On February 13, 2014 a
Letter,Correspondence
was filed
involving a dispute between
Helen Siller Individually And Derivatively As A Shareholder Of And On Behalf Of The Third Brevoort Corp,
and
Andrew Baum,
Barbara Eisenberg,
Bonnie Hiller,
Christine Beck,
Cliff Russo,
Diane C Nardone,
Elizabeth Louie,
George Aloi,
Jane Warren,
John C Woell,
Mortimor C Lazarus,
The Third Brevoort Corporation,
for Real Property - Other
in the District Court of New York County.
Preview
ABRAMS GARFINKEL MARGOLIS BERGSON, LLP
1430 Broadway * 17th Floor « New York, NY 10018 « P: 212-201-1170 © F: 212-201-1171 * www.agmblaw.com
September 10, 2014
VIA NYSCEF and HAND DELIVERY
Honorable Shlomo S. Hagler
Supreme Court of the State of New York
County of New York
Part 17
60 Cenire Street
New York, NY 10007
Re: _ Siller v. The Third Brevoort Corporation et al., Index No. 151313/2014
Dear Justice Hagler:
We represent Defendants in the above- referenced action. We write to
object to the improper sur-reply affidavit and accompanying exhibits (“Sur-
Reply”) submitted by Plaintiff's husband/counsel Stephen Siller, Esq., ("Siller”),
sworn to September 3, 2014 (NYSCEF Doc. Nos. 73 - 82), purportedly filed in
further opposition to Defendants’ Motion to Dismiss the First Amended Complaint
(“Motion to Dismiss,” Motion Seq. #003). We also object to Plaintiff's letter to the
Court, dated September 4, 2014 (which was not e-filed).
Plaintiff's Sur-Reply -- filed two months after Defendants’ Motion to Dismiss
was fully submitted -- is a blatant violation of the Rules of the Justices of the
Court.
More importantly, Plaintiff's Sur-Reply is a misguided effort to malign
defendant Diane C. Nardone, Esq. (“Nardone”), and associate her with the
alleged misconduct of a nonparty contractor that took place over fourteen (14)
years ago. Nardone is currently President of the Board and has been elected to
the Board numerous times by her fellow cooperators beginning in 1992.
Defendants ask this Court to reject the Sur-Reply for what it is--a desperate
attempt to prejudice and distract the Court from the First Amended Complaint's
irrefutable legal deficiencies.ABRAMS GARFINKEL
Marcouis BERGSON, LLP
Hon. Shlomo S. Hagler
September 10, 2014
Page 2
As a threshold matter, the SurReply (denominated as an affidavit “In
Further Opposition” to Defendants’ Motion to Dismiss) is prohibited by Rule 14(c)
of the Rules of the Justices of the Court, which provides:
The CPLR does not provide for sur-reply papers, however
denominated. Papers or letters regarding a motion should not be
presented to the court after submission of the motion in the Motion
Submission Part Courtroom (Room 130), or after argument in the
Part, if any, except with the advance permission of the court.
Materials presented in violation of this Rule will not be read.
(emphasis added).
Defendants’ Motion to Dismiss was fully submitted two months ago and Plaintiff
did not seek advance leave of Court to file the Sur-Reply. Accordingly, the Sur-
Reply violates Rule 14(c), should not be read or considered by the Court; and
should be stricken from the record.
This is not the first time Plaintiff has ignored the most basic rules of
procedure and motion practice. Plaintiff initiated this action by filing a meritless
motion by order to show cause for a preliminary injunction— which this Court
denied. Plaintiff also filed a frivolous pre-joinder Motion for Partial Summary
Judgment on her inoperative and superseded original complaint (“Original
Complaint") just days before Defendants' response to the First Amended
Complaint was due, in a transparent attempt to thwart Defendants’
unquestionable right to seek dismissal of the First Amended Complaint.
Siller's Sur-Reply is merely a continuation of his campaign to distract this
Court by waging what can only be described as a personal vendetta against
Nardone.
Plaintiff's Sur-Reply has nothing whatsoever to do with the legal sufficiency
of the First Amended Complaint or whether Plaintiff has, as she claims, carte
blanche, in perpetuity, to replace her washer/dryer with units of her choice
rather than follow the building's applicable House Rules and approval process.
For the foregoing reasons, Defendants respectfully request that the Sur-
Reply and September 4, 2014 letter be stricken from the record as improper,
irrelevant, and a waste of this Court's time. Alternatively, Defendants request an
opportunity to submit a substantive response to these patently improper papers.ApRAMS GARFINKEL
MarGOLIs BERGSON, LLP
Hon. Shlomo S. Hagler
September 10, 2014
Page 3
Oral argument on Defendants’ Motion fo Dismiss and Plaintiff's Motion for
Partial Summary Judgment is currently scheduled for September 22, 2014.
