that the Honorable Court grant Defendants leave to file an Order to Show Cause seeking: (1) a Defendants' Court dated April 18, 2018 (the "April

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1 WARSHAW BURSTElN, LLP 555 Fifth Avenue New York, NY WARSHAW Telephone: Pankaj Partner Malik April 24, 2018 Hon. Anthony L. Parga Supreme Court of the State of New York 100 Supreme Court Drive Mineola, NY VIA NYSCEF Re: Index No /2016 San jana Jon Abraham v. Prabhu Paramatma et al. To the Honorable Anthony L. Parga: (" Our firm represents Defendants Prabhu Paramatma ("Mr. Paramatma"), Werner J. Wilhelm (" Wicker" Wicker ("Mr. Wicker"), Werner J. Wicker, Inc. (the "Inc."), and Wicker, LLC (the "LLC", and, "Defendants" together with Mr. Paramatma, Mr. Wicker, and the Inc., "Defendants"). We respectfully request that the Honorable Court grant Defendants leave to file an Order to Show Cause seeking: (1) a protective order pursuant to CPLR , staying the deposition and any other appearance by Mr. Wicker until his health permits travel to New York, or alternatively, permitting Mr. Wicker to appear by videoconference, and staying all discovery pending the determination of the Order to Show Cause; (2) a protective order pursuant to CPLR , limiting the scope of non-party subpoenas already served, and barring Plaintiff from serving further subpoenas without leave of court; and (3) pursuant to CPLR , re-argument of that portion of the Order of the Honorable Order" Court dated April 18, 2018 (the "April NYSCEF Doc. No. 160) that dismissed counterclaims for defamation, malicious prosecution and fraud/deceit/misrepresentation. POINT I: The Court Should Hear Motion for a Protective Order Because Travel to New York Will Endanger Mr. Wicker's Health The Court should hear Motion for a protective order because Mr. Wicker cannot travel to New York without endangering his health. CPLR provides that the court may issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure

2 device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other courts." prejudice to any person or the New York Courts have issued protective orders relieving a party of the need to travel for depositions and permitting depositions by alternative means where the party shows that travel would endanger the party's health or otherwise cause hardship. Hoffman v. Kraus, 260 A.D.2d 435, 437 (2d Dep't 1999); Verini v. Bochetto, 49 A.D.2d 752 (2d Dep't 1975); Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237 (1st Dep't 2007); Rogovin v. Rogovin, 3 A.D.3d 352 (1st Dep't 2004). Here, Mr. Wicker's doctor Jutta Mersch-Müller, a Medical Specialist for Internal Medicin / Clinical Geriatrics, has prepared a letter that confirms that Mr. Wicker is in severe pain from a severe degenerative spinal disease that has immobilized Mr. Wicker over the last few months, deeming plane" him "unable to travel by and recommending that "long-distance flights should be reduced." avoided until pain levels are A copy of the letter is attached as Ex. A (emphasis added).1 Further, Mr. Wicker is 82 years old, speaks a language other than English, and resides in Switzerland. See copy of passport of Werner J. W. Wicker previously submitted (NYSCEF Doc. No. 134). Therefore, Defendants have good cause for seeking to stay Mr. Wicker's appearance or obtain leave for Mr. Wicker to appear by videoconference, and the Court should grant Defendants leave to move for a protective order. POINT II: The Court Should Hear Motion for a Protective Order Limiting the Scope of Nonparty Subpoenas Already Served and Barring Plaintiff from Issuing More Subpoenas Without Leave of Court The Court should also permit Defendants to seek a protective order limiting the scope of nonparty subpoenas already served and barring Plaintiff from issuing more subpoenas without leave of court; a protective order is necessary because Plaintiff has issued numerous subpoenas on nonparties that seek irrelevant information. Our office has now been retained by three of the nonparty witnesses for whom Plaintiff issued subpoenas: Abdul Saeed Sabooni, Fatameh Sabooni, and Daniel T. Weglarz. New York Courts have repeatedly held that the party seeking disclosure and opposing a protective order is required "to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of claims." information bearing on the See Mangialino v. White Haven Mem'I Park, 132 A.D.2d 970 (4th Dep't 1987) (citing Herbst by Herbst v. Bruhn, 106 A.D.2d 546 (2d Dep't 1984)). New York courts have limited the scope of subpoenas that seek irrelevant information. See In re Scuderi, 1996 WL (Sur. Ct. Nassau Co. 1996); Helm v. Lentine, 2007 WL (Sup. Ct. Richmond Co. 2007). Here, Plaintiff has already issued at least six subpoenas against nonparties in in this action, including one subpoena against Daniel T. Weglarz (who retained our office), two subpoenas against Fatameh Sabooni (retained our office), two subpoenas against Abdul Saeed Sabooni I Defendants are working to obtain a notarized affidavit from Dr. Mersch- Müller.

