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FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022
SUPREME COURT OF THE STATE OF NEW YORK X
COUNTY OF NEW YORK
:
PETITION FOR
----------------------------------------------------------------------- : ENFORCEMENT OF A
SUBPOENA FOR THE
: TESTIMONY OF NIDHI
VAGHASHIA AND FOR
: ADJUDICATION OF
In the Matter of the Application of Govind R. Vaghashia CONTEMPT
to Enforce a Subpoena for the Testimony of :
Nidhi Vaghashia
:
Index No.:
: RJI No.:
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Petitioner Govind R. Vaghashia (“Petitioner” or “Govind”), by and through his counsel,
Enenstein Pham & Glass, submits this petition for enforcement of a subpoena for testimony and
production of documents from Nidhi Vaghashia (“Respondent” or “Nidhi”), pursuant to New
York Civil Practice Law and Rules (“CPLR”) Article 31 § 3119, Article 31 § 3124, Article 23 §
2308 and Judiciary Law § 753.
INTRODUCTION
1. Petitioner submits this Petition and the supporting Affirmation for enforcement of
a subpoena that was issued under CPLR § 3119, the Uniform Interstate Depositions and
Discovery Act. The subpoena calls for the testimony of an individual, Nidhi Vaghashia, for use
in a case currently pending in the Superior Court of California, County of Los Angeles, Govind
Vaghashia et. al v. Prashant Vaghashia et. al (Case No. BC696133), (hereinafter the “California
Action”). Nidhi, a percipient witness to material events in the litigation, resides in New York,
New York. Petitioner served Nidhi at her residence in New York with an information subpoena
requesting production of relevant documents and commanding her attendance at a deposition in
New York, but Nidhi failed to appear.
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2. Petitioner respectfully requests that this Court order Nidhi to comply with the
subpoena and appear for deposition and produce the requested documents and for Nidhi to be
held in contempt for disobedience of the subpoena.
PARTIES
3. Petitioner Govind R. Vaghashia is an individual residing in Burbank, California.
4. Respondent Nidhi is the daughter of Prashant and Mita Vaghashia, Defendants in
the above referenced California Action, and niece of Govind R. Vaghashia. Respondent Nidhi
currently resides at 2 Gold Street., Apt. 2303, New York, New York 10038.
RELEVANT CPLR AND CALIFORNIA PROVISIONS
5. CPLR § 3119 provides, in relevant part:
(a) Definitions. For purposes of this section:
(1) “Out-of-state subpoena” means a subpoena issued under authority of a
court of record of a state other than this state.
* * *
(4) “Subpoena” means a document, however denominated, issued under
authority of a court of record requiring a person to:
(i) attend and give testimony at a deposition;
(ii) produce and permit inspection and copying of designated books,
documents, records, electronically stored information, or tangible
things in the possession, custody or control of the person …
* * *
(b) Issuance of subpoena.
* * *
(1) To request issuance of a subpoena under this section, a party must submit
an out-of-state subpoena to the county clerk in the county in which discovery
is sought to be conducted in this state …
(2) When a party submits an out-of-state subpoena to the county clerk, the
clerk, in accordance with that court’s procedure and subject to the provisions
of article twenty-three of this chapter, shall promptly issue a subpoena for
service upon the person to which the out-of-state subpoena is
directed.
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(4) Notwithstanding paragraph one of this subdivision, if a party to an out-of-
state proceeding retains an attorney licensed to practice in this state, and that
attorney receives the original or a true copy of an out-of-state subpoena, the
attorney may issue a subpoena under this section.
(e) Application to court. An application to the court for a protective order or
to enforce, quash, or modify a subpoena issued under this section must
comply with the rules or statutes of this state and be submitted to the court in
the county in which discovery is to be continued.
The California Code of Civil Procedure (“CCP”) § 2026.010, Depositions in
another state of the United States, provides in relevant part:
(c) If the deponent is not a party to the action or an officer, director, managing
agent, or employee of a party, a party serving a deposition notice under this
section shall use any process and procedures required and available under
the laws of the state … where the deposition is to be taken to compel the
deponent to attend and to testify, as well as to produce any document,
electronically stored information, or tangible thing for inspection, copying,
testing, sampling, and any related activity.”
6. For the reasons set forth below, Govind’s subpoena was appropriately issued
under CPLR § 3119, and should be enforced. See Hyatt v. State Franchise Tax, 962 N.Y.S.2d
282, 287, 292 (App. Div. 2013) (CPLR § 3119 “provides that out-of-state judicial subpoenas can
be submitted to either the county clerk or an attorney licensed in New York [for issuance of the
subpoena], but does not require judicial review of the subpoenas before they are served”).
PROCEDURAL AND FACTUAL BACKGROUND
7. Petitioner Govind Vaghashia and Nidhi’s parents (Prashant Vaghashia and Mita
Vaghashia) are parties to a case pending in California. Govind initiated the California Action,
alleging causes of action against Prashant and Mita Vaghashia for: (i) declaratory relief, (ii)
appointment of a provisional director under Cal. Corp. Code §308, (iii) removal of director; and
(iv) breach of fiduciary duty. In his complaint, Govind alleges, among other things, that Prashant
and Mita embezzled funds from a corporation of which he and Prashant are shareholders,
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Graphic Research, Inc. See Exhibit A to concurrently filed Affirmation in Support of Petition
For Enforcement (“Affirmation”).
