FILED: NEW YORK COUNTY CLERK 07/31/ :54 PM INDEX NO /2014 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/31/2015

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1 FILED: NEW YORK COUNTY CLERK 07/31/ :54 PM INDEX NO /2014 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/31/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SEARS ROEBUCK AND CO., -against- Plaintiff, VORNADO REALTY TRUST, ALEXANDERS, INC., ALEXANDERS REGO SHOPPING CENTER, INC., REGO II BORROWER LLC, ALEXANDERS REGO PARK CENTER, INC., ALEXANDERS OF REGO PARK II, INC. and ALEXANDERS OF REGO PARK INC., Index Number: /2014 (Bannon, J.S.C.) AFFIRMATION OF JORDAN GREENBERGER Motion Sequence 001 Defendants. JORDAN GREENBERGER, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1. I am an associate of Moses & Singer, LLP, attorneys for plaintiff Sears, Roebuck and Co. ( Plaintiff or Sears ). I respectfully submit this affirmation in support of Plaintiff s motion for an Order: (a) striking the pleadings of defendants Vornado Realty Trust ( Vornado ), Alexanders, Inc. ( Alexanders ), Alexanders Rego Shopping Center, Inc. ( ARSC ), Rego II Borrower LLC ( Rego II ), Alexanders Rego Park Center, Inc. ( ARPC ), Alexanders of Rego Park II, Inc. ( ARP II ), and Alexanders of Rego Park Inc. ( ARP ) (collectively, Defendants ), pursuant to CPLR 3126(3); (b) imposing monetary sanctions upon Defendants and awarding Plaintiff its costs and attorney s fees incurred in relation to this motion and the issues raised herein; and (c) entering judgment in favor of Plaintiff and against Defendants. In the event the Court does not strike Defendants pleadings, Plaintiff requests other relief under CPLR 3126(1) or (2), and also the dismissal of Defendants affirmative defenses. 1 1 This affirmation includes the required Uniform Rule 202.7(a) statement of good faith efforts to resolve the issues raised by the motion v

2 2. The motion should be granted because Defendants have willfully and contumaciously failed to provide Plaintiff with, inter alia, interrogatory responses, a witness list, and numerous categories of documents responsive to Plaintiff s document demands. Defendants also have not separately disclosed its insurance coverage information, though it may be buried in the over 11,000 pages that Defendants belatedly produced. 3. Defendants willfulness is evidenced by their failure to comply with three (3) Orders of this Court, and their failure to comply with stipulated extensions of time that were granted by Plaintiff based on Defendants (mis)representations that the discovery would be forthcoming. Defendants waived any objections (other than privilege) by not timely responding to Plaintiff s interrogatories and document demands. Further, Defendants transparently attempted to divert the Court s attention away from Defendants discovery defaults by both manufacturing purported issues with Plaintiff s disclosures and belatedly producing thousands of pages of documents upon Plaintiff. Pleadings & Background 4. This action concerns, inter alia, various water intrusions and nuisances at the Sears mega store located at Rego Park, Queens, that has caused Plaintiff substantial damages. As further alleged in the amended complaint, Defendants are the landlord, its predecessors, owners of the adjacent property that is causing the nuisance, and the managing agent (Vornado). 2 A true and correct copy of Plaintiff s Corrected First Amended Complaint is annexed hereto as Exhibit 1. See also NYSCEF DOC. NO Defendants deny liability, and asserted a number of boiler-plate affirmative defenses that are bereft of any factual claims to support the alleged defenses. A true and correct 2 In addition to claims relating to the floodings, Plaintiff seeks damages resulting from an arson attack and defendants violation of the Americans with Disabilities Act v

