Preview
FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-- --- --- -----------X
PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No.
-against-
NOTICE
MOTION
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
PLEASE TAKE NOTICE that, upon the annexed Affirmation of Robert B
August 25, 2018, the exhibits attached thereto, and all the prior pleadings and
herein, Defendants, by their undersigned counsel, will move this Court, on Se
at 9:30 a.m., or as soon thereafter as counsel may be heard, at the Submissian
Supreme Court of New York, County of New York, 60 Centre Street,
York, for an Order of this Court:
Plaintiffs'
a. Pursuant to CPLR 3126, striking Complaint for willful failure
information; or
b. Pursuant to CPLR 3124, compelling disclosure requested by Defendants.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answeri
any, are to be served upon the undersigned at least seven (7) days prior to the re
ATTORNEY CERTIFICATION
An affirmation that a good faith effort has been made to resolve the issues
motion is annexed hereto. 1 of 55
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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
GOOD FAI
PURSUANT
UNIFORM
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability colspany, and DELEX AIR CARGO, LLC.
a Washington limited liability company.
Defendants.
--- ----------X
Robert Bondar, an attorney duly admitted to practice before the Courts of the S
hereby affirms the truth of the
following statements, upon information and belief,
penalty of perjury:
Defendants'
1. As set forth in my principal affirmation in support of motion to
Plaintiffs have refused to comply with their discovery obligations in good f
the information demanded by the Defendants in discovery.
2. I have attempted in good faith to obtain Plaintiff's compliance, and in a good
resolve this discovery dispute as prescribed by 22 NYCRR 202.7(a).
Plaintiffs'
3. By letter dated August 22, 2018, I wrote to counsel and advised
2 of 55
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Plaintiffs provided complete responses by August 25, 2018. A copy of this
to this affirmation.
5. As of the date of making of this motion, Defendants received no response t
attempt at resolving the discovery dispute, precipitating the
necessity of mak
motion.
Defendants'
6. Plaintiffs are willfully frustrating right to discovery pursuant to
Civil Practice Law and Rules.
Plaintiffs'
7. Despite my efforts to notify and consult with the
attorney on this
does not appear to be resolvable without the Court's intervention.
Defendants'
WHEREFORE, it is respectfully requested that this Court grants
entirety.
DATED: Brooklyn, New York Respectfully submitted,
August 26, 2018
By
Ro)ert'Éóiidar3sq
3
28 Dooley Street,
Brooklyn, New York
Telephone (347) 46
3 of 55
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_____________________________ ----- X
PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No. 6
-against-
AFFIRMATION
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, an attorney duly admitted to practice before the Courts of the S
hereby affirms the truth of the following statements, upon information and belief,
penalty of perjury:
1. I am a principal attorney at the Law Office of Robert Bondar, the attorney
Defendants herein. As such I am fully familiar with all the proceedings in this m
2. This affirmation is submitted in support of a motion for an Order pursuant
and 3126:
Plaintiffs'
(a) Striking
Complaint for willful failure to produce d
demanded by the Defendants;
Defendants'
(b) Compelling Plaintiffs to comply with the Demand
4 of 55
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4. There, Plaintiffs allege that, in addition to their original claims of breach
under the doctrine of successor liability (namely, the de facto merger and mere
causes of action) Defendant AIR CARGO SERVICES L.L.C merged into Defenda
AIR CARGO or that Defendant DELEX AIR CARGO is a mere continuation a
Defendant AIR CARGO SERVICES L.L.C. Accordingly, Plaintiffs, by way of
of 50% of AIR CARGO SERVICES claim that they should be entitled to 50%
DELEX AIR CARGO and share of its profits. EXHIBIT B.
5. On July 16, 2018, Defendants timely submitted their amended answer d
new claims of ownership and entitlement to
accounting and share of profits of
CARGO. EXHIBIT C.
6. On July 18, 2018, Defendants served Plaintiffs with a Demand for Producti
Documents and the Demand for Bill of Particulars. EXHIBIT D.
