Preview
(FILED: NEW YORK COUNTY CLERK 07/05/2016 02:04 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 101 RECEIVED NYSCEF 07/05/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
mene ee een e eee n eee cece n neem n nnn nnn nn nnnnmnnennmnnnn ne]
PETER STERN and EXPRESS TRADE CAPITAL, INC.,
Plaintiff(s),
AFFIRMATION IN
OPPOSITION
Index No. '653476/2013
-against-
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.
Defendant(s).
ween
Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts of the State
of New York, hereby affirms the following to be true under the penalties of perjury:
1 I am the attorney for the Defendants herein. As such, I am fully familiar with the facts
and circumstances surrounding this action.
I submit this affirmation in opposition to Plaintiffs’ discovery motion made pursuant to
CPLR 3124, 3126. As set forth below, Plaintiffs’ application should be denied in all
respects.
Despite Plaintiff's protestations to the contrary, Defendants had participatedin the
discovery proceedings in good faith and they had produced all relevant non-privileged
court-ordered outstanding discovery to date.
Defendants had fully complied with their discovery obligations under the Compliance
Conference Order, dated April 4, 2016, see Exhibit A.
lof 4
The Order provided that “all outstanding written discovery” to be provided within 14
days of the Order. Accordingly, a large number of documents and recerds had been e-
mailed to Plaintiffs’ counsel by the undersigned. Inadvertently, the e-mail to Plaintiff's
counsel was never mailed and remained in the “outbox”. Exhibit B.
When it appeared that the e-mail could not be delivered, the undersigned attempted three
more times to deliver the records by e-mail. Each time the e-mail would not be delivered
to Plaintiffs counsel due to some glitch in the system. Exhibit B. Both counsel had
communicated by e-mail on numerous previous occasions, however for some reason, any
e-mails that had documents attached therein, just could not be delivered.
Consequently, on June 7, 2016, the undersigned mailed the discovery responses with the
accompanying cover, Exhibit C, to Plaintiff's counsel, thereby fully complying with
their obligations to produce outstanding discovery.
Despite his acknowledgement of the receipt of the discovery, Plaintiff's counsel has not
withdrawn his discovery motion, thereby engaging Defendants’ in unnecessary and
senseless motion practice, which drains the already limited resources, which, Defendants’
are forced to expend on this borderline frivolous litigation.
Defendants had produced everything in their possession, custody, and control that they
had agreed to produce in the April 4 Compliance Conference Order.
10. “A party may not be compelled to produce, or sanctioned for failing to produce,
information, which it does not possess.” Romeo v. City of New York, 261 A.D.2d 379, (2
Dept. 1999); Corriel v. Volkswagen of Am., 127 A.D.2d 729, 731, 512 N.Y.S.2d 126 (2
Dept.1987).
20f 4
11. Defendants had complied with all their discovery obligations imposed by the Court.
Plaintiffs unwillingness to withdraw it motion to compel discovery, after discovery had
been produced by Defendants, is vindictive and intended to harass and unduly prejudice
the Defendants, since it now has absolutely no basis in fact or law.
12. 22 N.Y.C.R.R. 130-1.1 gives the Court the authority to award costs and impose sanctions
for frivolous conduct. Conduct is considered frivolous if it is completely without merit
in law and cannot be supported by a reasonable argument for the extension, modification
or reversal of existing law. 22 NYCRR 130-1.1(c). “In deciding whether conduct is
frivolous the court must consider the circumstances under which the conduct took place,
including the time available for investigating the egal and factual basis of the conduct,
and whether or not the conduct was continued when its lack of legal and factual basis
became apparent, should have become apparent, or was brought to the attention of the
counsel in question.”
13 Defendants had fully responded and produced demanded discovery.
14. Under the circumstances and in light of this Court’s discovery orders issued to date,
Plaintiffs allegations of Defendants’ “failure” to produce discovery are frivolous because
they are “completely without merit in law”.
15 Plaintiff attempts to shoehorn laws and legal concepts to a set of facts where they have no
application. Plaintiff's attorney puts forth arguments in support of his motion to compel
responses to “preclude Defendants’ from offering any evidence” that ignore‘and omit the
fact that Defendants produced discovery in this case. Plaintiff's motion disregards the
plain meaning of the statutes and cases on which it is based, and offers self-serving
conclusory allegations where only recitations of the facts is required. In short, Plaintiff's
3 0f 4
motion to compel and for sanctions is frivolous. As such, Defendants demand attorney
fees and costs for opposing Plaintiff's frivolous motion.
16. For the foregoing reasons, Plaintiff's motion must be denied in all respects.
WHEREFORE, Defendants respectfully request the order:
a. denying Plaintiffs’ motion,
b. for costs and attorney’s fees in the amount of $1,350, and
¢. granting Defendants such other and further relief as this Court may deem just and proper
LAW OFFICE OF ROBE ONDAR
Dated: Brooklyn, New York
July 5, 2016 By TE
Robe! dar, Esq.
