Preview
FILED: NEW YORK COUNTY CLERK 11/14/2016 03:05 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/14/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------X
PETER STERN and EXPRESS TRADE CAPITAL,
INC., Index No. 653476/13
(J. Hagler)
Plaintiffs,
-against- AFFIDAVIT OF
PETER STERN IN
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., OPPOSITION TO MOTION
DELEX INC., DELEX AIR CARGO, LLC, a Delaware TO QUASH SUBPOENA
limited liability company, and DELEX AIR CARGO,
LLC, a Washington limited liability company,
Defendants.
-----------------------------------------X
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK)
PETER STERN, being duly sworn, deposes and says:
1. I am a Plaintiff in this action and the President and owner of co-Plaintiff Express
Trade Capital Inc. ("Express Trade") I am personally familiar with the facts and circumstances set
forth below and submit this affidavit in opposition to Defendants' motion to quash the subpoena
(the "Subpoena") served on Liberta & Milo, the Defendants' outside accountant.
2. In 2003, I entered into a 50/50 joint venture (the "Joint Venture") with Defendant
Ardachev to operate a freight forwarding business at JFK Airport.
3. In 2004, Ardachev and I formed Air Cargo Services LLC ("ACS") for the continued
operation of our Joint Venture.
4. In January, 2009, I entered into an agreement (the "Agreement") with Ardachev
whereby Ardachev purchased my 50% ownership interest in ACS.
1 of 4
5. Pursuant to our Agreement, which is evidenced by, among other things, a writing
signed by Ardachev, I sold my 50% ownership interest to Ardachev for $400,000, if such amount
was paid by July, 2012, or the price was agreed to be $500,000 if the purchase price was paid after
July, 2014. A true and correct copy ofthe signed writing evidencing our Agreement is mmexed as
Exhibit A.
6. Attached as Exhibit B is an affidavit from Douglas Milo, the outside accountant for
the Defendants, which explains that Mr. Milo also understood that in 2009 there was an Agreement
between me and Ardachev for the purchase and sale of my 50% ownership interest in ACS.
7. Since January 2009, I have ceased to be involved with the business of ACS.
8. Since January 2009, I have received no money and no economic benefit from ACS.
9. Since January, 2009, I have received no financial information about ACS.
10. Despite my sale of my 50% ownership to Ardachev, and despite demand for the
amount due under the Agreement, Ardachev has paid me nothing.
11. Rather than pay what is owed, Ardachev has taken the position in this litigation that
no such purchase/sale Agreement exists and that, therefore, I remain a 50% owner of ACS at all
times from 2009 through today.
12. The problem with Ardachev's theory about my still being an owner of ACS is that I
have received no money and no information from ACS since January, 2009.
13. Indeed, rather than pay me what I am owed for the past more than six years of my
alleged 50% ownership of ACS, Ardachev has committed fraud.
14. Attached as Exhibit Cis a sworn statement from Arthur Hish, the former manager of
ACS and the De lex Defendants, which explains the fraud and the reason why the documents sought
by the Subpoena are relevant.
2
2 of 4
15. Mr. Hish's testimony is that "[a]round 2009, Mr. Ardachev instructed myself, and
ACS and Delex employees that all Delex and ACS accounts were to be converted and transferred to
Delex 2 [Defendant Delex Air Cargo LLC] when possible." (Exhibit C, page 2) (Emphasis added).
16. Based on the Arthur Hish Affidavit attesting to fraud, these documents sought by the
Subpoena- documents relating to the financial condition of the Defendants and financial transfers
between and among them -- are relevant to prove damages caused by the fraud.
17. Defendants' counsel is wrong when he says that Express Trade and Del ex are
business competitors. They are not.
18. Express Trade is primarily in the financial services business. Freight forwarding and
logistics services are only a small and ancillary part of its business.
19. In any event, and more importantly, the Plaintiffs are willing to treat the financial
documents produced pursuant to the Subpoena as Confidential and for purposes of this litigation
only and to enter into a Confidentiality Stipulation and Order issued by the Court.
20. In sum, Ardachev should not be able to have it both ways. Under either the
Plaintiffs' or Defendants' theory of the case, Ardachev owes me a lot of money. Ardachev should
not be allowed to evade his obligations to pay me $500,000 owed pursuant to the Agreement, while
also evading my right to discovery concerning the financial transactions by which he dissipated the
assets of ACS, a company that is allegedly owned 50% by me.
3
3 of 4
21. For the foregoing reasons, I respectfully request that the Motion to quash the
Subpoena be denied.
