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INDEX NO. 151302/2014
FILED: NEW YORK COUNTY CLERK 0271372014)
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/13/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ee eee ee nent nemennenennnnnnenennnnennne x
KE KAILANI PARTNERS, LLC, Index No.
Petitioner, AFFIDAVIT OF ANDREW J.
LAUTENBACH IN SUPPORT
OF PETITIONER’S MOTION
TO COMPEL PURSUANT TO
CPLR 3119 AND 3124
MICHAEL J. FUCHS,
Respondents,
met nnn
AFFIDAVIT OF ANDREW J. LAUTENBACH
STATE OF HAWAII )
) 8s:
CITY AND COUNTY OF HONOLULU )
I, ANDREW J. LAUTENBACH, being first duly sworn, on oath, depose and say:
1 Iam a lawyer in Honolulu, Hawaii, a director in the law firm Starn O’Toole
Marcus & Fisher, and counsel to Ke Kailani Partners, LLC in a civil action entitled Ke Kailani
Partners, LLC v. Ke Kailani Development, LLC, et al., Civil No. 09-1-2523-10 (the “Hawaii
Action”) in the Circuit Court of the First Circuit, Honolulu, Hawaii, (the “Hawaii Court”) and in
the related consolidated appeals therefrom to the Hawaii Intermediate Court of Appeals, Case
No. 12-0000070, and Case No. CAAP-12-0000758.
2. The statements herein are based on my personal knowledge to the extent I was
personally involved, and otherwise based on information and belief from documents and
information I received.
3 I make this affidavit in support of Petitioner’s Motion to Compel Pursuant to
CPLR 3119 and 3124.
4 Petitioner is the judgment creditor on a $21,594,668.55 judgment issued in the
Hawaii Action against Respondent and judgment debtor Fuchs.
5 Attached as Exhibit 1 is a true and correct copy of the discovery motion dated
November 8, 2013 (the “Hawaii Discovery Motion”), wherein Petitioner, as Plaintiff in the
Hawaii Action, moved the Hawaii Court for an order directing Respondent Michael J. Fuchs
(“Fuchs”), the judgment debtor in the Hawaii Action, to submit to a deposition and provide
document discovery. Petitioner requested documents and an order to compel Fuchs to appear in
Hawaii for a judgment debtor deposition, or, in the alternative, where the court deemed
appropriate.
6. Attached as Exhibit 2 is true and correct copy of the transcript of hearing held on
December 24, 2013 in the Hawaii Court before Judge Ayabe, the presiding judge in the Hawaii
Action, wherein Judge Ayabe heard argument on the Hawaii Discovery Motion (“Hawaii
12/24/13 Tr.”).
7 Attached as Exhibit 3 is a true and correct copy of the Judge Ayabe’s order dated
January 21, 2014, (the “Hawaii Discovery Order”).
8 Attached as Exhibit 4 are true and correct copies of Petitioner’s Notice of Rule 45
Subpoenas and Notice of Deposition, which were served on Fuchs’ counsel in the Hawaii Action
on January 21, 2014, in compliance with Hawaii law.
9 After serving these subpoenas on Fuchs through Fuchs’ attorneys in the Hawaii
Action, I, or those working under my direction, provided original copies of the subpoenas to
Dechert LLP, Petitioner’s New York counsel.
10. On August 31, 2012, Fuchs filed a notice of appeal in Hawaii of the
$21,594,668.55 deficiency judgment that had been entered against him in the Hawaii Action on
April 23, 2012
il On May 14, 2013, the Hawaii Court ruled on the motion to stay filed in the
Hawaii Action, and granted a stay upon posting of a bond in the full amount of the judgment.
12 On July 10, 2013, the Hawaii Court revised its prior ruling, and entered an order
stating that enforcement of the judgment would not be stayed unless and until Fuchs posted a
bond in the amount of $25,000,000.00 in the Hawaii Action.
13 On July 15, 2013, Fuchs removed the Hawaii Action to federal court.
14 On October 24, 2013, the federal court found no basis for the removal and
remanded the Hawaii Action to Hawaii state court.
15 Attached as Exhibit 5 is a true and correct copy of the opposition Fuchs filed on
December 18, 2103 (the “Hawaii Discovery Opposition”) in response to Petitioner’s Hawaii
Discovery Motion.
Further affiant sayeth naught.