28Dooley Street, 3“ floor
Brooklyn, New York 11235
Tel. (347)462-3262
4 of 4
Preview
(FILED: NEW YORK COUNTY CLERK 07/05/2016 02:04 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 101 RECEIVED NYSCEF 07/05/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS mene ee een e eee n eee cece n neem n nnn nnn nn nnnnmnnennmnnnn ne] PETER STERN and EXPRESS TRADE CAPITAL, INC., Plaintiff(s), AFFIRMATION IN OPPOSITION Index No. '653476/2013 -against- 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. Defendant(s). ween Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1 I am the attorney for the Defendants herein. As such, I am fully familiar with the facts and circumstances surrounding this action. I submit this affirmation in opposition to Plaintiffs’ discovery motion made pursuant to CPLR 3124, 3126. As set forth below, Plaintiffs’ application should be denied in all respects. Despite Plaintiff's protestations to the contrary, Defendants had participatedin the discovery proceedings in good faith and they had produced all relevant non-privileged court-ordered outstanding discovery to date. Defendants had fully complied with their discovery obligations under the Compliance Conference Order, dated April 4, 2016, see Exhibit A. lof 4 The Order provided that “all outstanding written discovery” to be provided within 14 days of the Order. Accordingly, a large number of documents and recerds had been e- mailed to Plaintiffs’ counsel by the undersigned. Inadvertently, the e-mail to Plaintiff's counsel was never mailed and remained in the “outbox”. Exhibit B. When it appeared that the e-mail could not be delivered, the undersigned attempted three more times to deliver the records by e-mail. Each time the e-mail would not be delivered to Plaintiffs counsel due to some glitch in the system. Exhibit B. Both counsel had communicated by e-mail on numerous previous occasions, however for some reason, any e-mails that had documents attached therein, just could not be delivered. Consequently, on June 7, 2016, the undersigned mailed the discovery responses with the accompanying cover, Exhibit C, to Plaintiff's counsel, thereby fully complying with their obligations to produce outstanding discovery. Despite his acknowledgement of the receipt of the discovery, Plaintiff's counsel has not withdrawn his discovery motion, thereby engaging Defendants’ in unnecessary and senseless motion practice, which drains the already limited resources, which, Defendants’ are forced to expend on this borderline frivolous litigation. Defendants had produced everything in their possession, custody, and control that they had agreed to produce in the April 4 Compliance Conference Order. 10. “A party may not be compelled to produce, or sanctioned for failing to produce, information, which it does not possess.” Romeo v. City of New York, 261 A.D.2d 379, (2 Dept. 1999); Corriel v. Volkswagen of Am., 127 A.D.2d 729, 731, 512 N.Y.S.2d 126 (2 Dept.1987). 20f 4 11. Defendants had complied with all their discovery obligations imposed by the Court. Plaintiffs unwillingness to withdraw it motion to compel discovery, after discovery had been produced by Defendants, is vindictive and intended to harass and unduly prejudice the Defendants, since it now has absolutely no basis in fact or law. 12. 22 N.Y.C.R.R. 130-1.1 gives the Court the authority to award costs and impose sanctions for frivolous conduct. Conduct is considered frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification or reversal of existing law. 22 NYCRR 130-1.1(c). “In deciding whether conduct is frivolous the court must consider the circumstances under which the conduct took place, including the time available for investigating the egal and factual basis of the conduct, and whether or not the conduct was continued when its lack of legal and factual basis became apparent, should have become apparent, or was brought to the attention of the counsel in question.” 13 Defendants had fully responded and produced demanded discovery. 14. Under the circumstances and in light of this Court’s discovery orders issued to date, Plaintiffs allegations of Defendants’ “failure” to produce discovery are frivolous because they are “completely without merit in law”. 15 Plaintiff attempts to shoehorn laws and legal concepts to a set of facts where they have no application. Plaintiff's attorney puts forth arguments in support of his motion to compel responses to “preclude Defendants’ from offering any evidence” that ignore‘and omit the fact that Defendants produced discovery in this case. Plaintiff's motion disregards the plain meaning of the statutes and cases on which it is based, and offers self-serving conclusory allegations where only recitations of the facts is required. In short, Plaintiff's 3 0f 4 motion to compel and for sanctions is frivolous. As such, Defendants demand attorney fees and costs for opposing Plaintiff's frivolous motion. 16. For the foregoing reasons, Plaintiff's motion must be denied in all respects. WHEREFORE, Defendants respectfully request the order: a. denying Plaintiffs’ motion, b. for costs and attorney’s fees in the amount of $1,350, and ¢. granting Defendants such other and further relief as this Court may deem just and proper LAW OFFICE OF ROBE ONDAR Dated: Brooklyn, New York July 5, 2016 By TE Robe! dar, Esq. 28Dooley Street, 3“ floor Brooklyn, New York 11235 Tel. (347)462-3262 4 of 4