3 copy of the Defendant s Answer To Corrected First Amended Complaint is annexed hereto as Exhibit 2. The 1 st Order, Plaintiff s Discovery Demands & Defendants Requests For Extensions 6. The parties appeared for a preliminary conference on October 2, 2014, and the following day a Preliminary Conference Order was entered (the PC Order ). A true and correct copy of the PC Order is annexed hereto as Exhibit 3. See also NYSCEF Doc. No Pursuant to paragraph 6 of the PC Order, the deadline for Defendants to provide certain discovery including responses to interrogatories, document responses, and a witness list was December 12, Additionally, pursuant to paragraph 1 of the PC Order, Defendants were required to disclose its insurance coverage information to Plaintiff on or before November 7, In compliance with paragraph 6(c)-(d) of the PC Order, on November 7, 2014, Plaintiff timely served on Defendants, inter alia: (i) Plaintiff s First Interrogatories to Defendants ( Interrogatories ); and (ii) Plaintiff s First Demand to Defendants for Documents, Information and Things ( Document Demands ). A true and correct copy of the Interrogatories and Document Demands (with proof of service) are annexed hereto as Exhibits 4 and 5, respectfully On December 16, 2014 four days after the deadline in the PC Order Plaintiff requested a thirty (30) day extension of time to respond to the Interrogatories and Document Demands. On December 24, 2014, Defendants consented to the request, but noted that because the request was made after the deadline, that Defendants had waived any objections to Plaintiff s 3 Plaintiff concurrently served its Responses and Objections to: (i) Defendants Demand for Expert Witness Information; (ii) Defendant s Demand for Names and Addresses of Witnesses; (iii) Defendants Demand for CPLR 3101 & 4545 Source Payments Information; (iv) Defendants First Interrogatories; and (v) Defendants First Notice for Discovery and Inspection v

4 discovery demands other than privilege. A true and correct copy of Defendants December 16 th letter and Plaintiff s December 24 th response is annexed hereto as Exhibit On or about January 15, 2015, Defendants again requested an additional 30 days, indicating that they were making progress and that the discovery would be forthcoming soon. On January 16, 2015, Plaintiff agreed to the extension, but again noted that Defendants had waived their objections other than privilege. A true and correct copy of Defendants January 15 th letter and Plaintiff s January 16 th response is annexed hereto as Exhibit As further stated below, Defendants failed to comply with the deadlines in the PC Order, or the stipulated extensions. The 2 nd Discovery Order & Defendants Belated Document Production 12. On January 29, 2015, a compliance conference was held. A true and correct copy of the Compliance Conference Order, entered February 11, 2015, is annexed hereto as Exhibit 8 (the 2 nd Order ) See also NYSCEF Doc. No At that conference, the Court determined that [Defendants] have only served demands upon [Plaintiff], but have not provided any disclosures to [Plaintiff]. [Defendants] did not provide insurance info., exchange witness info., statements, photos, or respond to [Plaintiff s] discovery demands (interrogatories, document and info. Demands, site demand). Accordingly, the Court ordered that [Defendants] shall respond to [Plaintiff s] discovery demands on or before 2/28/2015. Id., para. 2 (emphasis added). Significantly, the 2 nd Order ordered responses to the discovery, and did not permit Defendants to assert belated objections. A compliance conference was scheduled for June 11, Unable to meet the February 28 th deadline, on February 26, 2015, Defendants wrote the Court requesting a conference. Defendants stated that Despite best efforts, we v

