Preview
FILED: NEW YORK COUNTY CLERK 10/14/2016 04:32 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 10/14/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No. 653476/2013
-against-
ATTORNEY’S AFFIRMATION
IN SUPPORT
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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Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts in 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 OLEG ARDACHEV, AIR CARGO SERVICES
L.L.C., DELEX INC., and DELEX AIR CARGO, LLC (collectively, the “Defendants”).
2. As such, I am familiar with the facts and circumstances underlying this cause of action
based upon communications with the Defendants and review of the contents of the file
kept and maintained by the undersigned’s office.
3. I submit this affirmation in support of Defendants’ motion to quash Plaintiffs’ Subpoena
Duces Tecum (the ‘Subpoena’), Exhibit A, directed at the non-party Defendants’
corporate accountant Douglas Milo, CPA, and for Protective Order, pursuant to CPLR
3103(a), “denying, limiting, conditioning or regulating” discovery sought by Plaintiffs.
4. Plaintiffs have standing to contest the subpoenas duces tecum served on non-parties,
which seek their own personal records. "A motion to quash may be made on behalf of a
non-party witness by the witness or the witness' lawyer, or by one of the parties or a
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party's lawyer." In re MacLeman, 9 Misc. 3d (Sur. Ct., Westchester Cty., 2005) citing
Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1,
at p. 274-275 (1991).
5. "As to motions for a protective order, CPLR 3103(a) not only permits a non-party witness
to seek such an order in his/her own right, but also permits any party opposing the
disclosure to make the motion on behalf of the non-party." (In re MacLeman, supra,
citing Siegel, NY Prac § 353, at p. 577 [4th ed.]; see also, Velez v Hunts Point Multi-
Service Center, Inc., 29 AD3d 104 (1st Dept. 2007).
6. The basis for the instant motion to quash Plaintiff’s’ Subpoena is that Plaintiffs seek
information that is “palpably improper” and “utterly irrelevant to any proper inquiry” of
the issues of this matter, see Accent Collections, Inc. v Cappelli Enters., Inc., 84 A.D.3d
(2 Dept. 2011); Garcia v Jamber Rlty., Inc., 264 A.D.2d 809 (2 Dept. 1999).
7. "A disclosure request is palpably improper if it seeks information of a confidential and
private nature that does not appear to be relevant to he issues in the case". Saratoga
Harness Races, Inc. v Roemer, 274 A.D.2d 887 (3 Dept. 2000).
8. Specifically, Defendants object to Document Requests #4, 6, 9, 10, 11, 14, 15, on the
grounds that these requests demand sensitive commercial information and highly
confidential financial records, such as the Defendants’ tax returns, corporate formation
and organizational documents, operational and financial information, bank records, list of
assets, and money transfer records. The demanded information and records indisputably
constitute commercially sensitive secret information, which is privileged and cannot be
discovered absent a strong showing of necessity, which has not been demonstrated by the
Plaintiffs to any degree of certainty.
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9. At issue in this case is whether or not Defendants Oleg Ardachev and/or Delex Inc.
Exhibit B (Complaint) at ¶8-26, breached a purported “Sale Agreement” referred in the
Complaint as Exhibit A thereto. See Exhibit C. If found to be in breach, Plaintiffs claim
entitlement to a sum certain of $400,000, as set forth in the liquidated damages provision
contained in Exh. C. Therefore, Plaintiffs’ requests in the Subpoena are utterly irrelevant
to Plaintiffs’ claims of liability and damages, and thus palpably improper.
10. Demands directed at corporate and financial records of the Defendants DELEX INC., and
DELEX AIR CARGO, LLC, is palpably improper because Plaintiffs’ claims of
fraudulent conveyance to these Defendants must necessarily fail because these
Defendants are not judgment debtors of the Plaintiffs, and this is not a supplementary
proceedings under CPLR Article 51.
11. Moreover, since Plaintiff EXPRESS TRADE CAPITAL, INC. is in direct competition
with the corporate Defendants, as all are in the business of logistics and freight-
forwarding of cargo by air, land and sea. See Ex. B (Complaint) at ¶8, Exhibit D, the
burden of necessity of the requested information is elevated.
12. Defendants dispute the existence of the enforceable contract between the parties and deny
Plaintiffs’ allegations and claimed damages. Exhibit E, Answer.
