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FILED: NEW YORK COUNTY CLERK 05/19/2016 01:25 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 05/19/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------X
PETER STERN and EXPRESS TRADE CAPITAL,
INC., Index No. 653476113
(J.Hagler)
Plaintiffs,
-against- AFFIRMATION OF
LON SEIDMAN
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.
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LON J. SEIDMAN, an attorney duly admitted to the courts of the State ofNew York,
hereby affirms the following to be true under the penalties of perjury:
Introduction
1. I am a partner with the firm of Diamond McCarthy LLP, counsel to the
Plaintiffs herein.
2. I am fully familiar with the facts and circumstances set forth below and submit
this Affirmation in support of Plaintiffs' motion pursuant to CPLR 3124 and CPLR 3126 for an
order: ( 1) (a) compelling the Defendants to produce all documents responsive to Plaintiffs' First and
Second Request for Production of Documents within 14 days or (b) alternatively, precluding the
Defendants from offering any evidence in opposition to the Plaintiffs complaint at summary
judgment or trial, together with (2) Plaintiffs attorneys' fees and costs in making this motion, which
amount to date is approximately $2,500, as a result of the defendants' prolonged failure and refusal
to produce any documents in discovery in this action, and (3) such other and further relief in favor of
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Plaintiffs and against Defendants as the Court deems appropriate under the circumstances.
This Action for Defendants' Failure to Pay More than $500,000
3. This action concerns the defendant's failure to pay more than $500,000 owed
for the purchase of a 50% ownership interest in a valuable company.
4. Attached as Exhibit A is a copy of Plaintiff Peter Stern's Affidavit
substantiating the merit of Plaintiffs' claims.
5. Attached as Exhibit B is a copy of non-party accountant Douglas Milo's
Affidavit further substantiating the merit of Plaintiffs' claims.
The Plaintiffs' Document Requests
6. On or about March 16, 2015, the Plaintiffs served their First Request for
Production of Documents. A true and correct copy of Plaintiffs' First Request for Production of
Documents is annexed as Exhibit C.
7. On December 29, 2015, the Plaintiffs served their Second Request for
Production of Documents. A true and correct copy of Plaintiffs' First Request for Production of
Documents is annexed as Exhibit D.
Plaintiffs' Good Faith Efforts Over 4 Months to Resolve Defendants' Discovery Failure
8. As further explained below, in accordance with Uniform Rule 202.7, the
Plaintiffs have made repeated good faith efforts over the past more than six (6) months to obtain the
Defendants' documents and resolve the issue raised by this motion.
9. Despite Plaintiffs' good faith efforts and requests, the Defendants have failed
and refused to provide any document discovery in this action.*
* In response to the First Request, the Defendants objected to every document requested.
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10. Plaintiffs' counsel's requests that the Defendants provide their overdue
document discovery date back to at least January 8, 2016. A true and correct copy of Plaintiffs'
counsel's January 8, 2016letter is annexed as Exhibit E.
11. Plaintiffs' counsel sent a follow-up letter dated January 27, 2016 regarding
Defendants' failure to respond. A true and correct copy of Plaintiffs' counsel's January 27, 2016
letter is annexed as Exhibit F.
12. Having not received any documents in response to the January 8 and January
27, 2016letters, on February 4, 2016, the Plaintiffs' counsel sent an email to Defendants' counsel
about their failure to provide any document discovery. A true and correct copy of Plaintiffs'
counsel's February 4, 2016 email is annexed as Exhibit G.
13. On February 4, 2016, Defendants' counsel replied that the Defendants would
be providing the document discovery "within the next two weeks", i.e.,on or before February
18. (See Exhibit G).
14. On February 23, 2016, Defendants' counsel advised that Defendants needed
an additional 10 days to produce their documents, i.e., until March 4. A true and correct copy of
Plaintiffs' counsel's February 23, 2016 email is annexed as Exhibit H.
15. On March 24,2016, having still having not received any document discovery
from the Defendants, Plaintiffs' counsel again wrote a letter to Defendants' counsel -- again
requesting the Defendants' document discovery. A true and correct copy of Plaintiffs' counsel's
March 24 letter is annexed as Exhibit I.
16. On March 25, 2016, Defendants' counsel replied by email and stated that
Defendants' document production would be provided on or before April 14, 2016. A true and
correct copy of Plaintiffs' counsel's March 25 email is annexed as Exhibit J.
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The Court's Apri14, 2016 Compliance Order
17. On April 4, 2016, the parties appeared before the Court for a Compliance
Conference, at which this Court issued a Compliance Conference Order requiring that all outstanding
documents be produced within 14 days thereof, i.e., on or before April 18. A true and correct copy
of the Court's April4 Compliance Conference Order is annexed as Exhibit K.
18. To date, the Defendants have still produced no documents.
19. Thus, the Defendants have failed to comply with the Court's Compliance
Conference Order.
20. A true and correct copy of Plaintiffs' Complaint 1s annexed hereto as
Exhibit L.
Conclusion/Relief Requested
21. Over the past many months the Plaintiffs have exercised an extraordinary
amount of good faith in dealing with Defendants' total failure to comply with its discovery
obligations and produce their documents.
WHEREFORE, it is respectfully submitted that the Plaintiffs' Motion should be granted, and
the Court should issue an order: (l)(a) compelling the Defendant to produce all documents
responsive to the Plaintiffs' First and Second Request for Production of Documents within 14 days;
or, (b) alternatively, precluding the Defendants from offering any evidence in opposition to the
Plaintiff's complaint at summary judgment and trial, and (2) awarding Plaintiffs their attorneys' fees
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and costs in making this motion, which amount of attorneys' fees to date is approximately $2,7 50,
and (3) awarding Plaintiffs such other and further relief as the Court deems appropriate under the
circumstances.