5 experienced several difficulties with getting documents from our clients due to internal management changes and other IT-related issues out of our control. On March 4, 2015, Defendants wrote a responsive letter to the Court, stating that Plaintiff had no objection to scheduling another conference, and noting various issues with Defendants failure to provide discovery. A true and correct copy of Defendants February 26 th letter and Plaintiff s March 4 th letter is annexed hereto as Exhibit Meanwhile, Defendants served Plaintiff with written Responses And Objections To Plaintiff s First Demand For Documents, Information And Things, dated February 27, 2015 ( Response To Document Demands ). A true and correct copy of Defendants Response To Document Demands is annexed hereto as Exhibit 10. Therein, Defendants asserted a number of objections, many of which are unclear inasmuch as they do not state whether Defendants is actually withholding responsive documents based on the objections. Significantly, even though Defendants served their Response To Document Demands, Defendants did not serve responses to the Interrogatories or a witness list (and still has not). 16. Defendants also began producing documents on a rolling basis, indicating in letters dated February 27 th, March 9 th, March 11 th, and May 6 th that their document production was ongoing. 4 Defendants finally asserted that their document production was now complete in a letter dated May 26, Defendants produced documents as follows: On Or About PRODUCTION BATES RANGE 2/27/15 RE /9/15 RE /20/15 RE In the March 11 th letter, Defendants asserted that they had not waived any objections and stated [t]o the extent you disagree, you are welcome to move for relief from the Court v

6 5/6/15 RE /26/15 RE The 3 rd Discovery Order 17. On June 11, 2015, a status conference was held. At the June 11 th conference, the Court determined that there was still outstanding discovery. Accordingly, the Court ordered, inter alia, [Defendants] to provide interrogatory responses within 30 days. The 3 rd Order did not address Defendants failure to provide a witness list, or issues with Defendants document production because at that time Plaintiff had not yet fully reviewed Defendants document production for issues due to the volume and dates of Defendants productions. Nonetheless, Plaintiff did not waive its right to a witness list or to raise issues with Defendants document production. A true and correct copy of the Status Conference Order, entered June 15, 2015, is annexed hereto as Exhibit 11 (the 3 rd Order ). See also NYSCEF Doc. No Defendants did not provide responses to the Interrogatories within thirty days. Defendants Failure To Respond To The Interrogatories 19. Defendants still have not provided Plaintiff with Defendants responses to the Interrogatories. This is a willful violation of the PC Order, the 2 nd Order, and the 3 rd Order. Moreover, according to Defendants own January 15, 2015 letter to Plaintiff requesting an extension, Defendants had a strong working draft of the responses, yet Defendants still have not yet served responses to Plaintiff s Interrogatories. Defendants have no reasonable or justifiable excuse for their failure to provide sworn responses to the Interrogatories v

7 20. Plaintiff will be prejudiced in the prosecution of this action if the case proceeds and it is not served with responses to the Interrogatories. The Interrogatories seek information material and necessary for the prosecution of this action, inter alia: The identity of witnesses concerning a number of topics (##1-2, 60, 64-65, 68-69, 73, 77, 85-86). This includes the identity of consultants, engineers etc. that Defendants communicated with concerning the floodings and Defendants failed remedial efforts. (#34) The facts supporting Defendants conclusory and boilerplate affirmative defenses (##3-20) Facts concerning water intrusions to the Premises (##29-30, 32, 82-83) The identity of relevant reports and surveys etc (##54-59, 63, 67, 70). Facts concerning any past or proposed remedial efforts by Defendants (##31, 33, 35-36, 52, , 75-76) Facts concerning the construction of Rego Park I, Rego Park II and the New Buildings, and how that affected underground waters (##50-51, 66, 72, 74) Insurance information (#42). Facts concerning the corporate status and existence of the Defendants, their ownership, and the Defendants relationship with each other (##21-24) Facts concerning Plaintiff s landlord-tenant relationship with Defendants (##25-27) The identity of the owners of the Rego Park properties at issue (#28, 49) Facts concerning the arson attacks and Americans With Disabilities Act violations, including agreements with the Attorney General and Defendants notice of ADA violations, and of other arson attacks or water intrusions (#37-41, 43-48, 53) Defendants Failure To Provide Witness Information 21. Pursuant to the PC Order, Defendants witness information was due on December 12, Defendants did not provide witness information by that deadline, or at any time v

