Preview
FILED: NEW YORK COUNTY CLERK 09/03/2015 05:24 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------X
PETER STERN and EXPRESS TRADE CAPITAL,
INC., Index No. 653476/13
Plaintiffs, ATTORNEY'S AFFIRMATION
IN OPPOSITION TO
-against- MOTION TO DISMISS
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO,
LLC, a Washington limited liability company,
Defendants.
-----------------------------------------X
DAVID ESTRAKH, being an attorney at law, duly admitted to practice before the Courts
ofthe State ofNew York, does hereby affirm the truth ofthe following statements under penalty
of perjury pursuant to CPLR 2106:
1. I am the former counsel of record for Plaintiffs Peter Stem and Express Trade
Capital, Inc. (collectively, "the Plaintiffs") in the above-captioned action.
2. I am fully familiar with all the proceedings had in this action and the facts and
circumstances set forth below. I respectfully submit this Affirmation in opposition to the
Defendants' motion to dismiss this action due to my non-appearance at the August 3, 2015
compliance conference.
3. I missed the August 3, 2015 compliance conference due to a calendaring error on
my part.
4. I had inadvertently scheduled the conference on my calendar for the next day,
Tuesday, August 4, 2015.
5. On August 3, 2015, I was out of state.
6. My flight arrived into New York on August 3, 2015 at approximately 2:30pm.
7. Upon discovering my error in calendaring, on the afternoon of August 3, 2015 I
immediately contacted Defendants' counsel to apologize and offered to reimburse them for their
appearance. A true and correct copy of my correspondence with Defendants' counsel is attached
as Exhibit A.
8. I sincerely apologize to the Court, to opposing counsel, and to the Defendants for
my error and for the inconvenience that it caused.
9. I submit, however, that the Plaintiffs should not suffer the harsh sanction of
dismissing their complaint due to my calendaring mistake.
10. The affidavits of Peter Stem and Douglas Milo explain that the Plaintiffs have
meritorious claims.
11. This action should be decided on the merits.
12. The Defendants will not be unfairly prejudiced if this action is adjudicated on the
merits.
13. It is respectfully submitted that the Defendants' motion to dismiss should be
denied, and that the compliance conference should be rescheduled.
Dated: New York, New York
August 215, 2015
~c~
DAVID ESTRAKH
2
EXHIBIT A
-
From: Robert Bondar
Date: Mon, Aug 3, 2015 at 6:36PM
Subject: Re: Missed Appearance - Delex Case
To: David Estrakh
Mr. Estrakh,
This is the second conference that you missed without any justification or excuse. I intend to make a motion to dismiss as per
the court's order.
Thank you,
Robert Bondar, Esq.
Law office of Robert Bondar
28 Dooley St.
3 fl.
Brooklyn, NY 11235
tel. (347)462-3262
Fax(347)462-3261
This e-mail may contain privileged and confidential in formation and is intended only for the use of the specific individual(s) to whom
it is addressed. If you are not an intended recipient of this e-mai l, you are hereby notified that any unauthorized use, dissemination or
copying of this e-mail or the information contained in it or attached to it is strictly prohibited. If you have received this e-mail in error,
please immediately notify the person named above by reply e-mail and then delete this e-mail. Thank you.
From: David Estrakh
Date: Monday, August 3, 2015 at 6:29 PM
To: Robert Bondar
Subject: Missed Appearance - Delex Case
Mr. Bondar:
I left a message with your office earlier today but here's what I wanted to say . ..
Due to an inadvertent calendaring error, I missed the compliance conference scheduled for today, August 3,
2015. This was complete oversight on my part. I was out of town today visiting family over the weekend, as I
had the conference scheduled on my calendar for tomorrow, August 4, 2015 (see attached for my flight back). I
1
sincerely apologize for the inconvenience caused you. To make amends, in good faith, I offer to reimburse you
some reasonable expenses for today's appearance.
As you may know, although I am an attorney employed by Express, my role at the company is mostly
operational, not legal. As such, I have retained new counsel to handle thisaction in a more proper fashion
because, honestly, I believe my performance thus far has been less than adequate. He was actually supposed to
come in with me tomorrow which is when I thought the court date was.