8. On March 22, 2018, Prashant and Mita filed their Answer and brought a cross-
complaint against Govind. Prashant and Mita contend that in 1984, Govind invited Prashant to
enter into a general partnership whereby everything Govind currently owned in 1984 and
everything Govind acquired thereafter (including Govind’s personal residence, personal effects,
automobiles, and personal property), form an unwritten, general partnership between Govind and
his wife, Sonal, and Prashant and Mita. See Exhibit B to Affirmation.
9. On March 14, 2019, the Vaghashia Family Limited Partnership and Sherman
Oaks First Plaza, LLC filed a complaint in the United States District Court for the Central
District of California, Case No. 2:19-cv-01876, against Prashant, Mita, Nidhi and others
asserting fourteen causes of action, including claims under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et. seq. (“RICO”), fraudulent misrepresentation,
concealment, breach of contract, false promise, common count, and conversion (the “RICO
Case”). See Affirmation ¶ 5. Govind’s present counsel appeared on behalf of the plaintiff. Id. On
June 10, 2019, M. Cris Armenta, of the Armenta Law Firm, appeared on behalf of Prashant, Mita
and Nidhi Vaghashia in the RICO Case. See Exhibit C to Affirmation. On November 1, 2019, the
U.S. District Court stayed the RICO Case pending resolution of the California Action. See
Affirmation ¶ 5.
10. Trial in the California Action is set for March 28, 2022. See Affirmation ¶ 6.
Govind filed a motion to bifurcate the trial into two phases, which the court granted on
September 28, 2021. Id. Pursuant to the Court’s order, Phase One of the trial will determine
whether an oral partnership existed between the parties. Id.
11. Respondent Nidhi is Prashant and Mita’s daughter and is a percipient witness to
certain important facts and circumstances in the California Action. See Affirmation ¶ 7. In
particular, Prashant and Mita appear to have an interest in a hotel in Arkansas that is purportedly
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owned by Nidhi, despite claiming they have no involvement. Id. In the declaration of Gary
Smith, submitted in the RICO Case, Mr. Smith attests that he performed accounting services on
behalf of Econo Lodge in Hot Springs, Arkansas, for Harshika Shroff. Ms. Shroff told Mr. Smith
that she was selling the Econo Lodge to Prashant Patel (a friend and associate of Prashant
Vaghashia) and Nidhi. Exhibit D to Affirmation. Mr. Patel later asked Mr. Smith to provide
similar accounting services for a new entity that would own the restaurant located on the same
property as the motel, renamed “Taste of India.” Id. at ¶ 7. Mr. Smith performed various
accounting services for the new owners’ entities, Century Hospitality, Inc. dba Econo Lodge Inn
& Suites and Hot Springs Restaurant and Lounge Inc. dba Taste of India. Id. at ¶ 8. Mr. Patel
later transferred his shares to Nidhi. Id. at ¶ 12.
12. Hot Springs Restaurant and Lounge, Inc., is now a dissolved Arkansas entity, but
was previously located at 1204 Central Ave, Hot Springs, AR and doing business under the
fictitious name “Taste of India.” See Exhibit E to Affirmation. Hot Springs Restaurant and
Lounge, Inc. lists Prashant Patel as its incorporator and registered agent and later added Nidhi
Vaghashia as Registered Agent, President, and Secretary and Prashant Vaghashia as secretary.
Id. And Century Hospitality, Inc., owner of the restaurant and hotel, listed its address as 3339
Durham Court, Burbank, CA—Prashant and Mita’s home address. Id.
13. This evidence indicates Prashant and Mita have ownership interests Hot Springs
Restaurant and Lounge, Inc and Century Hospitality. The contention that in 2015, Nidhi – who
was 27 at the time and living as a student in New York – acquired an ownership interest in a
motel in Arkansas from a friend of Prashant Vaghashia’s (Prashant Patel) is spurious, or at least,
highly suspicious. The fact that Prashant Vaghashia is listed as the Secretary of the business on
filings with the Secretary of State belies the contention that Nidhi purchased it, as well as
Prashant and Mita’s assertions that they have no interest in the businesses.
14. The testimony of Nidhi is therefore relevant and important to Petitioner’s claims
and defenses. It is inapposite to contend Prashant and Mita are “general partners” with Govind,
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whereby every asset acquired by any of the parties belongs to the partnership, when Prashant and
Mita have ownership interests in various similar businesses throughout the United States that
they hide and exclude from their “general partnership” with Govind. If the purported partnership
did exist, Govind would be entitled to half of the entities purchased by Prashant and Mita during
the same time period, including the hotel in Arkansas purportedly owned by Nidhi. In addition,
Govind has reason to believe that the money Prashant embezzled from Govind was used to
purchase the assets of Hot Springs Restaurant and Lounge, Inc. and Century Hospitality, Inc.,
including the hotel purportedly owned solely by Nidhi. Discovery into what entities and
properties Prashant did or does in fact own, and why they are not included in the assets of the
oral general partnership he alleges to have existed is thus critically important. Nidhi will also
likely have information related to the nature of the business relationship between her parents and
Govind Vaghashia regarding the alleged 35-year partnership.