Sworn to before me this
/9_ day ofNovember, 2016
~#-*~~
NANCY SULLIVAN
Notary Public, State of New York
No. Q1SU4742078
Qualified in Suffolk County/ 'f
Commission Expires March 30, 20_
4
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 11/14/2016 03:05 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC., Index No. 653476/13 (J. Hagler) Plaintiffs, -against- AFFIDAVIT OF PETER STERN IN OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., OPPOSITION TO MOTION DELEX INC., DELEX AIR CARGO, LLC, a Delaware TO QUASH SUBPOENA limited liability company, and DELEX AIR CARGO, LLC, a Washington limited liability company, Defendants. -----------------------------------------X STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK) PETER STERN, being duly sworn, deposes and says: 1. I am a Plaintiff in this action and the President and owner of co-Plaintiff Express Trade Capital Inc. ("Express Trade") I am personally familiar with the facts and circumstances set forth below and submit this affidavit in opposition to Defendants' motion to quash the subpoena (the "Subpoena") served on Liberta & Milo, the Defendants' outside accountant. 2. In 2003, I entered into a 50/50 joint venture (the "Joint Venture") with Defendant Ardachev to operate a freight forwarding business at JFK Airport. 3. In 2004, Ardachev and I formed Air Cargo Services LLC ("ACS") for the continued operation of our Joint Venture. 4. In January, 2009, I entered into an agreement (the "Agreement") with Ardachev whereby Ardachev purchased my 50% ownership interest in ACS. 1 of 4 5. Pursuant to our Agreement, which is evidenced by, among other things, a writing signed by Ardachev, I sold my 50% ownership interest to Ardachev for $400,000, if such amount was paid by July, 2012, or the price was agreed to be $500,000 if the purchase price was paid after July, 2014. A true and correct copy ofthe signed writing evidencing our Agreement is mmexed as Exhibit A. 6. Attached as Exhibit B is an affidavit from Douglas Milo, the outside accountant for the Defendants, which explains that Mr. Milo also understood that in 2009 there was an Agreement between me and Ardachev for the purchase and sale of my 50% ownership interest in ACS. 7. Since January 2009, I have ceased to be involved with the business of ACS. 8. Since January 2009, I have received no money and no economic benefit from ACS. 9. Since January, 2009, I have received no financial information about ACS. 10. Despite my sale of my 50% ownership to Ardachev, and despite demand for the amount due under the Agreement, Ardachev has paid me nothing. 11. Rather than pay what is owed, Ardachev has taken the position in this litigation that no such purchase/sale Agreement exists and that, therefore, I remain a 50% owner of ACS at all times from 2009 through today. 12. The problem with Ardachev's theory about my still being an owner of ACS is that I have received no money and no information from ACS since January, 2009. 13. Indeed, rather than pay me what I am owed for the past more than six years of my alleged 50% ownership of ACS, Ardachev has committed fraud. 14. Attached as Exhibit Cis a sworn statement from Arthur Hish, the former manager of ACS and the De lex Defendants, which explains the fraud and the reason why the documents sought by the Subpoena are relevant. 2 2 of 4 15. Mr. Hish's testimony is that "[a]round 2009, Mr. Ardachev instructed myself, and ACS and Delex employees that all Delex and ACS accounts were to be converted and transferred to Delex 2 [Defendant Delex Air Cargo LLC] when possible." (Exhibit C, page 2) (Emphasis added). 16. Based on the Arthur Hish Affidavit attesting to fraud, these documents sought by the Subpoena- documents relating to the financial condition of the Defendants and financial transfers between and among them -- are relevant to prove damages caused by the fraud. 17. Defendants' counsel is wrong when he says that Express Trade and Del ex are business competitors. They are not. 18. Express Trade is primarily in the financial services business. Freight forwarding and logistics services are only a small and ancillary part of its business. 19. In any event, and more importantly, the Plaintiffs are willing to treat the financial documents produced pursuant to the Subpoena as Confidential and for purposes of this litigation only and to enter into a Confidentiality Stipulation and Order issued by the Court. 20. In sum, Ardachev should not be able to have it both ways. Under either the Plaintiffs' or Defendants' theory of the case, Ardachev owes me a lot of money. Ardachev should not be allowed to evade his obligations to pay me $500,000 owed pursuant to the Agreement, while also evading my right to discovery concerning the financial transactions by which he dissipated the assets of ACS, a company that is allegedly owned 50% by me. 3 3 of 4 21. For the foregoing reasons, I respectfully request that the Motion to quash the Subpoena be denied. Sworn to before me this /9_ day ofNovember, 2016 ~#-*~~ NANCY SULLIVAN Notary Public, State of New York No. Q1SU4742078 Qualified in Suffolk County/ 'f Commission Expires March 30, 20_ 4 4 of 4