Plaintiffs'
7. Within those demands, Defendant requested discovery of docum
evidencing alleged Plaintiff's claimed contributions to AIR CARGO SERVICES,
employees and assets, including any customers, which it alleged to have transferred
Defendants, copies of Plaintiff's tax returns for the relevant time period, and writt
coñmmnications in connection with the alleged transfers. Defendants contend th
documents constitute material and useful information reasonably calculated to l
5 of 55
discovery of admissible evidence, and therefore they are discoverable.
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9. Defendants also requested a Bill of Particulars to amplify the allegations
Defendants'
filed pleadings. demand contained only five items, which Plaintiff
particularize.
Defendants'
10. On August 14, 2018, Plaintiffs served its responses to the
Defendants'
counsel received on August 17, 2018. There, Plaintiffs
improperly
Defeñdañts'
the demands, through blanket and generic responses, on the ground
demands were "not relevant", "untimely", or "vague and overbroad". EXHIBIT
11. Plaintiffs are incorrect. The discovery requests propounded by the Defenda
Plaintiffs'
imperative to ascertain the extent of liability claims and their measure
necessary"
such, Defendants timely and properly demanded "material and informa
action"
Plaintiffs for the "prosecution or defense of an within the meaning of C
Plaintiffs'
12. refusal to produce demanded discovery is blatantly improper
prejudicial to Defendants.
Plaintiffs'
13. Defendants deny that they ever purchased interest in AIR CA
SERVICES. Defendants deny that AIR CARGO SERVICES merged with DELE
or that DELEX AIR CARGO is the successor to AIR CARGO SERVICES.
Plaintiffs'
14. Plaintiffs had not produced a shred of evidence, other than sel
contradictory statements of its ever-changing legal position, to proceed to trial
6 of 55
15. To avoid of this and in a good faith attempt to resolve th
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NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
Plaintiffs'
16. In the letter, I described in painstaking detail the deficiencies of
cited applicable statutes and caselaw to show that Plaintiffs were entitled to the
discovery.
17. Defendants are seeking information regarding potential witnesses to the
Plaintiffs'
defenses of this action, as well as proof of contribution of assets to A
Plaintiffs claim were subsequently wrongfully transferred by Defendants to Dele
LLC. Defendants require these documents to ascertain the extent of its potential
Plaintiffs'
a measure of claimed damages and they are "reasonably calculated to
evidence".
Plaintiffs'
18. Verified Bill of Particulars is insufficient and improper for se
Plaintiffs'
First, because it is not verified by Plaintiff. Second, all of responses
overbroad"
boilerplate objections that the requests are "vague and in violation
which prescribes that objections shall be stated with "reasonable particularity".
Plaintiffs'
responses are inadequate since they fail to particularize newly asserted
Amended Complaint. As the purpose of a bill of particulars is "to amplify the p
proof and prevent surprise at the trial". Medaris v Vosburgh, 93 A.D.2d 882 (2
Plaintiffs'
responses failed to provide such amplification.
Plaintiffs' Defendant-' faith"
19. counsel had not responded to the "good lett
7 of 55
the of this motion.
FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
attorney
on this issue, the matter does not appear to be resolvable without the C
intervention.
22. If a person fails to respond to or comply with a discovery request, the pa
disclosure may move to compel compliance or a response. CPLR 3124. Alternative
failure to comply with pretrial discovery orders are found in CPLR 3126, which
sanction of striking
the defaulting party's pleadings.
23. Unless the Court issues a conditional order of dismissal and directs that
immediately comply with their discovery obligations, Plaintiffs will not produce
discovery and Defendants would be significantly prejudiced if forced to proceed
absence of the requested discovery.
Defendants'
WHEREFORE, it is respectfully requested that this Court grants
entirety and issues the Order:
Plaintiffs'
(a) Striking Complaint;
(b) Compelling the Plaintiffs to fully comply with outstanding discovery dem
(10) days on the condition of preclusion or striking of the pleadings in the event
compliance;
(c) Granting costs, disbursements and attorney fees in connection with the making
motion; and
(d) Granting such other and further relief as this Court may deem just and proper.
