FILED: NEW YORK COUNTY CLERK 07/16/ :41 PM INDEX NO /2016 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/16/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x â â â â â G.O.L.A. INC. d/b/a WOODWARD GALLERY, JOHN WOODWARD and KRISTINE WOODWARD, Index No /2016 -against- Plaintiffs, AFFIRMATION NIRA LEVINE and NLR UNLIMITED, INC., Defendants x â â â â STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: MICHAEL ROBERTS, an attorney admitted to practice in the Courts of this State, does hereby affirm under the penalties of perjury that the following statements are true, except those made on information and belief, and as to those, he believes them to be true: 1. I am counsel for plaintiffs in the above-captioned action. I make this Affirmation in support of our motion for a protective order and to strike Requests for Production in their entirety. 2. The Complaintlin this action asserts only one cause of action for libel per se. The Amended Answer 2 in this action asserts four Affirmative Defenses and six Counterclaims. 3. In the instant case, defendants make 13 Requests for Production3, many with a large number of subparts. Significantly, none of 13 Requests for Production 1 The Complaint is attached hereto as Exhibit A. 2 The Amended Answer is attached hereto as Exhibit B. Defendants' Requests for Production are attached hereto as Exhibit C. 1 1 of 6

2 specifies a date range. Since the parties' relationship comprised some 15 years, most of these requests are well beyond the Statute of Limitations. Such lack of specificity is a hallmark of overbroad discoveryrequests meant to abuse and harass and not to obtain relevant information. 4. The request for production of "Any and all information and documents... concerning the acquisition and/or sale" of artworks specified (request #1) contains 70 subparts, as do requests #2, #3, #4 and #5. In addition, defendants demand discovery of "Any and all information and documents including correspondence" between the parties "and/or between Plaintiffs and third-parties concerning Defendants and/or" the 70 works of art specified. 5. Requests #6, #7, #8, #9, #10 and #11 seek "any and all information and documents" pertaining to allegations in paragraphs 9, 10, 11, 12 and 13 of the complaint and to damages without any specification or limitation as to what documents are sought. Counsel might as well have requested, "Any and all information and documents pertaining to the complaint." 6. Similarly, request #12 asks for "Any and all correspondence, including s, between the parties tothis action", once again without any limitation as to time. 7. Also disturbing is request #13 which seeks "All non-privileged portions of the legal file, including but not limited to pleadings, discovery responses, document production and transcripts, in the matter Hillel Philip and Jim Kempner Fine Art, Inc. v. G.O.LA. Inc. d/b/a Woodward Gallery, John Woodward and Kristine Woodward, Supreme Court, New York County Index No /2016." That case involves a completely different work of art from the 70 works of art specified in request #1, and defendants are not a party to that action.accordingly, such material is completely irrelevant to the instant case. 8. CPLR 3103 (a) provides for a protective order to prevent just this sort of abuse. CPLR 3103 (a)states: 2 2 of 6

3 The court may at any time on its own initiative or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. 9. "Carte blanche" demands, such as those at issue here, which specify no date ranges and request voluminous irrelevant material, will not be honored. Scalone v. Philips Memorial Hosp. Center, 184 A.D.2d 65, 70 Dept. 1992). "Those demands which are unduly burdensome or lack specificity... or seek irrelevant information or are otherwise improper must be denied. [citation omitted].'" Id.; see New York Yankees v. Adler, 159 A.D.2d 426, 427 (1" Dept. 1990) (where notice to produce contained 39 separate requests, such notice "was overly broad and of a blunderbuss nature... the court was correct in striking it..."); Montalvo v. CVS Pharm. Inc., 102 A.D.3d 842, 843 Dept. 2013) (where discovery demands sought irrelevant information and were "overbroad and burdensome" motion for protective order was providently granted); see also Gilman & Ciocia, Inc. v. Walsh, 45 A.D.3d 531, 531 Dept. 2007)(protective order granted where discovery requests were overbroad and burdensome). 10. Where, as here, discovery requests areoverbroad and extremely burdensome, seek patently irrelevant information and are calculated to abuse and harass the opposing party, the courts have refused to prune such requests and have stricken them in their entirety. Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469, 470 Dept. 2004); (where plaintiffs' discovery requests were "palpably improper,in that they were overbroad, burdensome, failed to specify with reasonable particularity many of the documents demanded, or sought irrelevant information [citations omitted]... striking theadditional demands was the appropriate remedy rather than pruning them [citations omitted]"; see Latture v. Smith, 304 A.D.2d 534, 536 Dept. 2003)(where "permitting the disclosure sought would be tantamount tolicensing a fishing expedition [citation 3 3 of 6