13. It is well settled, that a subpoena duces tecum may not be used for the purpose of
discovery, or to ascertain the existence of evidence Murray v. Hudson, 43 A.D.3d 936 (2
Dept. 2007); Oak Beach Inn Corp. v. Town of Babylon, 239 A.D.2d 568 (2 Dept. 1997).
Instead, its purpose is to compel the production of specific documents that are relevant
and material to facts at issue in a pending judicial proceeding, see Matter of Terry D., 81
N.Y.2d 1042 (1993).
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14. Plaintiffs’ subpoena, which seeks formation and organizational documents, bank records,
and financial information of the corporate Defendants, which have absolutely no bearing
on the issues of this case, is a “fishing expedition” and it seeks information that is “utterly
irrelevant to any proper inquiry” of the issues of this matter, see Ayubo v. Eastman Kodak
Co., Inc., 158 A.D.2d 641 (2 Dep’t. 1990).
15. Defendants’ served a letter pursuant to CPLR 2304 requesting that Plaintiffs “withdraw
or modify” the Subpoena. Exhibit F. The Defendants declined to do so, thereby
precipitating the need for the instant motion to quash.
16. Plaintiffs clearly abuse the discovery process by demanding confidential and
commercially sensitive business information from their direct competitors, Defendants
DELEX INC. and DELEX AIR CARGO, LLC. As such, Defendants seeks a protective
order to prevent significant commercial disadvantage and undue prejudice resulting from
Plaintiffs’ unreasonably broad demands. The proprietary information that Plaintiffs seek
to obtain in discovery from Defendants DELEX INC. and DELEX AIR CARGO, LLC
does not “bear on the issues of liability and damages”. The requests are neither tailored to
the issues of this action, nor are reasonably calculated to obtain the information relevant
to Plaintiffs’ allegations in the complaint.
17. Accordingly, Defendants request that this Court issues a protective order pursuant to
CPLR 3103(a), “denying, limiting, conditioning or regulating” disclosure demanded by
the Plaintiffs, and quashes or “fixes conditions or modifies” Plaintiffs’ Subpoena as per
CPLR 2304(a).
DATED: Brooklyn, New York Respectfully submitted,
October 14, 2016
By: /s/ Robert Bondar
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Robert Bondar, Esq.
Attorney for Defendants
28 Dooley Street, 3rd floor
Brooklyn, New York 11235
Telephone (347) 462-3262
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Preview
FILED: NEW YORK COUNTY CLERK 10/14/2016 04:32 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 10/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. 653476/2013 -against- ATTORNEY’S AFFIRMATION IN SUPPORT 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 Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts in 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 OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., and DELEX AIR CARGO, LLC (collectively, the “Defendants”). 2. As such, I am familiar with the facts and circumstances underlying this cause of action based upon communications with the Defendants and review of the contents of the file kept and maintained by the undersigned’s office. 3. I submit this affirmation in support of Defendants’ motion to quash Plaintiffs’ Subpoena Duces Tecum (the ‘Subpoena’), Exhibit A, directed at the non-party Defendants’ corporate accountant Douglas Milo, CPA, and for Protective Order, pursuant to CPLR 3103(a), “denying, limiting, conditioning or regulating” discovery sought by Plaintiffs. 4. Plaintiffs have standing to contest the subpoenas duces tecum served on non-parties, which seek their own personal records. "A motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a 1 1 of 5 party's lawyer." In re MacLeman, 9 Misc. 3d (Sur. Ct., Westchester Cty., 2005) citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1, at p. 274-275 (1991). 5. "As to motions for a protective order, CPLR 3103(a) not only permits a non-party witness to seek such an order in his/her own right, but also permits any party opposing the disclosure to make the motion on behalf of the non-party." (In re MacLeman, supra, citing Siegel, NY Prac § 353, at p. 577 [4th ed.]; see also, Velez v Hunts Point Multi- Service Center, Inc., 29 AD3d 104 (1st Dept. 2007). 6. The basis for the instant motion to quash Plaintiff’s’ Subpoena is that Plaintiffs seek information that is “palpably improper” and “utterly irrelevant to any proper inquiry” of the issues of this matter, see Accent Collections, Inc. v Cappelli Enters., Inc., 84 A.D.3d (2 Dept. 2011); Garcia v Jamber Rlty., Inc., 264 A.D.2d 809 (2 Dept. 1999). 