Sincerely,
a
Barry G. Margolis
cc: Counsel of Record via NYSCEF
Document Filed Date
September 10, 2014
Case Filing Date
February 13, 2014
Category
Real Property - Other
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ABRAMS GARFINKEL MARGOLIS BERGSON, LLP 1430 Broadway * 17th Floor « New York, NY 10018 « P: 212-201-1170 © F: 212-201-1171 * www.agmblaw.com September 10, 2014 VIA NYSCEF and HAND DELIVERY Honorable Shlomo S. Hagler Supreme Court of the State of New York County of New York Part 17 60 Cenire Street New York, NY 10007 Re: _ Siller v. The Third Brevoort Corporation et al., Index No. 151313/2014 Dear Justice Hagler: We represent Defendants in the above- referenced action. We write to object to the improper sur-reply affidavit and accompanying exhibits (“Sur- Reply”) submitted by Plaintiff's husband/counsel Stephen Siller, Esq., ("Siller”), sworn to September 3, 2014 (NYSCEF Doc. Nos. 73 - 82), purportedly filed in further opposition to Defendants’ Motion to Dismiss the First Amended Complaint (“Motion to Dismiss,” Motion Seq. #003). We also object to Plaintiff's letter to the Court, dated September 4, 2014 (which was not e-filed). Plaintiff's Sur-Reply -- filed two months after Defendants’ Motion to Dismiss was fully submitted -- is a blatant violation of the Rules of the Justices of the Court. More importantly, Plaintiff's Sur-Reply is a misguided effort to malign defendant Diane C. Nardone, Esq. (“Nardone”), and associate her with the alleged misconduct of a nonparty contractor that took place over fourteen (14) years ago. Nardone is currently President of the Board and has been elected to the Board numerous times by her fellow cooperators beginning in 1992. Defendants ask this Court to reject the Sur-Reply for what it is--a desperate attempt to prejudice and distract the Court from the First Amended Complaint's irrefutable legal deficiencies.ABRAMS GARFINKEL Marcouis BERGSON, LLP Hon. Shlomo S. Hagler September 10, 2014 Page 2 As a threshold matter, the SurReply (denominated as an affidavit “In Further Opposition” to Defendants’ Motion to Dismiss) is prohibited by Rule 14(c) of the Rules of the Justices of the Court, which provides: The CPLR does not provide for sur-reply papers, however denominated. Papers or letters regarding a motion should not be presented to the court after submission of the motion in the Motion Submission Part Courtroom (Room 130), or after argument in the Part, if any, except with the advance permission of the court. Materials presented in violation of this Rule will not be read. (emphasis added). Defendants’ Motion to Dismiss was fully submitted two months ago and Plaintiff did not seek advance leave of Court to file the Sur-Reply. Accordingly, the Sur- Reply violates Rule 14(c), should not be read or considered by the Court; and should be stricken from the record. This is not the first time Plaintiff has ignored the most basic rules of procedure and motion practice. Plaintiff initiated this action by filing a meritless motion by order to show cause for a preliminary injunction— which this Court denied. Plaintiff also filed a frivolous pre-joinder Motion for Partial Summary Judgment on her inoperative and superseded original complaint (“Original Complaint") just days before Defendants' response to the First Amended Complaint was due, in a transparent attempt to thwart Defendants’ unquestionable right to seek dismissal of the First Amended Complaint. Siller's Sur-Reply is merely a continuation of his campaign to distract this Court by waging what can only be described as a personal vendetta against Nardone. Plaintiff's Sur-Reply has nothing whatsoever to do with the legal sufficiency of the First Amended Complaint or whether Plaintiff has, as she claims, carte blanche, in perpetuity, to replace her washer/dryer with units of her choice rather than follow the building's applicable House Rules and approval process. For the foregoing reasons, Defendants respectfully request that the Sur- Reply and September 4, 2014 letter be stricken from the record as improper, irrelevant, and a waste of this Court's time. Alternatively, Defendants request an opportunity to submit a substantive response to these patently improper papers.ApRAMS GARFINKEL MarGOLIs BERGSON, LLP Hon. Shlomo S. Hagler September 10, 2014 Page 3 Oral argument on Defendants’ Motion fo Dismiss and Plaintiff's Motion for Partial Summary Judgment is currently scheduled for September 22, 2014. Sincerely, a Barry G. Margolis cc: Counsel of Record via NYSCEF