DATED: Brooklyn, New8 ofYork
55 Respectfully submitt
FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
'A'
Exhibit
9 of 55
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NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
R O B E R T B O N D A R, A T T O R N E Y A T L A W,
· RD
2 8 D O O L E Y S T R E E T 3 F L O O R ·
B R O O K L Y N,
Tel. (347) 462-3262
Fax (347) 462-3261
e-mail: rbondar@bondarlaw.com
•Member
August 22, 2018
BY E-MAIL AND R
Lon J. Seidman, Esq.
DIAMOND McCARTHY LLP
295 Madison Avenue
27*
floor
New York, NY 10017
_RE: Stern v. Ardachev, Index 653476/13
Dear Mr. Seidman,
Plaintiffs'
I have had an opportunity to review responses to the Demand for Bill
and Demands for Production of Documents. These raise several issues that I mus
attention.
I do not believe that the responses I have received represent a good faith effort t
discovery. Seventeen of the seventeen responses I have received are subject to s
objection. This appears to be an exercise in legal
gamesmanship rather than the
effort to provide discovery that is prescribed by the CPLR. By this letter, Defendants
attempting to amicably resolve this discovery dispute in hopes that you will modif
without the need to involve the court.
You have objected to Request No. 4 on the basis that it "seeks proprietary informatio
ground that it seeks information that is not relevant to any new claim or defense".
10 of 55
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calculated to lead to relevant evidence". Wadolowski v. Cohen, 99 A.D.3d 793,
237 (2 Dept. 2012).
"untimely"
You have objected to Requests 5-14 on the basis that they are and
any new claim or defense". Such objections are improper. To my knowledge, P
file the note of issue, and discovery was not certified as completed. In any event,
Plaintiffs'
amendment of its complaint, Defendants require additional discovery.
17, Defendants are seeking information regarding potential witnesses to the claim
Plaintiffs'
of this action, as well as proof of contribution of assets to ACS, which
were subsequently wrongfully transferred by Defendants to Delex Air Cargo, L
require these documents to ascertain the extent of its potential liability and gain
Plaintiffs'
claimed damages and they are "reasonably calculated to lead to relevant
Plaintiffs'
Verified Bill of Particulars is insufficient and improper for several im
Plaintiffs'
First, it is not verified by Plaintiff. Second, all of responses contain s
overbroad"
boilerplate objections that the requests are "vague and in violation
which prescribes that objections shall be stated with "reasonable particularity".
Plaintiffs'
responses are inadequate since they fail to particularize
newly asserted
Amended Complaint. As you know, the purpose of a bill of particulars is "to am
pleadings, limit the proof and prevent surprise at the trial". Medaris v Vosburgh,
Plaintiffs'
(2 Dept. 1983). responses fail to provide such amplification and unless
forthwith, Defendants will have to invoke the provisions of CPLR 3042(d), includ
of evidence or striking the pleadings.
Defendants are unable to conduct the deposition of the Plaintiff on August 24, 2
absence of the demanded discovery. This letter is intended to serve as a good fai
resolve this discovery dispute, prior to engaging in the discovery motion practice.
NYCRR §202.7(a). Unless responsive documents are received by this office on
25, 2018, we will have no other alternative but to seek judicial intervention by m
Plaintiffs'
motion, compelling responses or in alternative
striking their
discovery
Very Truly Yours,
11 of 55
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'B'
Exhibit
12 of 55
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NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018
[FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 P1d
NYSCEF DOC. NO. 138 RECE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
:
PETER STERN and EXPRESS TRADE CAPITAL,
INC., : Index No. 653
Plaintiffs, : [PROPOSED]
AMENDED
-against- : COMPLAINT
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.