Executed this |Z day of February 2014, Honolulu, Hawaii
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INDEX NO. 151302/2014 FILED: NEW YORK COUNTY CLERK 0271372014) NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/13/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ee eee ee nent nemennenennnnnnenennnnennne x KE KAILANI PARTNERS, LLC, Index No. Petitioner, AFFIDAVIT OF ANDREW J. LAUTENBACH IN SUPPORT OF PETITIONER’S MOTION TO COMPEL PURSUANT TO CPLR 3119 AND 3124 MICHAEL J. FUCHS, Respondents, met nnn AFFIDAVIT OF ANDREW J. LAUTENBACH STATE OF HAWAII ) ) 8s: CITY AND COUNTY OF HONOLULU ) I, ANDREW J. LAUTENBACH, being first duly sworn, on oath, depose and say: 1 Iam a lawyer in Honolulu, Hawaii, a director in the law firm Starn O’Toole Marcus & Fisher, and counsel to Ke Kailani Partners, LLC in a civil action entitled Ke Kailani Partners, LLC v. Ke Kailani Development, LLC, et al., Civil No. 09-1-2523-10 (the “Hawaii Action”) in the Circuit Court of the First Circuit, Honolulu, Hawaii, (the “Hawaii Court”) and in the related consolidated appeals therefrom to the Hawaii Intermediate Court of Appeals, Case No. 12-0000070, and Case No. CAAP-12-0000758. 2. The statements herein are based on my personal knowledge to the extent I was personally involved, and otherwise based on information and belief from documents and information I received. 3 I make this affidavit in support of Petitioner’s Motion to Compel Pursuant to CPLR 3119 and 3124. 4 Petitioner is the judgment creditor on a $21,594,668.55 judgment issued in the Hawaii Action against Respondent and judgment debtor Fuchs. 5 Attached as Exhibit 1 is a true and correct copy of the discovery motion dated November 8, 2013 (the “Hawaii Discovery Motion”), wherein Petitioner, as Plaintiff in the Hawaii Action, moved the Hawaii Court for an order directing Respondent Michael J. Fuchs (“Fuchs”), the judgment debtor in the Hawaii Action, to submit to a deposition and provide document discovery. Petitioner requested documents and an order to compel Fuchs to appear in Hawaii for a judgment debtor deposition, or, in the alternative, where the court deemed appropriate. 6. Attached as Exhibit 2 is true and correct copy of the transcript of hearing held on December 24, 2013 in the Hawaii Court before Judge Ayabe, the presiding judge in the Hawaii Action, wherein Judge Ayabe heard argument on the Hawaii Discovery Motion (“Hawaii 12/24/13 Tr.”). 7 Attached as Exhibit 3 is a true and correct copy of the Judge Ayabe’s order dated January 21, 2014, (the “Hawaii Discovery Order”). 8 Attached as Exhibit 4 are true and correct copies of Petitioner’s Notice of Rule 45 Subpoenas and Notice of Deposition, which were served on Fuchs’ counsel in the Hawaii Action on January 21, 2014, in compliance with Hawaii law. 9 After serving these subpoenas on Fuchs through Fuchs’ attorneys in the Hawaii Action, I, or those working under my direction, provided original copies of the subpoenas to Dechert LLP, Petitioner’s New York counsel. 10. On August 31, 2012, Fuchs filed a notice of appeal in Hawaii of the $21,594,668.55 deficiency judgment that had been entered against him in the Hawaii Action on April 23, 2012 il On May 14, 2013, the Hawaii Court ruled on the motion to stay filed in the Hawaii Action, and granted a stay upon posting of a bond in the full amount of the judgment. 12 On July 10, 2013, the Hawaii Court revised its prior ruling, and entered an order stating that enforcement of the judgment would not be stayed unless and until Fuchs posted a bond in the amount of $25,000,000.00 in the Hawaii Action. 13 On July 15, 2013, Fuchs removed the Hawaii Action to federal court. 14 On October 24, 2013, the federal court found no basis for the removal and remanded the Hawaii Action to Hawaii state court. 15 Attached as Exhibit 5 is a true and correct copy of the opposition Fuchs filed on December 18, 2103 (the “Hawaii Discovery Opposition”) in response to Petitioner’s Hawaii Discovery Motion. Further affiant sayeth naught. Executed this |Z day of February 2014, Honolulu, Hawaii ety, SsSs ‘ “MyG, &Z, <8 Nis "4c Onn ANDREW J. LAUTENBACH Li, aus seine oN sworn to before me Doc. Date: 2-ha-t$ # of Pages:_ B this_/@day of February, 2014 Notary Name: _Georgi, tt. Salecas Woka: Description: Affidavit of Andrew J. Lautenbach Aeo keoue wt} NOU gy eae Lt ott Notary Public, State of Hawaii Note jignature 9-49-15 Se My commission expires: 2-28 “on NOTARY CERTIFICATIONS * ee *= , ob wo = Uy, Hye “nag