In light of the above, I would appreciate if you would agree to reschedule a new compliance conference
date. As we are both way outside the dates set in the preliminary conference, it would be nice to get together
and set a new schedule so we can allget back on track. Plus, you can formally meet new counsel. I'm sure it
will be much easier to figure things out with them together going forward. Unlike me, they do court practice on
a daily basis while I'm really more of an operational employee with a law degree. Given the history and
disposition of this case, I understand you may not be in favor of agreeing to simply reschedule a compliance
conference and move forward. However, I'm hoping we can put the past behind us and get a fresh start here.
I hope to hear from you soon.
Regards,
David Estrakh
Mobile: 516 765 5565
2
August 3, 2015
HON. SHLOMO S. HAGLER
60 Centre Street, Room, Room 631
New York, NY 10013
Phone: (646) 386-5691
Re: Missed Compliance Conference (Index# 653476-2013)
Dear Justice Hagler:
I am counsel of record for the plaintiffs, Express Trade Capital and Peter Stern in the
above-referenced action.
Due to an inadvertent calendaring error, I missed the compliance conference
scheduled for today, August 3, 2015. This was complete oversight on my part. I was
out of town today, as I had the conference scheduled on my calendar for tomorrow,
August 4, 2015. I sincerely apologize for the inconvenience caused to the Court and
to defendants' counsel.
I have reached out to defendants' counsel to offer to reimburse them for their
appearance in Court today.
Although I am an attorney employed by the plaintiff's company, my role at the
company is mostly operational, not legal.
Therefore, the plaintiffs are retaining new counsel to handle this action.
Please note that the plaintiffs do intend to proceed in the prosecution of their claims
on the merits, and did not, and do not, intend to waive any of their claims, rights or
remedies.
In light of the above, we respectfully request that the Court schedule a new
compliance conference, so that we can promptly set a timetable for the completion of
discovery and resolve this action on the merits.
Again, I offer my sincerest apologies to both the Court and opposing counsel for my
inadvertent error today, and assure the Court that this will not happen again.
Sincerely,
David Estrakh, Esq.
!'>.V\vw.oxprcssttadecnpita1 con1
Cc: LAW OFFICE OF ROBERT BONDAR
Attorney for Defendants-Appellants
28 Dooley Street, 3rd Floor
Brooklyn, New York 11235
(347) 462-3262
rbondar@bondarlaw.com
\VWW,f)Xp(GSStra()rJCHpita\ C()l~)
Preview
FILED: NEW YORK COUNTY CLERK 09/03/2015 05:24 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 09/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC., Index No. 653476/13 Plaintiffs, ATTORNEY'S AFFIRMATION IN OPPOSITION TO -against- MOTION TO DISMISS OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, LLC, a Washington limited liability company, Defendants. -----------------------------------------X DAVID ESTRAKH, being an attorney at law, duly admitted to practice before the Courts ofthe State ofNew York, does hereby affirm the truth ofthe following statements under penalty of perjury pursuant to CPLR 2106: 1. I am the former counsel of record for Plaintiffs Peter Stem and Express Trade Capital, Inc. (collectively, "the Plaintiffs") in the above-captioned action. 2. I am fully familiar with all the proceedings had in this action and the facts and circumstances set forth below. I respectfully submit this Affirmation in opposition to the Defendants' motion to dismiss this action due to my non-appearance at the August 3, 2015 compliance conference. 3. I missed the August 3, 2015 compliance conference due to a calendaring error on my part. 4. I had inadvertently scheduled the conference on my calendar for the next day, Tuesday, August 4, 2015. 5. On August 3, 2015, I was out of state. 6. My flight arrived into New York on August 3, 2015 at approximately 2:30pm. 7. Upon discovering my error in calendaring, on the afternoon of August 3, 2015 I immediately contacted Defendants' counsel to apologize and offered to reimburse them for their appearance. A true and correct copy of my correspondence with Defendants' counsel is attached as Exhibit A. 8. I sincerely apologize to the Court, to opposing counsel, and to the Defendants for my error and for the inconvenience that it caused. 9. I submit, however, that the Plaintiffs should not suffer the harsh sanction of dismissing their complaint due to my calendaring mistake. 10. The affidavits of Peter Stem and Douglas Milo explain that the Plaintiffs have meritorious claims. 11. This action should be decided on the merits. 12. The Defendants will not be unfairly prejudiced if this action is adjudicated on the merits. 