Preview
FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----X
PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No.
-against-
AFFIRMATION
IN REPLY
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, an attorney duly admitted to practice in the Courts of this state,
the following under penalty of perjury:
1. I am the attorney for Defendants, and I am fully familiar with all the proc
action.
Plaintiffs' Defendants'
2. I submit this affirmation in
reply to opposition to the
motion, made pursuant to CPLR 3124 and 3126.
Plaintiffs'
3. apparent defense for providing boilerplate responses, and knee-j
Defendants'
to all of discovery demands, was that Plaintiffs simply have
responsive documents, 1 and 23that
of any other documents, which Defendants
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
facto merger. Incidentally, these claims are
completely inconsistent with
original claims of breach of contract.
5. Throughout this lengthy and exhaustive contract action, the parties
aggress
Plaintiffs'
breach of contract claims, whereby Plaintiffs
allegedly sold th
the Defendant AIR CARGO SERVICES L.L.C ('ACS') to Defendants
Ardachev, and for which 50% of ACS the Defendants did not pay Plaintiffs
6. In support of their claims, Plaintiffs relied on the affidavit of the former
and a one-page handwritten document, which Plaintiffs claim is the agree
Plaintiffs'
Defendants agreed to purchase 50% interest in ACS.
7. The document, which Plaintiffs
rely upon, is completely silent as to the
the alleged "agreement", the roles of the parties thereto, or any other
cust
in relation to any conditions or warranties that are normally present in a
sale of business between the sophisticated business owners, such as the
and where consideration allegedly
exceeds $400,000.
8. Now, when the time of the resolution of this action is coming to a close
approaching a deadline to file the note of issue, and proceed to trial on v
controvertible evidence, Plaintiffs suddenly and dramatically change cour
- new and causes of
their complaint by asserting mutually exclusive action.
2 of 23
9. Now Plaintiffs take a duplicitous that in the event it is found tha
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
or hide the facts that ACS as a company had minimal to no value, and th
Defendants'
valuable as "joint venture", which contained Plaintiffs and
"existing"
their "air freight clients". Exh. B, ¶10-11, 20. (amended compla
11. According to Plaintiff, Defendant Delex and Plaintiff Express transferred
client accounts to ACS, "which provided all client services going forward".
G, p.38-39.
Express'
12. Clearly, it was the book of air-freight clients, that held any value
Defendants, rather than one-half of ACS, which at the time of the alleged
miniscule assets valued at only $13,410. EXHIBIT H.
Express'
13. While the parties negotiated Delex purchasing air-freight clients,
discussed a potential price for these clients, that sale had never materialized.
undisputed that Plaintiffs decided to leave ACS to "pursue other business
Exh. B, $22 (amended complaint), and they were no longer involved wit
ACS, having "ceased coming to the business". Exh. G, p.129-133.
14. Plaintiff admitted that he also "stopped bringing clients to the business".
Express'
Accordingly, ACS no longer received the benefit of air freight
15. Because, Plaintiff no longer brought air freight clients to ACS, Delex Air
have taken them over and continue to sell to those clients.
3 of 23
16. Since Plaintiffs destroyed the inherent purpose of the joint n
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
18. In the amended complaint, Plaintiffs, undeterred by facts, claim that Def
same customers as ACS". As set forth above, that is simply untrue. Plainti
he did not bring any new customers to ACS in his deposition. See Exh.
Express'
19. At issue then is some prior clients, which Express would have
parties'
ACS pursuant to the joint venture agreement, and which remained
Plaintiffs'
after voluntary disassociation from ACS, which allegedly sub
"merged"
into Delex Air Cargo, LLC.
20. However, to the exception of one inartful and awkward statement of the
bookkeeper, which she later recanted, and an affidavit of a discredited
former employee Arthur Hish, Plaintiffs offer virtually no evidentiary s
asserted claims.
newly
21. These brand-new alternative claims, were not tested in discovery, and
entitled to such discovery to assist them in their defense of this action as
Article 31.