Plaintiffs Peter Stern and Express Trade Capital, Inc., by and through
Diamond McCarthy LLP, as and for their amcaded complaint against
respectfully allege:
PARTIES
1. P.laintiff Peter Stern ("Stern") is an individual
residing in New York
2. Plaintiff Express Trade Capital, Inc. ("ETC") is a corporation
existing
under the laws of the State of New York and is êñgaged in the business
hance ETC was called Express Service Forwardiñg, Inc. ("ESF") upon its formatio
changed its name to Express Service Capital, Inc. ("ESC") in 2010 before finally
13 of 55
name to Express Trade Capital, Inc. in 2011. ETC, ESC and ESF, being
the sa
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|F ILED: NEW YORK COUNTY CLERK 01/2 4/2018 05 : 03 P
NYSCEF DOC. NO. 138 RECEI
4. Upon information and belief, defandant Air Cargo Services L.L.C.
limited liability company organized and existing under the laws of the State of N
engaged in the business of freight forwarding and logistics. Ardachev is the sole
ACS.
5. Upon information and defendant Delex Inc. ("Delex
belief, Inc.")
organized and existing under the laws of the State of New York and is in the bus
forwarding and logistics. Ardachev is the sole shareholder of Delex Inc.
6. Upon information and belief, the Fourth named defendant Delex
is a limited liability company organized and existing
under the laws of the State
and is in the business of freight forwarding and logistics. Ardachev is the sole m
Air Cargo LLC.
7. Upon information and belief, the fifth named defendant Delex Air
limited liability company organized and existing under the laws of the State of W
is in the business of freight forwarding and logistics. Ardachev is the sole mamber
Cargo LLC.
BACKGROUND
8. In late 2003, plaintiff Express was engaged in the business of freigh
logistics, cüstunis clearance, and cargo handling, and defendant Delex Inc. was
business of freight forwarding and logistics.
14 of 55
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[FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM
NYSCEF DOC. NO. 138 RECEIV
10. Defeñdants contributed their existing air freight
forwarding business
Venture.
11. Plaintiffs contributed office space, personnel, furniture, offic
computer systems, and their existing clients to the Joint Venture. In addit
centributed phone numbers that had been used by Express since 1993 to rece
Express'
próspective clients gained through extensive marketing efforts.
12. The Joint Venture's business was headquartered at the Port Authority
JFK Intemational Airport at Cargo Building 83, Jamaica, New York ("JFK").
13. In order to obtain space at JFK, a potential tenant had to obtain
verifications, authorizations, recom-mendaticas, and have an established background
cargo services provider. At that time, Delex Inc. was unable to obtain office space
14. Express, thicagh its long-standing relationships and established
airline cargo services provider had the necessary credêñtials and space permit to l
Preview
FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -- --- --- -----------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. -against- NOTICE MOTION 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 PLEASE TAKE NOTICE that, upon the annexed Affirmation of Robert B August 25, 2018, the exhibits attached thereto, and all the prior pleadings and herein, Defendants, by their undersigned counsel, will move this Court, on Se at 9:30 a.m., or as soon thereafter as counsel may be heard, at the Submissian Supreme Court of New York, County of New York, 60 Centre Street, York, for an Order of this Court: Plaintiffs' a. Pursuant to CPLR 3126, striking Complaint for willful failure information; or b. Pursuant to CPLR 3124, compelling disclosure requested by Defendants. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answeri any, are to be served upon the undersigned at least seven (7) days prior to the re ATTORNEY CERTIFICATION An affirmation that a good faith effort has been made to resolve the issues motion is annexed hereto. 1 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 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 GOOD FAI PURSUANT UNIFORM OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability colspany, and DELEX AIR CARGO, LLC. a Washington limited liability company. Defendants. --- ----------X Robert Bondar, an attorney duly admitted to practice before the Courts of the S hereby affirms the truth of the following statements, upon information and belief, penalty of perjury: Defendants' 1. As set forth in my principal affirmation in support of motion to Plaintiffs have refused to comply with their discovery obligations in good f the information demanded by the Defendants in discovery. 