8 thereafter. Defendants did not respond to the Interrogatories seeking the identity of witnesses, or provide any other type of witness list. 22. Plaintiff will be prejudiced if this case proceeds and it is not provided witness information from Defendants. Defendants Untimely And Deficient Responses & Objections To The Document Demands 23. As stated above, Defendants failed to timely respond to the Document Demands. They were originally due December 12, 2014 (see the PC Order), and although Defendants requested extensions of time, their initial request was not made until after the December 12 th deadline and Plaintiff made clear to Defendants that the extension was granted only to producing documents and that Defendants had waived their objections (other than privilege) by not timely responding. Nonetheless, Defendants asserted a number of objections in their February 27 th written Response To Document Demands. 24. Moreover, Defendants appear to have not produced documents responsive to a large number of Plaintiff s Document Demands. Plaintiff has incurred significant costs and fees relating to the hours that my office spent reviewing the over 11,000 pages of documents Defendants produced. 25. Based on that review, it appears that Defendants failed to produce documents concerning, inter alia, (i) the relationship between the various Defendants as owners and manager of Rego Park; (ii) communications with other tenants concerning flooding issues, the arson attacks and violations of the ADA; (iii) pre- and post-development surveys, drawings and designs concerning the properties as relevant to the flow of underground waters; and (iv) other tenants leases, inasmuch as they are relevant to Plaintiff s rights under its own lease and the calculation of its damages. That is merely a summary v

9 26. After performing a good-faith review of Defendants voluminous production, and with the exception of several reports from the Langan Engineering firm (which Plaintiff has also served with a subpoena) and a property condition report commissioned by the Bank of China, my office has concluded that Defendants failed to produce documents responsive to the following demands, all of which seek information material and necessary in the prosecution of this action 5 : Plaintiff s Document Demands 2 All environmental studies or reports concerning the Premises, Rego Park I, Rego Park II, Building or New Building, including without limitation any environmental compliance audits, environmental insurance investigations, and any studies of the subsurface or hydrogeological region underneath. 3 All reports to or from city, state or federal agencies concerning the generation, transport, storage, treatment or disposal of waste or sewage at or near the Premises, Rego Park I, Rego Park II, Building or New Building. 4 Copies of any federal, state or local permits, variances, government approvals, and the applications therefore, for any treatment, storage, recycling or disposal of any waste or sewage. 5 Studies or reports concerning the types, volume (per month or year) and sources of wastewater generated at the Premises, Rego Park I, Rego Park II, Building or New Building, and any related federal, state or local permits, variances, pending permit applications or approvals. 6 Studies, reports, or communications concerning storm-water run-off collection and disposal at the Premises, Rego Park I, Rego Park II, Building or New Building. 7 Studies, reports, or communications concerning any groundwater, wells, aquifers, underground creeks or streams, or other waters under or near the Premises, Rego Park I, Rego Park II, Building or New Building. 8 Studies, reports or communications concerning any dredging or filling of wetlands, bogs, swamps, marshes, rivers, creeks or other bodies of water (whether above or below ground level) in the construction of the Premises, Rego Park I, Rego Park II, Building or New Building. 9 Notices of violation issued by environmental or occupations safety and health agencies concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 5 I have not personally reviewed each of the over 11,000 pages, but I have personally reviewed several thousands of pages. This list is based on my personal review, and the good faith effort that my colleagues (including another associate and a paralegal) performed to review Defendants voluminous production for issues. To the extent that Defendants disagree and aver that they produced documents responsive to these demands, Plaintiff requests that Defendants produce a table indicating which pages of their production are responsive to each demand, or state that they have no such documents v