Plaintiffs'
22. Accordingly, Defendant requested discovery of documents ev
Plaintiff's alleged contributions to ACS: a list of employees and assets
claim to have transferred to ACS, and the list of all Plaintiff's customers
transferred to ACS and could have continued doing business with the De
4 of 23
Plaintiffs were no longer a part of ACS.
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Defendan
24. Plaintiffs attempt to justify improper boilerplate objections to the
discovery demands by claiming that all responsive documents have been
produced.
25. If that is the case, and Plaintiffs truly have no documents to establish the
allegations, then Plaintiffs cannot possibly prevail on their newly asserted
Plaintiffs'
matter of law. Still, should have provided similar answers in
the need to resolve the issue of improper responses
thereby alleviating
the instant motion.
Plaintiffs'
26. objections to producing their tax returns have no basis. It is tr
records are discoverable upon a strong showing of necessity, i.e., that th
relevant information which cannot be obtained from any alternative sourc
Consentino v. Schwartz, 155 A.D.2d 640 (2 Dept. 1989), Mayo, Lynch
123 A.D.2d 607(2 Dept. 1986), Briton v. Knott Hotels Corp., 111 A.D.2d
1985).
27. However, Defendants contend that both criteria, necessary for the discover
Express'
tax returns, had been met in this case.
28. First, the tax returns are relevant to establish traces of relationship between
Express and ACS, including
but not limited to any loans, payments, lease
5 of 23
deductions made Express in connection with ACS.
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
Defendants'
complaint could merit a dismissal. contentions of the corporate
ACS are also supported inter alia by the complaint, see Exh. B 19, 16
complaint), and the affidavit of Arthur Hish, see Def. Exh. J.
30. In addition, it would be material to examine what effect the transfer of
Express'
freight customers to ACS had on the bottom line, and going fo
effect the alleged transfer of ACS (lease of the premises, payroll and em
Express'
freight customers) from Plaintiffs to DefenAnts had on the gro
profitability. This information is directly
related to the issues of damages
31. The showing of the second prong is clearly
satisfied by the Plaintiff's o
produce documents or records to establish to any degree of
any certainty
indeed "toor over the business of ACS", or "sold to the same customers
Exh. B $68-70.
32. Plaintiffs state in their opposition papers that they have no evidence to
newly asserted claims. Accordingly, Defendants have no viable alternative
obtain this information, other than from Plaintiff's tax returns.
33. Finally, in regards to the Defendant's demand for bill of particulars, it
the Plaintiffs in the spirit and pursuant to the provisions of CPLR 3042
and provide particulars of the items alleged in the recently ameñd
amplify
6 of 23
34. In Plaintiffs offered meaningless allusions to the deposition
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
Plaintiffs'
36. failure to produce discovery is willful and contumacious, and
or justification.
37. Accordingly, Defendants seek costs and disbursements of this motion in
statutory
relief provided by CPLR 3126.
38. CPLR 3126 provides as follows:
Penalties for refusal to comply
If any party, or a person who at the time a deposition is taken or an
inspection is made is an officer, director, member, erap|cyee or agent
otherwise under a party's control, refuses to obey an order for disclosur
fails to disclose information which the court finds ought to have
pursuant to this article, the court may make such orders with regard
refusal as are just, among them:
1. an order that the issues to which the information is relevant sh
resolved for purposes of the action in accOrdance with the claims
obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing
claims or defenses, from producing in evidence designated things
testimony, or from introducing any evidence of the physical, mental or
sought to be deterrained, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further p
the order is obeyed, or disraissing the action or any part thereof,
judgment by default against the disobedient party.
39. Since Plaintiffs willfully
refuse to disclose relevant and discoverable info
Defendants have no other alternative but to seek the relief available unde
including striking
the amended coroplaint and dismissing this action.
7 of 23
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granting costs, disbursements and attorney fees in connection with the
(d)
motion; and
(e) granting
such other and further relief as this Court may deem just and p
DATED: Brooklyn, New York LAW OFFICE OF ROBERT
September 26, 2018
By:
Robért Bondar, Esq.