2. I have attempted in good faith to obtain Plaintiff's compliance, and in a good resolve this discovery dispute as prescribed by 22 NYCRR 202.7(a). Plaintiffs' 3. By letter dated August 22, 2018, I wrote to counsel and advised 2 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 Plaintiffs provided complete responses by August 25, 2018. A copy of this to this affirmation. 5. As of the date of making of this motion, Defendants received no response t attempt at resolving the discovery dispute, precipitating the necessity of mak motion. Defendants' 6. Plaintiffs are willfully frustrating right to discovery pursuant to Civil Practice Law and Rules. Plaintiffs' 7. Despite my efforts to notify and consult with the attorney on this does not appear to be resolvable without the Court's intervention. Defendants' WHEREFORE, it is respectfully requested that this Court grants entirety. DATED: Brooklyn, New York Respectfully submitted, August 26, 2018 By Ro)ert'Éóiidar3sq 3 28 Dooley Street, Brooklyn, New York Telephone (347) 46 3 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _____________________________ ----- X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. 6 -against- AFFIRMATION 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, an attorney duly admitted to practice before the Courts of the S hereby affirms the truth of the following statements, upon information and belief, penalty of perjury: 1. I am a principal attorney at the Law Office of Robert Bondar, the attorney Defendants herein. As such I am fully familiar with all the proceedings in this m 2. This affirmation is submitted in support of a motion for an Order pursuant and 3126: Plaintiffs' (a) Striking Complaint for willful failure to produce d demanded by the Defendants; Defendants' (b) Compelling Plaintiffs to comply with the Demand 4 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 4. There, Plaintiffs allege that, in addition to their original claims of breach under the doctrine of successor liability (namely, the de facto merger and mere causes of action) Defendant AIR CARGO SERVICES L.L.C merged into Defenda AIR CARGO or that Defendant DELEX AIR CARGO is a mere continuation a Defendant AIR CARGO SERVICES L.L.C. Accordingly, Plaintiffs, by way of of 50% of AIR CARGO SERVICES claim that they should be entitled to 50% DELEX AIR CARGO and share of its profits. EXHIBIT B. 5. On July 16, 2018, Defendants timely submitted their amended answer d new claims of ownership and entitlement to accounting and share of profits of CARGO. EXHIBIT C. 6. On July 18, 2018, Defendants served Plaintiffs with a Demand for Producti Documents and the Demand for Bill of Particulars. EXHIBIT D. Plaintiffs' 7. Within those demands, Defendant requested discovery of docum evidencing alleged Plaintiff's claimed contributions to AIR CARGO SERVICES, employees and assets, including any customers, which it alleged to have transferred Defendants, copies of Plaintiff's tax returns for the relevant time period, and writt coñmmnications in connection with the alleged transfers. Defendants contend th documents constitute material and useful information reasonably calculated to l 5 of 55 discovery of admissible evidence, and therefore they are discoverable. FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 9. Defendants also requested a Bill of Particulars to amplify the allegations Defendants' filed pleadings. demand contained only five items, which Plaintiff particularize. Defendants' 10. On August 14, 2018, Plaintiffs served its responses to the Defendants' counsel received on August 17, 2018. There, Plaintiffs improperly Defeñdañts' the demands, through blanket and generic responses, on the ground demands were "not relevant", "untimely", or "vague and overbroad". EXHIBIT 11. Plaintiffs are incorrect. The discovery requests propounded by the Defenda Plaintiffs' imperative to ascertain the extent of liability claims and their measure necessary" such, Defendants timely and properly demanded "material and informa action" Plaintiffs for the "prosecution or defense of an within the meaning of C Plaintiffs' 12. refusal to produce demanded discovery is blatantly improper prejudicial to Defendants. Plaintiffs' 13. Defendants deny that they ever purchased interest in AIR CA SERVICES. Defendants deny that AIR CARGO SERVICES merged with DELE or that DELEX AIR CARGO is the successor to AIR CARGO SERVICES. Plaintiffs' 14. Plaintiffs had not produced a shred of evidence, other than sel contradictory statements of its ever-changing legal position, to proceed to trial 6 of 55 15. To avoid of this and in a good faith attempt to resolve th FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 Plaintiffs' 16. In the letter, I described in painstaking detail the deficiencies of cited applicable statutes and caselaw to show that Plaintiffs were entitled to the discovery. 