4 omitted]," court denied, rather than pruned, discovery requests); Mijatovic v. Noonan, 172 A.D.2d 806, 807 Dept. 1991)("MOreover, discovery demands such as these, which contain all-inclusive demands for documents of every kind for information substantially in excess of that to which the requesting party is entitled, are generally stricken in their entity [citations omitted]"); Lopez v. Huntington Autohaus, Ltd., 150 A.D.2d351, 352 Dept. 1989)("The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one [citation omitted]; accordingly, the interrogatories in question are stri[c]ken"). 11. Therefore, since Requests for Production are overbroad, extremely burdensome, seek irrelevant information and are patently designed to abuse and harass plaintiffs, they are "palpably improper" and should be stricken in their entirety. THE PLAINTIFF AND NLR UNLIMITED, INC. IS PROHIBITED FROM FILING A COUNTERCLAIM BY THE THEORY OF COLLATERAL ESTOPPEL 12. In addition, plaintiffs' requests for production are precluded by the doctrine of collateral estoppel. The instant action began as a Petition for pre-action discovery pursuant to CPLR Defendants opposed the action, asserting that pursuant to BCL 1312(a), plaintiff NLR Unlimited, Inc. lacked capacity to sue because it was a foreign corporation regularly conducting business in this state which had failed to register to do business in thisstate and to pay all applicable fees, taxes and penalties. By Order4 dated January 1, 2017, the court, inter alia, ruled that NLR Unlimited, Inc. had 90 days to comply with BCL This plaintiff NLR Unlimited, Inc. wholly failed to do. Consequently, it was precluded from getting the discovery it had requested and NLR Unlimited, Inc.'s claims were dismissed. 13. Subsequently, defendants in the Petition action filed a one-count libel per se action against plaintiffs in the Petition action.significantly, the parties to this action were 4 The court's order is attached hereto as Exhibit D. 4 4 of 6

5 identical to the parties in the Petition action, and the discovery requests are identical to those in the Petition action. Similarly,pursuant to the court's Order, NLR Unlimited, Inc. lacks capacity to sue and cannot assert counterclaims here. 14. It is established that "[c]ollateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action orproceeding and decided against that party or those in privity (Ryan v New York Tel. Co.. 62 NY2d 494, 500 [1984]). The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result (D'Arata v New York Cent. Mut. Fire Ins. Co.. 76 NY2d [1990])."Buechel v. Bain, 97 N.Y.2d 295, 303 (2001), cert. denied 535 U.S (2002); seeji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 23 A.D.3d 1165, A.D.3d 328, 329 (1st (1st Dept. 2014); Abrahams v. Commonwealth Land Tit. Ins. Co., 120 Dept. 2014); Academic Health Professionals Ins. Assn. v. Lester, Dept. 2006). 15. "Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling (see, Gilberg v Barbieri, 53 NY2d 285, 291[1981])." Buechel v. Bain, supra, 97 N.Y.2d at ; see Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, supra, 120 A.D.3d at "The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party [citation omitted). The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination." Buechel v. Bain, supra, 97 N.Y.2d at 304; seeabrahams v. Commonwealth Land Tit. Ins. Co., supra, 120 A.D.3d at In the instant case, NLR and the Woodwards are the identical parties in the Petition action, the discovery sought by NLR is the same, and the counterclaims asserted 5 5 of 6

6 here arise from the claims dismissed in the Petition action. Accordingly, there is privity and identity of issue. In addition, NLR had a full and fair opportunity to litigate the issue of its capacity to sue in the Petition action. NLR's counsel submitted an Affirmation in Opposition in the Petition action, which addressed NLR's capacity to sue and to seek discovery. Accordingly, since the parties are the same, the issues are the same, and NLR had a full and fair opportunity to litigate the issues in the Petition action, NLR is precluded from seeking the same discovery and from asserting the counterclaims of NLR UNLIMITED, INC. in this action. 18. WHEREFORE, for the reasons stated in this Affirmation, this Court should grant plaintiffs a protective order and strike Requests for Production and their counterclaims in their entirety. Dated: New York, New York July 16, 2018 Michael Roberts, Esq. ROBERTS & ROBERTS Attorney for Plaintiff 401 Broadway, Suite 1902 New York, NY of 6