Attorney for Defendant
28 Dooley Street,
Brooklyn, New Yor
Telephone (347) 46
8 of 23
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'G'
Exhibit
9 of 23
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1 P. STERN
2 Q. Tax is that --
form,
3 A. Tax returns.
4 Q. -- is that the document
only
5 which, to the best of your knowledge,
6 who the owner of 50 percent of ACS w
7 A. That's the only one I can
8 of.
9 Q. Where would Mr. Estrakh ge
10 information that it was Express and
11 who owned 50 percent ownership in AC
12 MR. SEIDMAN: Objection to
13 A. Just from my story.
14 Q. So, at some point you must
15 stated to him that it was who Express
16 ACS; right?
17 MR. SEIDMAN: Objection to
18 A. I might have.
19 10 Q.
of 23
How about Number 18, "The
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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018
1 P. STERN
venture."
2 business Is that a true
3 statement?
4 A. I was selling the air freight
division Express'
5 of interest in ACS
6 ACS.
7 Q. Can you repeat that again,
-- me
8 A. I was let just read
9 again one second.
10 Q. Sure.
Express'
11 A. Yes, that's true,
12 Peter's interest in ACS.
Express'
13 Q. So, either or Peter
14 A. Yes.
15 Q. You weren't sure at the tim
16 A. I'm not sure today, now.
17 Q. Let's go back to 20. Turn
18 page. Number 20 says, "All Express
19 Delex Inc. air freight client accounts
11 of 23
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1 P. STERN
2 Q. Are you saying that Express
3 transferred all of it's freight clients
4 A. All air freight clients.
5 Q. All air freights?
6 A. Yes.
7 Q. Did it have any other clients
8 who used --
9 A. Ocean, land.
10 Q. Ocean. Land?
11 A. Ocean, land, financial clien
12 Q. Those weren't transferred
13 A. No.
14 Q. Why only air freight was
15 transferred?
16 A. Because that's the agreement
17 made. Delex was in the business of
18 air freight business, and we joined
19 just to sell air freight, air freight
12 of 23
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1 P. STERN
2 A. Because that's what was
3 contributed to the partnership.
4 Q. And then Delex also contributed
5 all of its air freight customers to
6 A. Yes.
7 Q. All of them?
8 A. As far as I know.
9 Q. Well, you entered into an
10 agreement. What was the agreement?
11 MR. SEIDMAN: Objection to
12 A. The agreement was Delex
13 contributes all its business, which
14 of air freight only.
15 Q. Is that written somewhere
16 agreement?
17 A. No, we don't have agreement.
18 Q. Did you say, "We don't have
19 agreement"?
13 of 23
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1 P. STERN
2 Q. So, it wasn't only confined
3 Aeroflot clients, was it?
4 A. No.
5 Q. Did Express Service have
6 freight customers who shipped by any
7 companies other than Aeroflot?
8 A. They might have because w
9 represented a number of clients. M
10 them at that time shipped by Aeroflot,
11 however, there were a few that were
12 by other carriers. We could not force
13 to use only one carrier.
14 Q. So, Express did have clients
15 shipped by other airlines; is that
16 A. Very few. Mostly Aeroflot.
17 Q. Do you know if Delex had
18 that shipped by companies other than
19 Aeroflot?
14 of 23
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1 P. STERN
2 Q. So, Delex would have to c
3 clients other than the ones that ship
4 through Aeroflot?
5 A. Delex should have contributed
6 the air freight clients regardless
7 airlines.
8 Q. Now, you also said that E
9 Service or you, personally, had a
10 relationship with Aeroflot Airlines?
11 A. Yes, I did.
12 Q. And it was, I think you sa
13 GSA?
14 A. I was their GSA.
15 Q. When did you become Aeroflot's
16 GSA?
17 A. I can give you only approximate
18 I don't remember exactly.
19 Q. That's fine.
15 of 23
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1 P. STERN
2 It's on the later half of the
3 counsel.
4 Q. So, when it says, "late
- 5
2009" --
January
6 MR. SEIDMAN: I guess we're
7 done.
