ moving papers, Plaintiffs’ counsel and her co-counsel
of record in Gateway were admonished by the Gateway court for engaging in the same abusive discovery
tactics and issuing virtually identical overly broad non-party subpoenas without notice to the Objecting
Defendants to improperly obtain and publish the Objecting Defendants’ confidential banking records to
NYSCEF.
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from Plaintiffs’ bank accounts.” Plaintiffs Opposition ¶ 6. The subpoenas are not limited to
transactions, if any, relating to such ACH payments, nor even to transactions that have any
connection whatsoever to the MCA Agreements at issue in this action.
12. Rather, the subpoenas each demand production of “all documents relating to
banking transactions from September 2017 through today’s date” without any limitation. The
subpoenas proceed to specify that the request includes, “but [is] not limited to” nine distinct
categories of documents – each with numerous subcategories.
13. For example, each subpoena demands production of:
All documents pertaining to open or closed bank credit cards in the name of, for the
benefit of, or under the control of the Defendants, including but not limited to:
a. Applications for credit
b. Corporate board authorization minutes or partnership resolutions
c. Retained copies of credit reports
d. Monthly statements
e. Financial statements
f. Charge tickets
g. Documents (check, debit memos, cash receipts, wire transfer documents,
etc.,) reflecting payments on the account.
14. Each of the eight other categories and dozens of subcategories are similarly
overbroad and demand the production of voluminous confidential financial records bearing
absolutely no relation whatsoever to the underlying issues in this action.
15. Moreover, even assuming arguendo that some of the Objecting Defendants’
banking records would be relevant, there still would be no justification for Plaintiffs’ unqualified
demand for the production of all of the Objecting Defendants’ banking records.
16. Plaintiffs’ blunderbuss demands suggest that the true motivation for the subpoenas
is nothing more than to annoy and harass the Objecting Defendants.
17. Under the circumstances, the failure to timely notify the Objecting Defendants of
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the subpoenas appears to have been calculated to obtain the requested information before the
Objecting Defendants would have an opportunity to object, rather than due to a mere “law office
failure,” as Plaintiffs’ counsel flippantly claims.
18. Regardless, Plaintiffs’ brazen abuse of the subpoena process to obtain irrelevant,
sensitive and confidential information concerning the Objecting Defendants’ business and
personal finances makes a protective order and sanctions entirely appropriate and necessary.
19. Accordingly, the subpoenas should be quashed. Additionally, in order to protect
the Objecting Defendants’ from further abuses of the discovery process, the Court should issue a
protective order precluding plaintiffs from re-serving the instant subpoenas or engaging in any
non-party discovery until party discovery is completed and plaintiffs thereafter obtain specific
permission from the Court based on a showing that such non-party discovery is material and/or
necessary and cannot be obtained through party discovery.
Dated: Cedarhurst, New York
December 6, 2019
/s/ Nathan Cohen
Nathan Cohen
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Preview
FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------x JAMES DAVIS II and MEDISALE, INC., Plaintiffs, Index No. 656346/2018 - against - REPLY AFFIRMATION OF NATHAN COHEN RICHMOND CAPITAL GROUP, LLC; INFLUX IN SUPPORT OF CAPITAL GROUP, LLC, a/k/a INFLUX CAPITAL, MOTION TO QUASH LLC; GTR SOURCE, LLC; ADDY SOURCE, LLC; SUBPOEANAS DUCES YES CAPITAL FUNDING GROUP, LLC, d/b/a YES TECUM FUNDING SERVICES, LLC; JONATHAN BRAUN; MICHELLE GREGG; TSVI REICH a/k/a STEVE REICH; ROBERT GIARDINA; BRYAN BAKER d/b/a BAKER CAP FUNDING d/b/a BAKER CAPITAL FUNDING; REBAR CAPITAL, LLC; AZRIEL INZELBUCH a/k/a DAVID B FRANK; and TZVI DAVIS a/k/a STEVEN DAVIS, Defendants. ----------------------------------------------------------------------x Nathan Cohen, Esq., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms as follows, upon penalty of perjury: 1. I am special counsel at the firm Jacobowitz Newman Tversky LLP, attorneys for defendants Influx Capital Group LLC a/k/a Influx Capital LLC, GTR Source LLC, Addy Source LLC, Tzvi Reich1 and Tsvi Davis2 in this action (collectively referred to as the “Objecting Defendants”). As such, I am fully familiar with all of the facts and circumstances hereinafter set forth. 2. I respectfully submit this reply affirmation in further support of the Objecting Defendants’ motion to quash the third-party subpoenas to PNC Bank and Empire State Bank, 1 Improperly named in the caption as “Tsvi” Reich. 2 Improperly named in the caption as “Tzvi” Davis. 1 of 5 FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019 respectively and for a protective order and certain other relief (the “Motion”). 3. In opposition to the Motion, Plaintiffs have submitted the untimely affirmation of their counsel, Robin Loguidice, dated December 3, 2019 (“Plaintiffs’ Opposition”). 4. As an initial matter, the Court should disregard Plaintiffs’ Opposition because it was not timely filed on or before November 26, 2019, as directed by the Court.3 Accordingly, the Motion should be granted unopposed. 5. In any event, Plaintiffs’ Opposition fails to provide any basis for denying the Motion. 6. In an effort to divert attention from its flagrant abuse of the discovery process, Plaintiffs falsely accuse the Objecting Defendants of “avoid[ing] responding to Plaintiffs’ discovery notices” and “delay[ing] and inerfer[ing] with the orderly process of discovery in this case.” See Plaintiffs’ Opposition ¶ 15. 