15. Counsel for Govind issued a deposition subpoena on October 11, 2021 for the
California Action noticing a deposition date of December 15, 2021, at 10:00 a.m. EST, at 711
Third Avenue, 17th Floor, New York, NY 10017 (the “California Subpoena”). See Exhibit F to
Affirmation, Deposition Subpoenas and Proofs of Service. The subpoena required Nidhi to
produce documents and appear for a deposition in New York related to the California Action and
Govind’s claims and defenses.
16. On November 17, 2021 the County Clerk of New York County issued a Subpoena
AD Testificandum and Duces Tecum pursuant to the Uniform Interstate Depositions and
Discovery Act, CPLR § 3119, identifying the California Action as the originating case and
California as the originating state (the “New York Subpoena”). See Exhibit F to Affirmation,
Deposition Subpoenas and Proofs of Service.
17. The Amended Declaration of Due Diligence by Alvin Gonzalez indicates that
both the California Subpoena and the New York Subpoena were properly served under CPLR
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308(4) by posting and mailing after personal service could not be made with due diligence. See
Exhibit F to Affirmation, Deposition Subpoenas and Proofs of Service.
18. On November 30, 2021, counsel for Govind served a Notice of Deposition of
Nidhi Vaghashia on M. Cris Armenta—counsel for Prashant Vaghashia and Mita Vaghashia in
the California Action and counsel for Nidhi Vaghashia in the RICO Action. See Exhibit G to
Affirmation, Notice of Deposition.
19. On December 6, 2021, counsel for Govind emailed counsel for Nidhi Vaghashia
in the RICO Case, Cris Armenta, again notifying counsel of the deposition of Nidhi set for
December 15, 2021. Counsel for Govind noted that Ms. Armenta represented Nidhi in the RICO
Action and asked that Ms. Armenta confirm whether Nidhi intended to appear and produce
documents at the deposition. See Exhibit H to Affirmation. Ms. Armenta never responded to the
email or subpoena. See Affirmation ¶ 13.
20. On December 8, 2021, counsel for Govind called Nidhi Vaghashia at (818) 516-
2714, asked if she was Nidhi Vaghashia, to which she responded that she was but her last name
had changed. See Affirmation ¶ 14. Counsel for Govind then identified himself and asked if she
was familiar with this lawsuit. Id. Nidhi stated that she had to attend a meeting and he would
have to call her at another time. Id. Counsel for Govind then called Nidhi at the same number on
December 9, 2021, identified himself and stated that he was calling her back as instructed, and
asked if she was represented by counsel. Id. She then hung up the phone. Counsel for Govind
then emailed Nidhi at nidhivaghashia@gmail.com confirming the deposition on December 15,
2021 and inquiring whether she intended to appear. See Exhibit I to Affirmation, December 9
email.
21. Nidhi failed to appear for her deposition on December 15, 2021, at 10:00 a.m., at
the location 711 Third Avenue, 17th Floor, New York, New York 10017 and failed to produce
the requested documents. Counsel for Govind started the deposition at 10:30 a.m. and made a
record of Nidhi’s failure to appear. See Exhibit J to Affirmation, Deposition Transcript. As a
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result of her failure to comply with the subpoena and her failure to notify Petitioner’s counsel
that she would not attend, Petitioner’s counsel, staff, and the court reporter were all
inconvenienced and forced to waste considerable time.
NEED FOR RELIEF AND LACK OF UNDUE BURDEN
22. Nidhi has disobeyed the subpoenas by failing to produce the requested documents
and failing to appear at the duly subpoenaed deposition. Petitioner’s right to conduct discovery
on his claims and for his defense against Prashant and Mita’s claims has been (and continues to
be) defeated, impaired, impeded and/or prejudiced since Petitioner is unable to obtain relevant
documents and testimony without Nidhi’s compliance with the subpoena. See Judiciary Law §
753.
23. Non-party witness Nidhi waived any objections she may have had to the
deposition subpoena and document requests by failing to move to quash the subpoena prior to
the date for production of documents and the date of the deposition. See CPLR § 2304. “A
motion to quash or vacate, of course, is the proper and exclusive vehicle to challenge the validity
of the subpoena or the jurisdiction of the issuing authority,” and the motion “must be made
promptly, generally before the return date of the subpoena.” Brunswick Hosp. Center, Inc. v.
Hynes, 52 N.Y.2d 333, 340 (1981); see also People v. Burnette, 612 N.Y.S.2d 774, 776 (1994)
(“it is futile to make the motion to quash returnable long after the subpoena itself is returnable”).
24. The testimony of Nidhi regarding her knowledge of Prashant and Mita’s conduct
and allegations against Petitioner is relevant and important, and the scope of the subpoena is
focused on precisely those topics. As discussed above, Prashant and Mita have brought
counterclaims against Petitioner in the California Action and seek extensive damages based in
large part on allegations of a partnership Nidhi’s parents purportedly had with Govind for
approximately 35 years. Moreover, Nidhi and her father Prashant Vaghashia were named as
officers of a hotel in Arkansas that Prashant and Mita have hidden from Govind and discovery in
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the California Action. As a result, Nidhi’s testimony is crucial for Petitioner to fairly defend
himself and meaningfully litigate his case against Prashant and Mita Vaghashia.