10 Plaintiff s Document Demands 10 All soil and/or boring reports, studies, designs, or calculations, including without limitation water table and boring results, concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 11 All pre-development and post-development as built topographic surveys concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 12 All preliminary design development drawings concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 13 All existing condition storm water studies concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 14 All architectural design packages concerning the Premises, Rego Park I, Rego Park II, Building or New Building, including without limitation all civil engineer, structural engineer, mechanical engineer or other engineer s plans, studies and drawings. 15 All construction soil test results concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 16 All as built drawings concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 17 All documents concerning post-construction changes to the drainage structure or systems of, or utilized by, the Premises, Rego Park I, Rego Park II, Building or New Building. 18 All geotechnical reports, studies, designs, or calculations concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 19 All surface or subsurface surveying reports, studies, designs, or calculations concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 20 All hydrology reports, studies, designs, or calculations concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 21 All documents prepared, drafted, written or submitted by any civil or geotechnical engineer concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 22 All documents prepared, drafted, written or submitted by any hydrologist concerning the Premises, Rego Park I, Rego Park II, Building or New Building. 23 Documents exchanged in any litigation to which you are or were a party and in which there was a claim concerning a nuisance, or arson incident, at the Premises, Rego Park I, Rego Park II, Building or New Building. 24 A list of each of Alexanders, ARSC s, ARPC s, ARP II s and ARP s shareholders as of the date of any meeting of their shareholders v

11 Plaintiff s Document Demands 25 With respect to Rego II, a list of the full name set forth in alphabetical order and last known mailing address of each of its managers and members, together with the contribution and the share of profits and losses of each member or information from which such share information can be readily derived. 26 Defendants federal and state income tax returns. 27 Defendants accountings/statements regarding profit/loss. 28 The Vornado-Alexanders Management Contract, and any amendment thereto. 30 Documents and communications concerning Alexanders conveyance to ARP of title to Rego Park I, including without limitation any closing binder, and conveyance of the Building and the Lease to ARP. 31 Documents and communications concerning ARP s conveyance to ARPC of title to Rego Park I, including without limitation any closing binder, and conveyance of the Building and the Lease to ARP. 32 Documents and communications concerning ARPC s conveyance to ARSC of title to Rego Park I, including without limitation any closing binder, and conveyance of the Building and the Lease to ARP. 33 Documents and communications concerning ARP II s conveyance to Rego II of title to Rego Park II and the New Buildings, including without limitation any closing binder. 34 Your leases with every other tenant of Rego Park I, Rego Park II, the Building or New Buildings. 35 All documents concerning, and communications with, any other tenant of the Building, New Building, Rego Park I or Rego Park II concerning a claim of: (1) a nuisance or water intrusion, (2) failure to maintain a first-class shopping center, (3) ADA Obligations or accessibility, or (4) the Arson Attacks. This request includes documents and communications concerning any offers to compromise or settlement of the claim. 39 Blue-prints and other structural or mechanical schematics, diagrams or drawings for the Building or Premises. 43 All documents and communications concerning the Arson Attacks. 45 All communications with the Civil Rights Bureau of the New York Attorney General s Office concerning the parking garage in Rego Park I and compliance with the Americans with Disabilities Act. 47 Copies of any complaints from visitors, guests, employees, or other licensees of Rego Park I concerning ADA access. 48 All communications with the New York City Department of Environmental Protection, the Department of Sanitation, the Department of Buildings, or any other governmental agency, v

12 Plaintiff s Document Demands concerning the New Building s discharges into the public sewer system in the vicinity of the Premises. 49 Any insurance agreement under which a person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action against Defendants, or to indemnify or reimburse Defendants for payments made to satisfy the judgment. 50 Copies of all notices or claims made on the insurance agreements referenced in the preceding request. 27. Further, Defendants raised boilerplate objections to a number of requests, but have not specified whether Defendants are withholding responsive documents based on such objections, or are objecting but nonetheless producing. Plaintiff has asked Defendants to clarify whether Defendants are withholding responsive documents based on objections, objecting but nonetheless producing, or not producing because there are no responsive documents to a given request. Defendants have provided no such clarification. Plaintiff s Good Faith Efforts To Meet & Confer 28. Defendants are in violation of three Court orders. Nonetheless, Plaintiff has made a good faith effort to meet and confer with Defendants to resolve Defendants discovery defaults. Despite these efforts, further judicial intervention is now required. 29. I discussed Defendants discovery defaults with Defendants counsel at the January 29 and June 11, 2015 Court conferences. Plaintiff s agreed to Defendants requests for extensions of time to respond (but not object) based on counsel s representations concerning personal issues and issues with obtaining information from their clients. Plaintiff exchanged various letters with Defendants counsel identifying the issues. In addition to the letters identified above, true and correct copies of the other relevant correspondence exchanged between counsel is annexed hereto as Exhibit v