13. It is respectfully submitted that the Defendants' motion to dismiss should be denied, and that the compliance conference should be rescheduled. Dated: New York, New York August 215, 2015 ~c~ DAVID ESTRAKH 2 EXHIBIT A - From: Robert Bondar Date: Mon, Aug 3, 2015 at 6:36PM Subject: Re: Missed Appearance - Delex Case To: David Estrakh Mr. Estrakh, This is the second conference that you missed without any justification or excuse. I intend to make a motion to dismiss as per the court's order. Thank you, Robert Bondar, Esq. Law office of Robert Bondar 28 Dooley St. 3 fl. Brooklyn, NY 11235 tel. (347)462-3262 Fax(347)462-3261 This e-mail may contain privileged and confidential in formation and is intended only for the use of the specific individual(s) to whom it is addressed. If you are not an intended recipient of this e-mai l, you are hereby notified that any unauthorized use, dissemination or copying of this e-mail or the information contained in it or attached to it is strictly prohibited. If you have received this e-mail in error, please immediately notify the person named above by reply e-mail and then delete this e-mail. Thank you. From: David Estrakh Date: Monday, August 3, 2015 at 6:29 PM To: Robert Bondar Subject: Missed Appearance - Delex Case Mr. Bondar: I left a message with your office earlier today but here's what I wanted to say . .. Due to an inadvertent calendaring error, I missed the compliance conference scheduled for today, August 3, 2015. This was complete oversight on my part. I was out of town today visiting family over the weekend, as I had the conference scheduled on my calendar for tomorrow, August 4, 2015 (see attached for my flight back). I 1 sincerely apologize for the inconvenience caused you. To make amends, in good faith, I offer to reimburse you some reasonable expenses for today's appearance. As you may know, although I am an attorney employed by Express, my role at the company is mostly operational, not legal. As such, I have retained new counsel to handle thisaction in a more proper fashion because, honestly, I believe my performance thus far has been less than adequate. He was actually supposed to come in with me tomorrow which is when I thought the court date was. In light of the above, I would appreciate if you would agree to reschedule a new compliance conference date. As we are both way outside the dates set in the preliminary conference, it would be nice to get together and set a new schedule so we can allget back on track. Plus, you can formally meet new counsel. I'm sure it will be much easier to figure things out with them together going forward. Unlike me, they do court practice on a daily basis while I'm really more of an operational employee with a law degree. Given the history and disposition of this case, I understand you may not be in favor of agreeing to simply reschedule a compliance conference and move forward. However, I'm hoping we can put the past behind us and get a fresh start here. I hope to hear from you soon. Regards, David Estrakh Mobile: 516 765 5565 2 August 3, 2015 HON. SHLOMO S. HAGLER 60 Centre Street, Room, Room 631 New York, NY 10013 Phone: (646) 386-5691 Re: Missed Compliance Conference (Index# 653476-2013) Dear Justice Hagler: I am counsel of record for the plaintiffs, Express Trade Capital and Peter Stern in the above-referenced action. Due to an inadvertent calendaring error, I missed the compliance conference scheduled for today, August 3, 2015. This was complete oversight on my part. I was out of town today, as I had the conference scheduled on my calendar for tomorrow, August 4, 2015. I sincerely apologize for the inconvenience caused to the Court and to defendants' counsel. I have reached out to defendants' counsel to offer to reimburse them for their appearance in Court today. Although I am an attorney employed by the plaintiff's company, my role at the company is mostly operational, not legal. Therefore, the plaintiffs are retaining new counsel to handle this action. Please note that the plaintiffs do intend to proceed in the prosecution of their claims on the merits, and did not, and do not, intend to waive any of their claims, rights or remedies. In light of the above, we respectfully request that the Court schedule a new compliance conference, so that we can promptly set a timetable for the completion of discovery and resolve this action on the merits. Again, I offer my sincerest apologies to both the Court and opposing counsel for my inadvertent error today, and assure the Court that this will not happen again. Sincerely, David Estrakh, Esq. !'>.V\vw.oxprcssttadecnpita1 con1 Cc: LAW OFFICE OF ROBERT BONDAR Attorney for Defendants-Appellants 28 Dooley Street, 3rd Floor Brooklyn, New York 11235 (347) 462-3262 rbondar@bondarlaw.com \VWW,f)Xp(GSStra()rJCHpita\ C()l~)