FILED: NEW YORK COUNTY CLERK 07/17/ :57 PM INDEX NO /2012

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1 FLED : NEW YORK COUNTY CLERK 04:23 PM SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCAL DVSON CONTNENTAL NDUSTRES GROUP, NC., Plaintiff Hon. Andrea Masley, J.S.C. -against- ndex No: /2012 NOTCE OF ENTRY HAKAN USTUNTAS; PLASMAR PLASTK VE KMYA SAN. TC. A.S., a/lda Plasmar Plastic, nc.; Defendants, PLEASE TAKE NOTCE that annexed hereto is a true copy of a Supplemental Order (Motion Sequence No. 7), signed by the Honorable Andrea Masley, J.S.C. on June 13, 2018 and entered on June 18, Dated: New York, New York June 26, 2018 GUNAY LAW, P.C. Attorney for Defendants By e Gunay 845 Third Avenue, 6th Floor New York, New York (646) of 5

2 FLED: NEW YORK COUNTY CLERK 04:23 PM Supplemental Order (Motion Sequence No. 7) 2 of 5

3 FLED: NEW YORK COUNTY CLERK 04:23 PM FLED: NEW EfppNTrhCLERK 06 W/2011PP09f0'42P1.. NYSCEF DOC. NO. 357 RECEVED SUPREVE COURT OF THE STATE OF NEW YORK NYSCEF: 06/18/2018., COUNTY OF NEW YORK: COMMERCAL DVSON X â CONTNENTAL NDUSTRES GROUP, NG., ndex No /2012 Mot. Seq. No. 7 Plaintiff, - against - HAKAN USTUNTAS; PLASMAR PLASTlK VE KMYA SAN. TC. A.S., a/k/a Plasmar Plastic, nc.; Defendants , X Masley, J.: n Motion Sequence Number 007, defendants Hakan Ustuntas, Plasmar Plastik VE Kimya San. Tic. A.S. (Plasmar) a.k.a. PLASMAR Plastic, nc. and Marchem nternational Trading LLP move pursuant to CPLR 3103, 3126 and 3124 to strike the complaint, for attorneys' fees. Alternatively, they move for discovery. The court reviewed each discovery request with the parties and resolved it on the record on March 12, n addition, on March 12, 2018, the court heard argument on plaintiffs alleged spoliation of a computer server. After plaintiff printed out certain s from the server and gave to counsel to evaluate and determine whether to bring this case, when counsel requested the original s (for a prior proceeding in federal court) plaintiff informed its counsel "the server is dead. can't get the s." Tr. 9: Plaintiffs counsel Mr. Conway informed the court that "there is no technology person to put (in] an company..." affidavit. This is a small Tr. 11:18-23, Mr. Conway objected to the relevance of the server and stated that "the only thing of relevance that wasn't produced was a dead server, which apparently was thrown away, which had s on it." Tr. 25: Plaintiff was directed to provide an affidavit from a person with knowledge as to the circumstances of the death of the server and its disposition.' On April 23, 2018, plaintiff submitted the affidavit of Pinar Evyapan,2 the nformation Technology Manager for ClG which contradicts everything the court was told about the server on the record on March 12, "CG decided to switch to a new cloud based server." 5. "The server was not in fact discarded, but was instead placed in a storage closet in Further to the best of my knowledge, the server has not been touch since that time and it available for inspection." 8. "The information was not lost due to its replacement - it was backed up and we still maintain those backup. backup-today." 9. Evyapan blames translation issues for this 180 degree change: â 'The requested affidavit was not provided to the court until a discovery conference with Court Attorney Anna Mikaleva today June 13, nher May 11, 2018 affirmation, attorney Petek Gunay informs the court that Evyapan is the wife of Mr. Karabey, plaintiff's sole owner. 1 of 2 3 of 5

4 FLED: NEW YORK COUNTY CLERK 04:23 PM [FLED: NEW YORK COUNTY CLERK 062MBV201Bb309!042P]. NYSCEF DOC. NO. 357 RECEVED NYSCEF: 06/18/2018 "These requests typically came to me third-hand and my response were given to counsel third-hand. As a result, misunderstandings have occurred." 3. This is not an "misunderstanding," but an outrage. "Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence...[w]hen critical documents go missing, judges-and litigants alike descend into a world of ad hocery and half measures - and our civil justice system suffers." (United Med. Supply Co., nc. v US, 77 Fed C 257, 258 [US Court of Fed. Claims 2007].) A party seeking spoliation sanctions must show that: (1) "the party having control over the evidence possess an obligation to preserve it at the time of its destruction;" (2) "the evidence was destroyed with a culpable state of mind;" and (3) "the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense." (Pegasus Aviation, nc. v Varig Logistica S.A., 26 NY3d 543, 547 [2015].) A party has a duty to preserve evidence when it has notice of pending litigation. (See Adrian v Good Neighbor Apartment Assocs, 277 AD2d 146 [1st Dept 2000].) ORDERED that plaintiff shall make the server available for inspection within 10 days or any date thereafter that defendants select; and it is further ORDERED, that plaintiff shall review the backed-up data and respond to all of requests within.30 days; and it is further ORDERED, that request for attorneys' fees and costs is granted and defendants shall submit an affirmation of services and invoice for costs incurred with documentary support for all of the expenses incurred as a result of plaintiff's actions regarding the alleged dead server; and it is further ORDERED, that the counsel shall appear on July 13, 2018 at 11 am for argument to address the ethical implications and penalties, if any, arising from this revelation. This date cannot be adjourned without a so ordered stipulation. DATED: NT : (0 (g Andrea Masley, J.S.C. MON. ANDREA MASLEY 2 of 2 4 of 5

5 NDEX NO FLED : NEW YORK COUNTY CLERK 04:23 / PM SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCAL DVSON CONTNENTAL NDUSTRES GROUP, NC., Plaintiff -against- HAKAN USTUNTAS; PLASMAR PLASTK VE ndex No: /2012 Hon. Andrea Masley, J.S.C. KMYA SAN. TC. A.S., a/k/a Plasmar Plastic, nc.; Defendants, NOTCE OF ENTRY GUNAY LAW, P.C. 845 Third Avenue, Sixth Floor New York, New York Telephone: (646) Attorney for Defendants To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of these papers or the contentions therein are not frivolous as defined in subsection (c) of section of the Rules of the Chief Administrator (22 NYCRR). Service of a copy of the within is hereby admitted Dated:, 2018 Attorney for 5 of 5