25. The subpoena is not overbroad. The documents and testimony sought in the
subpoena are relevant and specifically tailored to information pertaining to Petitioner’s claims
and defenses in the California Action. The Requests for Production of Documents are
unambiguous and narrowly tailored to the pleadings at issue and seek only relevant information
regarding the property Nidhi owns and her business ties to Prashant and Mita as it relates to
Petitioner’s claims and defenses. See Exhibit F to Affirmation.
26. The subpoena is not unduly burdensome. Though the proceeding is pending in
California, Petitioner proposed a deposition location in New York within a few miles of Nidhi’s
residence and invited Nidhi to contact Petitioner’s counsel if she needed accommodations. See
Exhibit I to Affirmation.
27. The information sought cannot reliably be obtained from other sources. Prashant
and Mita have falsely testified in response to discovery requests in the California Action that
they have no interest in the Arkansas properties, so they cannot be depended upon to testify
truthfully on the subject. See Affirmation ¶16; Exhibit E to Affirmation (Prashant listed as
secretary). Thus, Nidhi is a critically important witness in the California proceeding.
PETITIONER IS ENTITLED TO AN ORDER COMPELLING NIDHI TO
COMPLY WITH THE SUBPOENA
28. CPLR § 3124 provides in relevant part that “[i]f a person fails to respond to or
comply with any request, notice, interrogatory, demand, question or order … the party seeking
disclosure may move to compel compliance or a response.” See CPLR § 3124.
29. Nidhi was personally served pursuant to CPLR § 308 by delivering the subpoena
within New York to her and/or “by delivering the summons within the state to a person of
suitable age and discretion at … [her] dwelling place.” The subpoena was also mailed by first
class mail to her residence. See Declaration of Proof of Service, Exhibit F.
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30. The notice, subpoena, and documents requests amply satisfied the notice
requirements of CPLR § 3101(a)(4) by informing Nidhi of the “circumstances or reasons” the
disclosure is sought or required. See e.g., Kapon v. Koch, 988 N.Y.S.2d 559, 565 (N.Y. 2014)
(including “the date, time, and location of the depositions” and case information of the action
“detailing the relationship between [the nonparty and defendant]” satisfied the “minimal
obligation” of the subpoenaing party to “apprise a stranger to the litigation the ‘circumstances or
reasons’ why the requested disclosure was sought).”
31. Nidhi has failed to comply with the subpoena by failing to appear at deposition
and produce relevant documents requested in the subpoena. Petitioner will be prejudiced if Nidhi
is allowed to continue to flout the subpoena. Indeed, Petitioner’s ability to defend against the
claims brought by Nidhi’s parents, Prashant and Mita, will be significantly impaired without the
documents and testimony duly demanded of Nidhi.
32. As demonstrated above, Nidhi’s conduct was calculated to and actually did
defeat, impair, impede, and prejudice the rights and remedies of Petitioner, in that Petitioner has
been unable to obtain information on matters relevant to his claims and defenses. Nidhi was
clearly aware of the deposition, as she twice cut short the conversation with counsel for
Petitioner over the phone when he began asking questions about the deposition. Accordingly,
Nidhi should be compelled to comply with the subpoena. See e.g., Jim Walter Doors v.
Greenburg, 151 A.D.2d 550, 551 (2d Dep’t 1989).
33. Thus, Petitioner is entitled to an order from this Court compelling Nidhi to
comply with the subpoena by producing all documents responsive to the subpoena and appearing
for testimony at deposition. See CPLR § 3124.
///
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NIDHI VAGHASHIA SHOULD BE HELD IN CONTEMPT FOR HER
DELIBERATE DISOBEDIENCE OF THE SUBPOENA AND EVASION OF
PROCESS WHICH IMPAIRED, IMPEDED, AND PREJUDICED THE RIGHTS
OF PETITIONER
34. Failure to comply with a subpoena issued by an officer of the court is punishable
as contempt of the court, and this court has the specific power to punish Nidhi for disobeying the
Subpoena. See CPLR § 2308; see also Judiciary Law § 753(A)(5).
35. To sustain a finding of civil contempt, “it is not necessary that disobedience be
deliberate or willful; rather, the mere act, regardless of motive, is sufficient to sustain a finding
of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a
party.” Commissioner of Labor v. Hinman, 478 N.Y.S.2d 116, 119 (3d Dep’t 1984); see also Jim
Walter Doors v. Greenburg, 151 A.D.2d 550, 551 (2d Dep’t 1989).
36. As evidenced by Nidhi’s conduct on the phone with Petitioner’s counsel on
December 9, 2021, Nidhi has deliberately disobeyed the subpoena by failing to appear at the
deposition and failing to produce the requested documents even though she received the
subpoena and understood its purpose. See Exhibit I to Affirmation.
37. Accordingly, Petitioner respectfully requests that Nidhi be adjudicated in
contempt of Court, and for such other and further relief as the Court deems just and proper. See
CPLR § 2308l; see also Jim Walter Doors, 151 A.D.2d at 551.
(Continued on following page)
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PRAYER FOR RELIEF
WHEREFORE, it is respectfully requested that the Court: (i) order that Nidhi Vaghashia
pursuant to the subpoena served on her on November 22, 2021, produce documents and appear
for deposition at 594 Broadway, Suite 701, New York, NY 10012, on February 15, 2022
commencing at 10:00 a.m., or a date to be set by the Court as soon thereafter but not exceeding
close of discovery on February 28, 2022; (ii) that Nidhi be held in contempt and costs awarded to
Petitioner in the amount of $100.00, together with a penalty in the amount of $50.00 as partial
recompense for the costs; and (iii) grant Petitioner such other and further relief as the Court may
deem just and proper.