17. Defendants are seeking information regarding potential witnesses to the Plaintiffs' defenses of this action, as well as proof of contribution of assets to A Plaintiffs claim were subsequently wrongfully transferred by Defendants to Dele LLC. Defendants require these documents to ascertain the extent of its potential Plaintiffs' a measure of claimed damages and they are "reasonably calculated to evidence". Plaintiffs' 18. Verified Bill of Particulars is insufficient and improper for se Plaintiffs' First, because it is not verified by Plaintiff. Second, all of responses overbroad" boilerplate objections that the requests are "vague and in violation which prescribes that objections shall be stated with "reasonable particularity". Plaintiffs' responses are inadequate since they fail to particularize newly asserted Amended Complaint. As the purpose of a bill of particulars is "to amplify the p proof and prevent surprise at the trial". Medaris v Vosburgh, 93 A.D.2d 882 (2 Plaintiffs' responses failed to provide such amplification. Plaintiffs' Defendant-' faith" 19. counsel had not responded to the "good lett 7 of 55 the of this motion. FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 attorney on this issue, the matter does not appear to be resolvable without the C intervention. 22. If a person fails to respond to or comply with a discovery request, the pa disclosure may move to compel compliance or a response. CPLR 3124. Alternative failure to comply with pretrial discovery orders are found in CPLR 3126, which sanction of striking the defaulting party's pleadings. 23. Unless the Court issues a conditional order of dismissal and directs that immediately comply with their discovery obligations, Plaintiffs will not produce discovery and Defendants would be significantly prejudiced if forced to proceed absence of the requested discovery. Defendants' WHEREFORE, it is respectfully requested that this Court grants entirety and issues the Order: Plaintiffs' (a) Striking Complaint; (b) Compelling the Plaintiffs to fully comply with outstanding discovery dem (10) days on the condition of preclusion or striking of the pleadings in the event compliance; (c) Granting costs, disbursements and attorney fees in connection with the making motion; and (d) Granting such other and further relief as this Court may deem just and proper. DATED: Brooklyn, New8 ofYork 55 Respectfully submitt FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 'A' Exhibit 9 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 R O B E R T B O N D A R, A T T O R N E Y A T L A W, · RD 2 8 D O O L E Y S T R E E T 3 F L O O R · B R O O K L Y N, Tel. (347) 462-3262 Fax (347) 462-3261 e-mail: rbondar@bondarlaw.com •Member August 22, 2018 BY E-MAIL AND R Lon J. Seidman, Esq. DIAMOND McCARTHY LLP 295 Madison Avenue 27* floor New York, NY 10017 _RE: Stern v. Ardachev, Index 653476/13 Dear Mr. Seidman, Plaintiffs' I have had an opportunity to review responses to the Demand for Bill and Demands for Production of Documents. These raise several issues that I mus attention. I do not believe that the responses I have received represent a good faith effort t discovery. Seventeen of the seventeen responses I have received are subject to s objection. This appears to be an exercise in legal gamesmanship rather than the effort to provide discovery that is prescribed by the CPLR. By this letter, Defendants attempting to amicably resolve this discovery dispute in hopes that you will modif without the need to involve the court. You have objected to Request No. 4 on the basis that it "seeks proprietary informatio ground that it seeks information that is not relevant to any new claim or defense". 10 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 calculated to lead to relevant evidence". Wadolowski v. Cohen, 99 A.D.3d 793, 237 (2 Dept. 2012). "untimely" You have objected to Requests 5-14 on the basis that they are and any new claim or defense". Such objections are improper. To my knowledge, P file the note of issue, and discovery was not certified as completed. In any event, Plaintiffs' amendment of its complaint, Defendants require additional discovery. 