-- does
8 Q. that mean January
9 A. Yes.
10 -- or time
Q. any thereafter?
11 A. That's correct.
12 Q. So, is it Januitry 16th or
13 after January 16th?
14 A. January 16 and after.
15 Q. And then Number 13 says tha
16 accordance with the agreemant, since
17 January 12, 2009, you have not received
Preview
FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. -against- AFFIRMATION IN REPLY 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, an attorney duly admitted to practice in the Courts of this state, the following under penalty of perjury: 1. I am the attorney for Defendants, and I am fully familiar with all the proc action. Plaintiffs' Defendants' 2. I submit this affirmation in reply to opposition to the motion, made pursuant to CPLR 3124 and 3126. Plaintiffs' 3. apparent defense for providing boilerplate responses, and knee-j Defendants' to all of discovery demands, was that Plaintiffs simply have responsive documents, 1 and 23that of any other documents, which Defendants FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 facto merger. Incidentally, these claims are completely inconsistent with original claims of breach of contract. 5. Throughout this lengthy and exhaustive contract action, the parties aggress Plaintiffs' breach of contract claims, whereby Plaintiffs allegedly sold th the Defendant AIR CARGO SERVICES L.L.C ('ACS') to Defendants Ardachev, and for which 50% of ACS the Defendants did not pay Plaintiffs 6. In support of their claims, Plaintiffs relied on the affidavit of the former and a one-page handwritten document, which Plaintiffs claim is the agree Plaintiffs' Defendants agreed to purchase 50% interest in ACS. 7. The document, which Plaintiffs rely upon, is completely silent as to the the alleged "agreement", the roles of the parties thereto, or any other cust in relation to any conditions or warranties that are normally present in a sale of business between the sophisticated business owners, such as the and where consideration allegedly exceeds $400,000. 8. Now, when the time of the resolution of this action is coming to a close approaching a deadline to file the note of issue, and proceed to trial on v controvertible evidence, Plaintiffs suddenly and dramatically change cour - new and causes of their complaint by asserting mutually exclusive action. 2 of 23 9. Now Plaintiffs take a duplicitous that in the event it is found tha FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 or hide the facts that ACS as a company had minimal to no value, and th Defendants' valuable as "joint venture", which contained Plaintiffs and "existing" their "air freight clients". Exh. B, ¶10-11, 20. (amended compla 11. According to Plaintiff, Defendant Delex and Plaintiff Express transferred client accounts to ACS, "which provided all client services going forward". G, p.38-39. Express' 12. Clearly, it was the book of air-freight clients, that held any value Defendants, rather than one-half of ACS, which at the time of the alleged miniscule assets valued at only $13,410. EXHIBIT H. Express' 13. While the parties negotiated Delex purchasing air-freight clients, discussed a potential price for these clients, that sale had never materialized. undisputed that Plaintiffs decided to leave ACS to "pursue other business Exh. B, $22 (amended complaint), and they were no longer involved wit ACS, having "ceased coming to the business". Exh. G, p.129-133. 14. Plaintiff admitted that he also "stopped bringing clients to the business". Express' Accordingly, ACS no longer received the benefit of air freight 15. Because, Plaintiff no longer brought air freight clients to ACS, Delex Air have taken them over and continue to sell to those clients. 3 of 23 16. Since Plaintiffs destroyed the inherent purpose of the joint n FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 18. In the amended complaint, Plaintiffs, undeterred by facts, claim that Def same customers as ACS". As set forth above, that is simply untrue. Plainti he did not bring any new customers to ACS in his deposition. See Exh. Express' 19. At issue then is some prior clients, which Express would have parties' ACS pursuant to the joint venture agreement, and which remained Plaintiffs' after voluntary disassociation from ACS, which allegedly sub "merged" into Delex Air Cargo, LLC. 20. However, to the exception of one inartful and awkward statement of the bookkeeper, which she later recanted, and an affidavit of a discredited former employee Arthur Hish, Plaintiffs offer virtually no evidentiary s asserted