Dated: January 12, 2022.
Respectfully submitted,
ENENSTEIN PHAM & GLASS
By:
Ned M. Gelhaar
Two Logan Square
100 N. 18th Street, Suite 300
Philadelphia PA 19103
(626) 320-3598
Attorneys for Petitioner Govind R. Vaghashia
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FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 SUPREME COURT OF THE STATE OF NEW YORK X COUNTY OF NEW YORK : PETITION FOR ----------------------------------------------------------------------- : ENFORCEMENT OF A SUBPOENA FOR THE : TESTIMONY OF NIDHI VAGHASHIA AND FOR : ADJUDICATION OF In the Matter of the Application of Govind R. Vaghashia CONTEMPT to Enforce a Subpoena for the Testimony of : Nidhi Vaghashia : Index No.: : RJI No.: ----------------------------------------------------------------------- X Petitioner Govind R. Vaghashia (“Petitioner” or “Govind”), by and through his counsel, Enenstein Pham & Glass, submits this petition for enforcement of a subpoena for testimony and production of documents from Nidhi Vaghashia (“Respondent” or “Nidhi”), pursuant to New York Civil Practice Law and Rules (“CPLR”) Article 31 § 3119, Article 31 § 3124, Article 23 § 2308 and Judiciary Law § 753. INTRODUCTION 1. Petitioner submits this Petition and the supporting Affirmation for enforcement of a subpoena that was issued under CPLR § 3119, the Uniform Interstate Depositions and Discovery Act. The subpoena calls for the testimony of an individual, Nidhi Vaghashia, for use in a case currently pending in the Superior Court of California, County of Los Angeles, Govind Vaghashia et. al v. Prashant Vaghashia et. al (Case No. BC696133), (hereinafter the “California Action”). Nidhi, a percipient witness to material events in the litigation, resides in New York, New York. Petitioner served Nidhi at her residence in New York with an information subpoena requesting production of relevant documents and commanding her attendance at a deposition in New York, but Nidhi failed to appear. 1 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 2. Petitioner respectfully requests that this Court order Nidhi to comply with the subpoena and appear for deposition and produce the requested documents and for Nidhi to be held in contempt for disobedience of the subpoena. PARTIES 3. Petitioner Govind R. Vaghashia is an individual residing in Burbank, California. 4. Respondent Nidhi is the daughter of Prashant and Mita Vaghashia, Defendants in the above referenced California Action, and niece of Govind R. Vaghashia. Respondent Nidhi currently resides at 2 Gold Street., Apt. 2303, New York, New York 10038. RELEVANT CPLR AND CALIFORNIA PROVISIONS 5. CPLR § 3119 provides, in relevant part: (a) Definitions. For purposes of this section: (1) “Out-of-state subpoena” means a subpoena issued under authority of a court of record of a state other than this state. * * * (4) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to: (i) attend and give testimony at a deposition; (ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody or control of the person … * * * (b) Issuance of subpoena. * * * (1) To request issuance of a subpoena under this section, a party must submit an out-of-state subpoena to the county clerk in the county in which discovery is sought to be conducted in this state … (2) When a party submits an out-of-state subpoena to the county clerk, the clerk, in accordance with that court’s procedure and subject to the provisions of article twenty-three of this chapter, shall promptly issue a subpoena for service upon the person to which the out-of-state subpoena is directed. 2 2 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 (4) Notwithstanding paragraph one of this subdivision, if a party to an out-of- state proceeding retains an attorney licensed to practice in this state, and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section. (e) Application to court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under this section must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be continued. The California Code of Civil Procedure (“CCP”) § 2026.010, Depositions in another state of the United States, provides in relevant part: (c) If the deponent is not a party to the action or an officer, director, managing agent, or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state … where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity.” 6. For the reasons set forth below, Govind’s subpoena was appropriately issued under CPLR § 3119, and should be enforced. See Hyatt v. State Franchise Tax, 962 N.Y.S.2d 282, 287, 292 (App. Div. 2013) (CPLR § 3119 “provides that out-of-state judicial subpoenas can be submitted to either the county clerk or an attorney licensed in New York [for issuance of the subpoena], but does not require judicial review of the subpoenas before they are served”). PROCEDURAL AND FACTUAL BACKGROUND 7. Petitioner Govind Vaghashia and Nidhi’s parents (Prashant Vaghashia and Mita Vaghashia) are parties to a case pending in California. Govind initiated the California Action, alleging causes of action against Prashant and Mita Vaghashia for: (i) declaratory relief, (ii) appointment of a provisional director under Cal. Corp. Code §308, (iii) removal of director; and (iv) breach of fiduciary duty. In his complaint, Govind alleges, among other things, that Prashant and Mita embezzled funds from a corporation of which he and Prashant are shareholders, 3 3 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 Graphic Research, Inc. See Exhibit A to concurrently filed Affirmation in Support of Petition For Enforcement (“Affirmation”). 