13 30. I addressed Defendants refusal to respond to Plaintiff s Interrogatories in four separate letters, dated February 13, 2015 ( Defendants have not responded to Plaintiff s November 7, 2014 interrogatories ); March 4, 2014 ( Defendants still have not responded to Plaintiff s interrogatories ); July 13, 2015 ( your interrogatory responses are also due. We have not yet received them. ); and July 16, 2015 ( Defendants have willfully failed to comply with three (3) Court orders to provide interrogatory responses. (emphasis in original)). 31. Similarly, I addressed issues with Defendants document production in five separate letters, dated February 13, 2015 ( Defendants still have not responded to Plaintiff s November 7, 2014 interrogatories, document and information demands, and site demands ); March 4, 2015 ( Defendants still have not responded to Plaintiffs interrogatories, or completed its document production. ); March 5, 2015 ( This letter is being sent to address Defendants failure to produce documents responsive to Plaintiff s document demands ); March 9, 2015 ( this letter highlights certain of Plaintiff s document demands that have not been complied with by Defendants ); and July 16, 2015 ( Defendants have failed to produce a large number of categories of documents that were requested. ). 32. I also addressed Defendants failure to provide insurance information and exchange witness information in three separate letters, dated February 13, 2015 ( Defendants still have not provided any insurance information, exchanged any witness information, statements or photographs ); March 4, 2015 ( Defendants still have not provided Defendant s insurance information, witness information, statements or photographs. ); and July 16, 2015 ( Paragraph 1 of the Preliminary Conference Order ordered Defendants to provide their insurance coverage on or before 11/7/14. Defendants failed to provide the information within that deadline Defendants still have not provided a list of witnesses, or statements of Plaintiff, v

14 or an affirmation that there are none. ). Certain insurance coverage may have been included in Defendants voluminous document production, but it was not separately identified. E.g., Defendants produced a commercial general liability policy naming Alexanders, Inc. as the insured for the period July 31, 2011 July 31, (RE ). It should have been separately provided, rather than buried in thousands of pages of other documents. 33. Defendants, on the other hand, have not acted in good faith. Defendants have ignored three orders of this Court: the PC Order, the 2 nd Order and the 3 rd Order. As reflected in the correspondence, Defendants have transparently attempted to divert attention away from their own defaults by raising purported issues with Plaintiff s disclosures, and have also failed to meaningfully address the legal points raised in Plaintiff s letters. Defendants have untimely asked for extensions and then ignored well-settled law concerning their waiver of objections. Defendants represented that they had prepared responses to the Interrogatories and implied that they would be served soon. 34. To the extent that Defendants failure to comply with their discovery obligations was due to personal issues of counsel, or the departure of a knowledgeable Vornado employee, Plaintiff notes that it granted extensions of time and professional courtesies, and that, upon information and belief, (a) there are multiple other lawyers at Defendants counsel s firm, and (b) Vornado is a public company (NYSE ticker symbol VNO), and is one of the largest landlords in New York City. 35. Lastly, in addition to a monetary sanction imposed against Defendants, Plaintiff seeks its costs and fees (including attorney s fees) relating to this motion and the discovery issues raised herein. Upon the Court s request, Plaintiff will provide proof of their relevant costs and fees, including attorney s fees v

15 WHEREFORE Plaintiff s motion should be granted. Dated: July 31, 2015 New York, New York /s/ Jordan Greenberger JORDAN GREENBERGER v