claims. newly 21. These brand-new alternative claims, were not tested in discovery, and entitled to such discovery to assist them in their defense of this action as Article 31. Plaintiffs' 22. Accordingly, Defendant requested discovery of documents ev Plaintiff's alleged contributions to ACS: a list of employees and assets claim to have transferred to ACS, and the list of all Plaintiff's customers transferred to ACS and could have continued doing business with the De 4 of 23 Plaintiffs were no longer a part of ACS. FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 Defendan 24. Plaintiffs attempt to justify improper boilerplate objections to the discovery demands by claiming that all responsive documents have been produced. 25. If that is the case, and Plaintiffs truly have no documents to establish the allegations, then Plaintiffs cannot possibly prevail on their newly asserted Plaintiffs' matter of law. Still, should have provided similar answers in the need to resolve the issue of improper responses thereby alleviating the instant motion. Plaintiffs' 26. objections to producing their tax returns have no basis. It is tr records are discoverable upon a strong showing of necessity, i.e., that th relevant information which cannot be obtained from any alternative sourc Consentino v. Schwartz, 155 A.D.2d 640 (2 Dept. 1989), Mayo, Lynch 123 A.D.2d 607(2 Dept. 1986), Briton v. Knott Hotels Corp., 111 A.D.2d 1985). 27. However, Defendants contend that both criteria, necessary for the discover Express' tax returns, had been met in this case. 28. First, the tax returns are relevant to establish traces of relationship between Express and ACS, including but not limited to any loans, payments, lease 5 of 23 deductions made Express in connection with ACS. FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 Defendants' complaint could merit a dismissal. contentions of the corporate ACS are also supported inter alia by the complaint, see Exh. B 19, 16 complaint), and the affidavit of Arthur Hish, see Def. Exh. J. 30. In addition, it would be material to examine what effect the transfer of Express' freight customers to ACS had on the bottom line, and going fo effect the alleged transfer of ACS (lease of the premises, payroll and em Express' freight customers) from Plaintiffs to DefenAnts had on the gro profitability. This information is directly related to the issues of damages 31. The showing of the second prong is clearly satisfied by the Plaintiff's o produce documents or records to establish to any degree of any certainty indeed "toor over the business of ACS", or "sold to the same customers Exh. B $68-70. 32. Plaintiffs state in their opposition papers that they have no evidence to newly asserted claims. Accordingly, Defendants have no viable alternative obtain this information, other than from Plaintiff's tax returns. 33. Finally, in regards to the Defendant's demand for bill of particulars, it the Plaintiffs in the spirit and pursuant to the provisions of CPLR 3042 and provide particulars of the items alleged in the recently ameñd amplify 6 of 23 34. In Plaintiffs offered meaningless allusions to the deposition FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 Plaintiffs' 36. failure to produce discovery is willful and contumacious, and or justification. 37. Accordingly, Defendants seek costs and disbursements of this motion in statutory relief provided by CPLR 3126. 38. CPLR 3126 provides as follows: Penalties for refusal to comply If any party, or a person who at the time a deposition is taken or an inspection is made is an officer, director, member, erap|cyee or agent otherwise under a party's control, refuses to obey an order for disclosur fails to disclose information which the court finds ought to have pursuant to this article, the court may make such orders with regard refusal as are just, among them: 1. an order that the issues to which the information is relevant sh resolved for purposes of the action in accOrdance with the claims obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing claims or defenses, from producing in evidence designated things testimony, or from introducing any evidence of the physical, mental or sought to be deterrained, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further p the order is obeyed, or disraissing the action or any part thereof, judgment by default against the disobedient party. 39. Since Plaintiffs willfully refuse to disclose relevant and discoverable info Defendants have no other alternative but to seek the relief available unde including striking the amended coroplaint and dismissing this action. 