8. On March 22, 2018, Prashant and Mita filed their Answer and brought a cross- complaint against Govind. Prashant and Mita contend that in 1984, Govind invited Prashant to enter into a general partnership whereby everything Govind currently owned in 1984 and everything Govind acquired thereafter (including Govind’s personal residence, personal effects, automobiles, and personal property), form an unwritten, general partnership between Govind and his wife, Sonal, and Prashant and Mita. See Exhibit B to Affirmation. 9. On March 14, 2019, the Vaghashia Family Limited Partnership and Sherman Oaks First Plaza, LLC filed a complaint in the United States District Court for the Central District of California, Case No. 2:19-cv-01876, against Prashant, Mita, Nidhi and others asserting fourteen causes of action, including claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et. seq. (“RICO”), fraudulent misrepresentation, concealment, breach of contract, false promise, common count, and conversion (the “RICO Case”). See Affirmation ¶ 5. Govind’s present counsel appeared on behalf of the plaintiff. Id. On June 10, 2019, M. Cris Armenta, of the Armenta Law Firm, appeared on behalf of Prashant, Mita and Nidhi Vaghashia in the RICO Case. See Exhibit C to Affirmation. On November 1, 2019, the U.S. District Court stayed the RICO Case pending resolution of the California Action. See Affirmation ¶ 5. 10. Trial in the California Action is set for March 28, 2022. See Affirmation ¶ 6. Govind filed a motion to bifurcate the trial into two phases, which the court granted on September 28, 2021. Id. Pursuant to the Court’s order, Phase One of the trial will determine whether an oral partnership existed between the parties. Id. 11. Respondent Nidhi is Prashant and Mita’s daughter and is a percipient witness to certain important facts and circumstances in the California Action. See Affirmation ¶ 7. In particular, Prashant and Mita appear to have an interest in a hotel in Arkansas that is purportedly 4 4 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 owned by Nidhi, despite claiming they have no involvement. Id. In the declaration of Gary Smith, submitted in the RICO Case, Mr. Smith attests that he performed accounting services on behalf of Econo Lodge in Hot Springs, Arkansas, for Harshika Shroff. Ms. Shroff told Mr. Smith that she was selling the Econo Lodge to Prashant Patel (a friend and associate of Prashant Vaghashia) and Nidhi. Exhibit D to Affirmation. Mr. Patel later asked Mr. Smith to provide similar accounting services for a new entity that would own the restaurant located on the same property as the motel, renamed “Taste of India.” Id. at ¶ 7. Mr. Smith performed various accounting services for the new owners’ entities, Century Hospitality, Inc. dba Econo Lodge Inn & Suites and Hot Springs Restaurant and Lounge Inc. dba Taste of India. Id. at ¶ 8. Mr. Patel later transferred his shares to Nidhi. Id. at ¶ 12. 12. Hot Springs Restaurant and Lounge, Inc., is now a dissolved Arkansas entity, but was previously located at 1204 Central Ave, Hot Springs, AR and doing business under the fictitious name “Taste of India.” See Exhibit E to Affirmation. Hot Springs Restaurant and Lounge, Inc. lists Prashant Patel as its incorporator and registered agent and later added Nidhi Vaghashia as Registered Agent, President, and Secretary and Prashant Vaghashia as secretary. Id. And Century Hospitality, Inc., owner of the restaurant and hotel, listed its address as 3339 Durham Court, Burbank, CA—Prashant and Mita’s home address. Id. 13. This evidence indicates Prashant and Mita have ownership interests Hot Springs Restaurant and Lounge, Inc and Century Hospitality. The contention that in 2015, Nidhi – who was 27 at the time and living as a student in New York – acquired an ownership interest in a motel in Arkansas from a friend of Prashant Vaghashia’s (Prashant Patel) is spurious, or at least, highly suspicious. The fact that Prashant Vaghashia is listed as the Secretary of the business on filings with the Secretary of State belies the contention that Nidhi purchased it, as well as Prashant and Mita’s assertions that they have no interest in the businesses. 14. The testimony of Nidhi is therefore relevant and important to Petitioner’s claims and defenses. It is inapposite to contend Prashant and Mita are “general partners” with Govind, 5 5 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 whereby every asset acquired by any of the parties belongs to the partnership, when Prashant and Mita have ownership interests in various similar businesses throughout the United States that they hide and exclude from their “general partnership” with Govind. If the purported partnership did exist, Govind would be entitled to half of the entities purchased by Prashant and Mita during the same time period, including the hotel in Arkansas purportedly owned by Nidhi. In addition, Govind has reason to believe that the money Prashant embezzled from Govind was used to purchase the assets of Hot Springs Restaurant and Lounge, Inc. and Century Hospitality, Inc., including the hotel purportedly owned solely by Nidhi. Discovery into what entities and properties Prashant did or does in fact own, and why they are not included in the assets of the oral general partnership he alleges to have existed is thus critically important. Nidhi will also likely have information related to the nature of the business relationship between her parents and Govind Vaghashia regarding the alleged 35-year partnership. 15. Counsel for Govind issued a deposition subpoena on October 11, 2021 for the California Action noticing a deposition date of December 15, 2021, at 10:00 a.m. EST, at 711 Third Avenue, 17th Floor, New York, NY 10017 (the “California Subpoena”). See Exhibit F to Affirmation, Deposition Subpoenas and Proofs of Service. The subpoena required Nidhi to produce documents and appear for a deposition in New York related to the California Action and Govind’s claims and defenses. 