Dated: New York, New York
May 19,2016
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Preview
FILED: NEW YORK COUNTY CLERK 05/19/2016 01:25 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 05/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC., Index No. 653476113 (J.Hagler) Plaintiffs, -against- AFFIRMATION OF LON SEIDMAN 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 LON J. SEIDMAN, an attorney duly admitted to the courts of the State ofNew York, hereby affirms the following to be true under the penalties of perjury: Introduction 1. I am a partner with the firm of Diamond McCarthy LLP, counsel to the Plaintiffs herein. 2. I am fully familiar with the facts and circumstances set forth below and submit this Affirmation in support of Plaintiffs' motion pursuant to CPLR 3124 and CPLR 3126 for an order: ( 1) (a) compelling the Defendants to produce all documents responsive to Plaintiffs' First and Second Request for Production of Documents within 14 days or (b) alternatively, precluding the Defendants from offering any evidence in opposition to the Plaintiffs complaint at summary judgment or trial, together with (2) Plaintiffs attorneys' fees and costs in making this motion, which amount to date is approximately $2,500, as a result of the defendants' prolonged failure and refusal to produce any documents in discovery in this action, and (3) such other and further relief in favor of 1 of 5 Plaintiffs and against Defendants as the Court deems appropriate under the circumstances. This Action for Defendants' Failure to Pay More than $500,000 3. This action concerns the defendant's failure to pay more than $500,000 owed for the purchase of a 50% ownership interest in a valuable company. 4. Attached as Exhibit A is a copy of Plaintiff Peter Stern's Affidavit substantiating the merit of Plaintiffs' claims. 5. Attached as Exhibit B is a copy of non-party accountant Douglas Milo's Affidavit further substantiating the merit of Plaintiffs' claims. The Plaintiffs' Document Requests 6. On or about March 16, 2015, the Plaintiffs served their First Request for Production of Documents. A true and correct copy of Plaintiffs' First Request for Production of Documents is annexed as Exhibit C. 7. On December 29, 2015, the Plaintiffs served their Second Request for Production of Documents. A true and correct copy of Plaintiffs' First Request for Production of Documents is annexed as Exhibit D. Plaintiffs' Good Faith Efforts Over 4 Months to Resolve Defendants' Discovery Failure 8. As further explained below, in accordance with Uniform Rule 202.7, the Plaintiffs have made repeated good faith efforts over the past more than six (6) months to obtain the Defendants' documents and resolve the issue raised by this motion. 9. Despite Plaintiffs' good faith efforts and requests, the Defendants have failed and refused to provide any document discovery in this action.* * In response to the First Request, the Defendants objected to every document requested. 2 2 of 5 10. Plaintiffs' counsel's requests that the Defendants provide their overdue document discovery date back to at least January 8, 2016. A true and correct copy of Plaintiffs' counsel's January 8, 2016letter is annexed as Exhibit E. 11. Plaintiffs' counsel sent a follow-up letter dated January 27, 2016 regarding Defendants' failure to respond. A true and correct copy of Plaintiffs' counsel's January 27, 2016 letter is annexed as Exhibit F. 12. Having not received any documents in response to the January 8 and January 27, 2016letters, on February 4, 2016, the Plaintiffs' counsel sent an email to Defendants' counsel about their failure to provide any document discovery. A true and correct copy of Plaintiffs' counsel's February 4, 2016 email is annexed as Exhibit G. 13. On February 4, 2016, Defendants' counsel replied that the Defendants would be providing the document discovery "within the next two weeks", i.e.,on or before February 18. (See Exhibit G). 14. On February 23, 2016, Defendants' counsel advised that Defendants needed an additional 10 days to produce their documents, i.e., until March 4. A true and correct copy of Plaintiffs' counsel's February 23, 2016 email is annexed as Exhibit H. 15. On March 24,2016, having still having not received any document discovery from the Defendants, Plaintiffs' counsel again wrote a letter to Defendants' counsel -- again requesting the Defendants' document discovery. A true and correct copy of Plaintiffs' counsel's March 24 letter is annexed as Exhibit I. 16. On March 25, 2016, Defendants' counsel replied by email and stated that Defendants' document production would be provided on or before April 14, 2016. A true and correct copy of Plaintiffs' counsel's March 25 email is annexed as Exhibit J. 3 3 of 5 The Court's Apri14, 2016 Compliance Order 17. On April 4, 2016, the parties appeared before the Court for a Compliance Conference, at which this Court issued a Compliance Conference Order requiring that all outstanding documents be produced within 14 days thereof, i.e., on or before April 18. A true and correct copy of the Court's April4 Compliance Conference Order is annexed as Exhibit K. 18. To date, the Defendants have still produced no documents. 19. Thus, the Defendants have failed to comply with the Court's Compliance Conference Order. 20. A true and correct copy of Plaintiffs' Complaint 1s annexed hereto as Exhibit L. Conclusion/Relief Requested 21. Over the past many months the Plaintiffs have exercised an extraordinary amount of good faith in dealing with Defendants' total failure to comply with its discovery obligations and produce their documents. WHEREFORE, it is respectfully submitted that the Plaintiffs' Motion should be granted, and the Court should issue an order: (l)(a) compelling the Defendant to produce all documents responsive to the Plaintiffs' First and Second Request for Production of Documents within 14 days; or, (b) alternatively, precluding the Defendants from offering any evidence in opposition to the Plaintiff's complaint at summary judgment and trial, and (2) awarding Plaintiffs their attorneys' fees 4 4 of 5 and costs in making this motion, which amount of attorneys' fees to date is approximately $2,7 50, and (3) awarding Plaintiffs such other and further relief as the Court deems appropriate under the circumstances. Dated: New York, New York May 19,2016 5 5 of 5