17, Defendants are seeking information regarding potential witnesses to the claim Plaintiffs' of this action, as well as proof of contribution of assets to ACS, which were subsequently wrongfully transferred by Defendants to Delex Air Cargo, L require these documents to ascertain the extent of its potential liability and gain Plaintiffs' claimed damages and they are "reasonably calculated to lead to relevant Plaintiffs' Verified Bill of Particulars is insufficient and improper for several im Plaintiffs' First, it is not verified by Plaintiff. Second, all of responses contain s overbroad" boilerplate objections that the requests are "vague and in violation which prescribes that objections shall be stated with "reasonable particularity". Plaintiffs' responses are inadequate since they fail to particularize newly asserted Amended Complaint. As you know, the purpose of a bill of particulars is "to am pleadings, limit the proof and prevent surprise at the trial". Medaris v Vosburgh, Plaintiffs' (2 Dept. 1983). responses fail to provide such amplification and unless forthwith, Defendants will have to invoke the provisions of CPLR 3042(d), includ of evidence or striking the pleadings. Defendants are unable to conduct the deposition of the Plaintiff on August 24, 2 absence of the demanded discovery. This letter is intended to serve as a good fai resolve this discovery dispute, prior to engaging in the discovery motion practice. NYCRR §202.7(a). Unless responsive documents are received by this office on 25, 2018, we will have no other alternative but to seek judicial intervention by m Plaintiffs' motion, compelling responses or in alternative striking their discovery Very Truly Yours, 11 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 'B' Exhibit 12 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 [FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 P1d NYSCEF DOC. NO. 138 RECE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PETER STERN and EXPRESS TRADE CAPITAL, INC., : Index No. 653 Plaintiffs, : [PROPOSED] AMENDED -against- : COMPLAINT 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. Plaintiffs Peter Stern and Express Trade Capital, Inc., by and through Diamond McCarthy LLP, as and for their amcaded complaint against respectfully allege: PARTIES 1. P.laintiff Peter Stern ("Stern") is an individual residing in New York 2. Plaintiff Express Trade Capital, Inc. ("ETC") is a corporation existing under the laws of the State of New York and is êñgaged in the business hance ETC was called Express Service Forwardiñg, Inc. ("ESF") upon its formatio changed its name to Express Service Capital, Inc. ("ESC") in 2010 before finally 13 of 55 name to Express Trade Capital, Inc. in 2011. ETC, ESC and ESF, being the sa FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 |F ILED: NEW YORK COUNTY CLERK 01/2 4/2018 05 : 03 P NYSCEF DOC. NO. 138 RECEI 4. Upon information and belief, defandant Air Cargo Services L.L.C. limited liability company organized and existing under the laws of the State of N engaged in the business of freight forwarding and logistics. Ardachev is the sole ACS. 5. Upon information and defendant Delex Inc. ("Delex belief, Inc.") organized and existing under the laws of the State of New York and is in the bus forwarding and logistics. Ardachev is the sole shareholder of Delex Inc. 6. Upon information and belief, the Fourth named defendant Delex is a limited liability company organized and existing under the laws of the State and is in the business of freight forwarding and logistics. Ardachev is the sole m Air Cargo LLC. 7. Upon information and belief, the fifth named defendant Delex Air limited liability company organized and existing under the laws of the State of W is in the business of freight forwarding and logistics. Ardachev is the sole mamber Cargo LLC. BACKGROUND 8. In late 2003, plaintiff Express was engaged in the business of freigh logistics, cüstunis clearance, and cargo handling, and defendant Delex Inc. was business of freight forwarding and logistics. 14 of 55 FILED: NEW YORK COUNTY CLERK 08/27/2018 04:22 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 08/27/2018 [FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM NYSCEF DOC. NO. 138 RECEIV 10. Defeñdants contributed their existing air freight forwarding business Venture. 11. Plaintiffs contributed office space, personnel, furniture, offic computer systems, and their existing clients to the Joint Venture. In addit centributed phone numbers that had been used by Express since 1993 to rece Express' próspective clients gained through extensive marketing efforts. 12. The Joint Venture's business was headquartered at the Port Authority JFK Intemational Airport at Cargo Building 83, Jamaica, New York ("JFK"). 13. In order to obtain space at JFK, a potential tenant had to obtain verifications, authorizations, recom-mendaticas, and have an established background cargo services provider. At that time, Delex Inc. was unable to obtain office space 14. Express, thicagh its long-standing relationships and established airline cargo services provider had the necessary credêñtials and space permit to l