16. On November 17, 2021 the County Clerk of New York County issued a Subpoena AD Testificandum and Duces Tecum pursuant to the Uniform Interstate Depositions and Discovery Act, CPLR § 3119, identifying the California Action as the originating case and California as the originating state (the “New York Subpoena”). See Exhibit F to Affirmation, Deposition Subpoenas and Proofs of Service. 17. The Amended Declaration of Due Diligence by Alvin Gonzalez indicates that both the California Subpoena and the New York Subpoena were properly served under CPLR 6 6 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 308(4) by posting and mailing after personal service could not be made with due diligence. See Exhibit F to Affirmation, Deposition Subpoenas and Proofs of Service. 18. On November 30, 2021, counsel for Govind served a Notice of Deposition of Nidhi Vaghashia on M. Cris Armenta—counsel for Prashant Vaghashia and Mita Vaghashia in the California Action and counsel for Nidhi Vaghashia in the RICO Action. See Exhibit G to Affirmation, Notice of Deposition. 19. On December 6, 2021, counsel for Govind emailed counsel for Nidhi Vaghashia in the RICO Case, Cris Armenta, again notifying counsel of the deposition of Nidhi set for December 15, 2021. Counsel for Govind noted that Ms. Armenta represented Nidhi in the RICO Action and asked that Ms. Armenta confirm whether Nidhi intended to appear and produce documents at the deposition. See Exhibit H to Affirmation. Ms. Armenta never responded to the email or subpoena. See Affirmation ¶ 13. 20. On December 8, 2021, counsel for Govind called Nidhi Vaghashia at (818) 516- 2714, asked if she was Nidhi Vaghashia, to which she responded that she was but her last name had changed. See Affirmation ¶ 14. Counsel for Govind then identified himself and asked if she was familiar with this lawsuit. Id. Nidhi stated that she had to attend a meeting and he would have to call her at another time. Id. Counsel for Govind then called Nidhi at the same number on December 9, 2021, identified himself and stated that he was calling her back as instructed, and asked if she was represented by counsel. Id. She then hung up the phone. Counsel for Govind then emailed Nidhi at nidhivaghashia@gmail.com confirming the deposition on December 15, 2021 and inquiring whether she intended to appear. See Exhibit I to Affirmation, December 9 email. 21. Nidhi failed to appear for her deposition on December 15, 2021, at 10:00 a.m., at the location 711 Third Avenue, 17th Floor, New York, New York 10017 and failed to produce the requested documents. Counsel for Govind started the deposition at 10:30 a.m. and made a record of Nidhi’s failure to appear. See Exhibit J to Affirmation, Deposition Transcript. As a 7 7 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 result of her failure to comply with the subpoena and her failure to notify Petitioner’s counsel that she would not attend, Petitioner’s counsel, staff, and the court reporter were all inconvenienced and forced to waste considerable time. NEED FOR RELIEF AND LACK OF UNDUE BURDEN 22. Nidhi has disobeyed the subpoenas by failing to produce the requested documents and failing to appear at the duly subpoenaed deposition. Petitioner’s right to conduct discovery on his claims and for his defense against Prashant and Mita’s claims has been (and continues to be) defeated, impaired, impeded and/or prejudiced since Petitioner is unable to obtain relevant documents and testimony without Nidhi’s compliance with the subpoena. See Judiciary Law § 753. 23. Non-party witness Nidhi waived any objections she may have had to the deposition subpoena and document requests by failing to move to quash the subpoena prior to the date for production of documents and the date of the deposition. See CPLR § 2304. “A motion to quash or vacate, of course, is the proper and exclusive vehicle to challenge the validity of the subpoena or the jurisdiction of the issuing authority,” and the motion “must be made promptly, generally before the return date of the subpoena.” Brunswick Hosp. Center, Inc. v. Hynes, 52 N.Y.2d 333, 340 (1981); see also People v. Burnette, 612 N.Y.S.2d 774, 776 (1994) (“it is futile to make the motion to quash returnable long after the subpoena itself is returnable”). 24. The testimony of Nidhi regarding her knowledge of Prashant and Mita’s conduct and allegations against Petitioner is relevant and important, and the scope of the subpoena is focused on precisely those topics. As discussed above, Prashant and Mita have brought counterclaims against Petitioner in the California Action and seek extensive damages based in large part on allegations of a partnership Nidhi’s parents purportedly had with Govind for approximately 35 years. Moreover, Nidhi and her father Prashant Vaghashia were named as officers of a hotel in Arkansas that Prashant and Mita have hidden from Govind and discovery in 8 8 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 the California Action. As a result, Nidhi’s testimony is crucial for Petitioner to fairly defend himself and meaningfully litigate his case against Prashant and Mita Vaghashia. 25. The subpoena is not overbroad. The documents and testimony sought in the subpoena are relevant and specifically tailored to information pertaining to Petitioner’s claims and defenses in the California Action. The Requests for Production of Documents are unambiguous and narrowly tailored to the pleadings at issue and seek only relevant information regarding the property Nidhi owns and her business ties to Prashant and Mita as it relates to Petitioner’s claims and defenses. See Exhibit F to Affirmation. 