7. Plaintiffs point specifically to discovery demands and EBT notices served on the Objecting Defendants on March 22, 2019. Id. ¶ 9. Plaintiffs conveniently omit the fact that as of March 22, 2019, all discovery was stayed pursuant to CPLR 3214 by virtue of the Objecting Defendants’ then pending motion to dismiss. Thus, Plaintiffs’ discovery demands and EBT notices were improperly served and were null and void. See, e.g., Rattner v. Planning Com. Of Pleasantville, 156 A.D.2d 521 (2d Dep’t 1989) (“With respect to discovery demands, we find that the Rattner parties were not under a duty to answer the Village’s interrogatories since there was a stay of discovery when the interrogatories were served and the Village should have submitted new 3 Ironically, Plaintiffs’ counsel sought by order to show cause to bring an “emergency” temporary restraining order to accelerate the briefing of the Motion, yet after stipulating on the record to withdraw the order to show cause and file opposition to the Motion by November 26, 2019, Plaintiffs’ counsel missed the deadline by one full week without bothering to seek an adjournment from the Objecting Defendants’ counsel or from the Court. Clearly, the Motion does not present any “emergency” circumstances for Plaintiffs. 2 2 of 5 FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019 interrogatories when the stay of discovery was terminated by the determination of the CPLR 3212 motion.”) (citing CPLR 3214 and Rappaport v. Blank, 99 Misc. 2d 1020 [NY Cnty 1979], revd on other grounds 72 A.D.2d 717). 8. Indeed, Plaintiffs have never properly served any discovery demands on the Objecting Defendants nor has Plaintiffs’ counsel even attempted to engage in any good faith discussion with counsel for the Objecting Defendants regarding discovery. Instead, Plaintiffs surreptitiously served the instant, grossly overbroad, third-party subpoenas in order to improperly obtain voluminous personal and confidential financial records of the Objecting Defendants that have no bearing on this action.4 9. Plaintiffs absurdly claim the subpoenas are “tailored to garner information as to what sums were collected and paid to which Defendants, their agents and attorneys, and to clarify essential facts in this litigation.” Plaintiffs Opposition ¶ 15 10. Nothing could be further from the truth. Rather, the subpoenas seek, without limitation, all of the Objecting Defendants’ business and personal banking records pertaining to all of the Objecting Defendants’ banking transactions since September 2017, without regard to whether such records are relevant to any claims or issues in this case. 11. Indeed, the Complaint does not allege any facts with respect to any of the Objecting Defendants to suggest that the subpoenaed banking records include information concerning a single transaction that has any relevance to any of the claims or issues in this case, which, as Plaintiffs acknowledge, concern the alleged “overcollections of ACH payments, withdrawn … 4 As detailed in the Objecting Defendants’ moving papers, Plaintiffs’ counsel and her co-counsel of record in Gateway were admonished by the Gateway court for engaging in the same abusive discovery tactics and issuing virtually identical overly broad non-party subpoenas without notice to the Objecting Defendants to improperly obtain and publish the Objecting Defendants’ confidential banking records to NYSCEF. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019 from Plaintiffs’ bank accounts.” Plaintiffs Opposition ¶ 6. The subpoenas are not limited to transactions, if any, relating to such ACH payments, nor even to transactions that have any connection whatsoever to the MCA Agreements at issue in this action. 12. Rather, the subpoenas each demand production of “all documents relating to banking transactions from September 2017 through today’s date” without any limitation. The subpoenas proceed to specify that the request includes, “but [is] not limited to” nine distinct categories of documents – each with numerous subcategories. 13. For example, each subpoena demands production of: All documents pertaining to open or closed bank credit cards in the name of, for the benefit of, or under the control of the Defendants, including but not limited to: a. Applications for credit b. Corporate board authorization minutes or partnership resolutions c. Retained copies of credit reports d. Monthly statements e. Financial statements f. Charge tickets g. Documents (check, debit memos, cash receipts, wire transfer documents, etc.,) reflecting payments on the account. 14. Each of the eight other categories and dozens of subcategories are similarly overbroad and demand the production of voluminous confidential financial records bearing absolutely no relation whatsoever to the underlying issues in this action. 15. Moreover, even assuming arguendo that some of the Objecting Defendants’ banking records would be relevant, there still would be no justification for Plaintiffs’ unqualified demand for the production of all of the Objecting Defendants’ banking records. 16. Plaintiffs’ blunderbuss demands suggest that the true motivation for the subpoenas is nothing more than to annoy and harass the Objecting Defendants. 17. Under the circumstances, the failure to timely notify the Objecting Defendants of 4 4 of 5 FILED: NEW YORK COUNTY CLERK 12/06/2019 01:18 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/06/2019 the subpoenas appears to have been calculated to obtain the requested information before the Objecting Defendants would have an opportunity to object, rather than due to a mere “law office failure,” as Plaintiffs’ counsel flippantly claims. 18. Regardless, Plaintiffs’ brazen abuse of the subpoena process to obtain irrelevant, sensitive and confidential information concerning the Objecting Defendants’ business and personal finances makes a protective order and sanctions entirely appropriate and necessary. 19. Accordingly, the subpoenas should be quashed. Additionally, in order to protect the Objecting Defendants’ from further abuses of the discovery process, the Court should issue a protective order precluding plaintiffs from re-serving the instant subpoenas or engaging in any non-party discovery until party discovery is completed and plaintiffs thereafter obtain specific permission from the Court based on a showing that such non-party discovery is material and/or necessary and cannot be obtained through party discovery. Dated: Cedarhurst, New York December 6, 2019 /s/ Nathan Cohen Nathan Cohen 5 5 of 5