7 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 granting costs, disbursements and attorney fees in connection with the (d) motion; and (e) granting such other and further relief as this Court may deem just and p DATED: Brooklyn, New York LAW OFFICE OF ROBERT September 26, 2018 By: Robért Bondar, Esq. Attorney for Defendant 28 Dooley Street, Brooklyn, New Yor Telephone (347) 46 8 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 'G' Exhibit 9 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 Q. Tax is that -- form, 3 A. Tax returns. 4 Q. -- is that the document only 5 which, to the best of your knowledge, 6 who the owner of 50 percent of ACS w 7 A. That's the only one I can 8 of. 9 Q. Where would Mr. Estrakh ge 10 information that it was Express and 11 who owned 50 percent ownership in AC 12 MR. SEIDMAN: Objection to 13 A. Just from my story. 14 Q. So, at some point you must 15 stated to him that it was who Express 16 ACS; right? 17 MR. SEIDMAN: Objection to 18 A. I might have. 19 10 Q. of 23 How about Number 18, "The FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN venture." 2 business Is that a true 3 statement? 4 A. I was selling the air freight division Express' 5 of interest in ACS 6 ACS. 7 Q. Can you repeat that again, -- me 8 A. I was let just read 9 again one second. 10 Q. Sure. Express' 11 A. Yes, that's true, 12 Peter's interest in ACS. Express' 13 Q. So, either or Peter 14 A. Yes. 15 Q. You weren't sure at the tim 16 A. I'm not sure today, now. 17 Q. Let's go back to 20. Turn 18 page. Number 20 says, "All Express 19 Delex Inc. air freight client accounts 11 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 Q. Are you saying that Express 3 transferred all of it's freight clients 4 A. All air freight clients. 5 Q. All air freights? 6 A. Yes. 7 Q. Did it have any other clients 8 who used -- 9 A. Ocean, land. 10 Q. Ocean. Land? 11 A. Ocean, land, financial clien 12 Q. Those weren't transferred 13 A. No. 14 Q. Why only air freight was 15 transferred? 16 A. Because that's the agreement 17 made. Delex was in the business of 18 air freight business, and we joined 19 just to sell air freight, air freight 12 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 A. Because that's what was 3 contributed to the partnership. 4 Q. And then Delex also contributed 5 all of its air freight customers to 6 A. Yes. 7 Q. All of them? 8 A. As far as I know. 9 Q. Well, you entered into an 10 agreement. What was the agreement? 11 MR. SEIDMAN: Objection to 12 A. The agreement was Delex 13 contributes all its business, which 14 of air freight only. 15 Q. Is that written somewhere 16 agreement? 17 A. No, we don't have agreement. 18 Q. Did you say, "We don't have 19 agreement"? 13 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 Q. So, it wasn't only confined 3 Aeroflot clients, was it? 4 A. No. 5 Q. Did Express Service have 6 freight customers who shipped by any 7 companies other than Aeroflot? 8 A. They might have because w 9 represented a number of clients. M 10 them at that time shipped by Aeroflot, 11 however, there were a few that were 12 by other carriers. We could not force 13 to use only one carrier. 14 Q. So, Express did have clients 15 shipped by other airlines; is that 16 A. Very few. Mostly Aeroflot. 17 Q. Do you know if Delex had 18 that shipped by companies other than 19 Aeroflot? 14 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 Q. So, Delex would have to c 3 clients other than the ones that ship 4 through Aeroflot? 5 A. Delex should have contributed 6 the air freight clients regardless 7 airlines. 8 Q. Now, you also said that E 9 Service or you, personally, had a 10 relationship with Aeroflot Airlines? 11 A. Yes, I did. 12 Q. And it was, I think you sa 13 GSA? 14 A. I was their GSA. 15 Q. When did you become Aeroflot's 16 GSA? 17 A. I can give you only approximate 18 I don't remember exactly. 19 Q. That's fine. 15 of 23 FILED: NEW YORK COUNTY CLERK 09/27/2018 05:48 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/27/2018 1 P. STERN 2 It's on the later half of the 3 counsel. 4 Q. So, when it says, "late - 5 2009" -- January 6 MR. SEIDMAN: I guess we're 7 done. -- does 8 Q. that mean January 9 A. Yes. 10 -- or time Q. any thereafter? 11 A. That's correct. 12 Q. So, is it Januitry 16th or 13 after January 16th? 14 A. January 16 and after. 15 Q. And then Number 13 says tha 16 accordance with the agreemant, since 17 January 12, 2009, you have not received