26. The subpoena is not unduly burdensome. Though the proceeding is pending in California, Petitioner proposed a deposition location in New York within a few miles of Nidhi’s residence and invited Nidhi to contact Petitioner’s counsel if she needed accommodations. See Exhibit I to Affirmation. 27. The information sought cannot reliably be obtained from other sources. Prashant and Mita have falsely testified in response to discovery requests in the California Action that they have no interest in the Arkansas properties, so they cannot be depended upon to testify truthfully on the subject. See Affirmation ¶16; Exhibit E to Affirmation (Prashant listed as secretary). Thus, Nidhi is a critically important witness in the California proceeding. PETITIONER IS ENTITLED TO AN ORDER COMPELLING NIDHI TO COMPLY WITH THE SUBPOENA 28. CPLR § 3124 provides in relevant part that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order … the party seeking disclosure may move to compel compliance or a response.” See CPLR § 3124. 29. Nidhi was personally served pursuant to CPLR § 308 by delivering the subpoena within New York to her and/or “by delivering the summons within the state to a person of suitable age and discretion at … [her] dwelling place.” The subpoena was also mailed by first class mail to her residence. See Declaration of Proof of Service, Exhibit F. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 30. The notice, subpoena, and documents requests amply satisfied the notice requirements of CPLR § 3101(a)(4) by informing Nidhi of the “circumstances or reasons” the disclosure is sought or required. See e.g., Kapon v. Koch, 988 N.Y.S.2d 559, 565 (N.Y. 2014) (including “the date, time, and location of the depositions” and case information of the action “detailing the relationship between [the nonparty and defendant]” satisfied the “minimal obligation” of the subpoenaing party to “apprise a stranger to the litigation the ‘circumstances or reasons’ why the requested disclosure was sought).” 31. Nidhi has failed to comply with the subpoena by failing to appear at deposition and produce relevant documents requested in the subpoena. Petitioner will be prejudiced if Nidhi is allowed to continue to flout the subpoena. Indeed, Petitioner’s ability to defend against the claims brought by Nidhi’s parents, Prashant and Mita, will be significantly impaired without the documents and testimony duly demanded of Nidhi. 32. As demonstrated above, Nidhi’s conduct was calculated to and actually did defeat, impair, impede, and prejudice the rights and remedies of Petitioner, in that Petitioner has been unable to obtain information on matters relevant to his claims and defenses. Nidhi was clearly aware of the deposition, as she twice cut short the conversation with counsel for Petitioner over the phone when he began asking questions about the deposition. Accordingly, Nidhi should be compelled to comply with the subpoena. See e.g., Jim Walter Doors v. Greenburg, 151 A.D.2d 550, 551 (2d Dep’t 1989). 33. Thus, Petitioner is entitled to an order from this Court compelling Nidhi to comply with the subpoena by producing all documents responsive to the subpoena and appearing for testimony at deposition. See CPLR § 3124. /// 10 10 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 NIDHI VAGHASHIA SHOULD BE HELD IN CONTEMPT FOR HER DELIBERATE DISOBEDIENCE OF THE SUBPOENA AND EVASION OF PROCESS WHICH IMPAIRED, IMPEDED, AND PREJUDICED THE RIGHTS OF PETITIONER 34. Failure to comply with a subpoena issued by an officer of the court is punishable as contempt of the court, and this court has the specific power to punish Nidhi for disobeying the Subpoena. See CPLR § 2308; see also Judiciary Law § 753(A)(5). 35. To sustain a finding of civil contempt, “it is not necessary that disobedience be deliberate or willful; rather, the mere act, regardless of motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party.” Commissioner of Labor v. Hinman, 478 N.Y.S.2d 116, 119 (3d Dep’t 1984); see also Jim Walter Doors v. Greenburg, 151 A.D.2d 550, 551 (2d Dep’t 1989). 36. As evidenced by Nidhi’s conduct on the phone with Petitioner’s counsel on December 9, 2021, Nidhi has deliberately disobeyed the subpoena by failing to appear at the deposition and failing to produce the requested documents even though she received the subpoena and understood its purpose. See Exhibit I to Affirmation. 37. Accordingly, Petitioner respectfully requests that Nidhi be adjudicated in contempt of Court, and for such other and further relief as the Court deems just and proper. See CPLR § 2308l; see also Jim Walter Doors, 151 A.D.2d at 551. (Continued on following page) 11 11 of 12 FILED: NEW YORK COUNTY CLERK 01/13/2022 01:06 AM INDEX NO. 150385/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2022 PRAYER FOR RELIEF WHEREFORE, it is respectfully requested that the Court: (i) order that Nidhi Vaghashia pursuant to the subpoena served on her on November 22, 2021, produce documents and appear for deposition at 594 Broadway, Suite 701, New York, NY 10012, on February 15, 2022 commencing at 10:00 a.m., or a date to be set by the Court as soon thereafter but not exceeding close of discovery on February 28, 2022; (ii) that Nidhi be held in contempt and costs awarded to Petitioner in the amount of $100.00, together with a penalty in the amount of $50.00 as partial recompense for the costs; and (iii) grant Petitioner such other and further relief as the Court may deem just and proper. Dated: January 12, 2022. Respectfully submitted, ENENSTEIN PHAM & GLASS By: Ned M. Gelhaar Two Logan Square 100 N. 18th Street, Suite 300 Philadelphia PA 19103 (626) 320-3598 Attorneys for Petitioner Govind R. Vaghashia 12 12 of 12