7. "A disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to he issues in the case". Saratoga Harness Races, Inc. v Roemer, 274 A.D.2d 887 (3 Dept. 2000). 8. Specifically, Defendants object to Document Requests #4, 6, 9, 10, 11, 14, 15, on the grounds that these requests demand sensitive commercial information and highly confidential financial records, such as the Defendants’ tax returns, corporate formation and organizational documents, operational and financial information, bank records, list of assets, and money transfer records. The demanded information and records indisputably constitute commercially sensitive secret information, which is privileged and cannot be discovered absent a strong showing of necessity, which has not been demonstrated by the Plaintiffs to any degree of certainty. 2 2 of 5 9. At issue in this case is whether or not Defendants Oleg Ardachev and/or Delex Inc. Exhibit B (Complaint) at ¶8-26, breached a purported “Sale Agreement” referred in the Complaint as Exhibit A thereto. See Exhibit C. If found to be in breach, Plaintiffs claim entitlement to a sum certain of $400,000, as set forth in the liquidated damages provision contained in Exh. C. Therefore, Plaintiffs’ requests in the Subpoena are utterly irrelevant to Plaintiffs’ claims of liability and damages, and thus palpably improper. 10. Demands directed at corporate and financial records of the Defendants DELEX INC., and DELEX AIR CARGO, LLC, is palpably improper because Plaintiffs’ claims of fraudulent conveyance to these Defendants must necessarily fail because these Defendants are not judgment debtors of the Plaintiffs, and this is not a supplementary proceedings under CPLR Article 51. 11. Moreover, since Plaintiff EXPRESS TRADE CAPITAL, INC. is in direct competition with the corporate Defendants, as all are in the business of logistics and freight- forwarding of cargo by air, land and sea. See Ex. B (Complaint) at ¶8, Exhibit D, the burden of necessity of the requested information is elevated. 12. Defendants dispute the existence of the enforceable contract between the parties and deny Plaintiffs’ allegations and claimed damages. Exhibit E, Answer. 13. It is well settled, that a subpoena duces tecum may not be used for the purpose of discovery, or to ascertain the existence of evidence Murray v. Hudson, 43 A.D.3d 936 (2 Dept. 2007); Oak Beach Inn Corp. v. Town of Babylon, 239 A.D.2d 568 (2 Dept. 1997). Instead, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding, see Matter of Terry D., 81 N.Y.2d 1042 (1993). 3 3 of 5 14. Plaintiffs’ subpoena, which seeks formation and organizational documents, bank records, and financial information of the corporate Defendants, which have absolutely no bearing on the issues of this case, is a “fishing expedition” and it seeks information that is “utterly irrelevant to any proper inquiry” of the issues of this matter, see Ayubo v. Eastman Kodak Co., Inc., 158 A.D.2d 641 (2 Dep’t. 1990). 15. Defendants’ served a letter pursuant to CPLR 2304 requesting that Plaintiffs “withdraw or modify” the Subpoena. Exhibit F. The Defendants declined to do so, thereby precipitating the need for the instant motion to quash. 16. Plaintiffs clearly abuse the discovery process by demanding confidential and commercially sensitive business information from their direct competitors, Defendants DELEX INC. and DELEX AIR CARGO, LLC. As such, Defendants seeks a protective order to prevent significant commercial disadvantage and undue prejudice resulting from Plaintiffs’ unreasonably broad demands. The proprietary information that Plaintiffs seek to obtain in discovery from Defendants DELEX INC. and DELEX AIR CARGO, LLC does not “bear on the issues of liability and damages”. The requests are neither tailored to the issues of this action, nor are reasonably calculated to obtain the information relevant to Plaintiffs’ allegations in the complaint. 17. Accordingly, Defendants request that this Court issues a protective order pursuant to CPLR 3103(a), “denying, limiting, conditioning or regulating” disclosure demanded by the Plaintiffs, and quashes or “fixes conditions or modifies” Plaintiffs’ Subpoena as per CPLR 2304(a). DATED: Brooklyn, New York Respectfully submitted, October 14, 2016 By: /s/ Robert Bondar 4 4 of 5 Robert Bondar, Esq. Attorney for Defendants 28 Dooley Street, 3rd floor Brooklyn, New York 11235 Telephone (347) 462-3262 5 5 of 5