3 (retained our office), one subpoena against Louis Beria, and one subpoena against Amit Beria. Copies of the Subpoenas were previously submitted (NYSCEF Doc. No. 150) as an attachment to the Affirmation in Opposition to Plaintiff's Motion to Strike. For each of these subpoenas, Plaintiff's description of the reason the subpoena is necessary is the vague and conclusory statement that "[t]his disclosure and deposition testimony is necessary because the information subpoenaed hereto is relevant to Plaintiff's prosecution of her claims and it is in the exclusive you." control and possession of See 14 Worse, each of the nonparty subpoenas seek information from that is irrelevant and not reasonably calculated to lead to the discovery of information bearing on Plaintiff's claim for sexual assault, including information concerning real estate transactions relating to the property located at 299 Oakley Court, Mill Neck, New York (the "Mill Property" Neck Property") and real estate transactions relating to the any property purchased by Mr. Wicker in Atlanta, Georgia in Plaintiff is exploiting the case to obtain unrelated information about the business dealings of Mr. Wicker. We intend to submit a witness affidavit in support of our Order to Show Cause that outlines the motives of Plaintiff in bringing this suit and demonstrates that it is merely a veiled attempt at collecting certain commissions Plaintiff mistakenly believes she is entitled to from said real estate transactions. The sexual assault claim is, however, what she seeks damages for in her suit. Therefore, the Court should grant Defendants leave to seek a protective order limiting the scope of the subpoenas already served and barring Plaintiff from issuing further subpoenas without a court order. POINT III: The Court Should Hear Motion for Re-argument of the Dismissal of Counterclaims for Defamation, Malicious Prosecution, and Deceit The Court should hear re-argument of that portion of the April Order that dismissed counterclaims. It is a basic principle that a movant on re-argument must show that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision. Bolos v. Staten Island Hosp.,. 217 A.D.2d 643 (2d Dep't 1995). Generally, on a motion to dismiss, the party whose pleading is challenged is entitle to every possible favorable inference and "the criterion is whether the proponent of the pleading has a one." cause of action, not whether he has stated Leon v. Martinez, 84 N.Y.2d 83 (1994) (internal citations omitted). Also, "[i]n assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to complaint." remedy any defects in the 14 at 88. Applying these standards and the specific standards discussed below, the Court should grant re-argument because Defendants pleaded the elements of each counterclaim. A. The Court Should Hear Re-Argument Because Defendants Stated a Claim for Defamation The Court should hear re-argument because Defendants did plead the elements of a claim for defamation. Respecting a claim for defamation, CPLR 3016(b) provides: "the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be generally." stated In Epifani v. Johnson, 65 A.D.3d 224, 242 (2d Dep't 2009), the Second Department held that "the complaint must set forth the particular words allegedly constituting

4 defamation, and it must also allege the time and place when, and manner in which the false statement was made, and specify to whom it was made. Here, Verified Answer does plead the words constituting defamation with particularity by identifying the statements in the Complaint that allege sexual misconduct as defamatory. S_ee Verified Answer previously submitted (NYSCEF Doc. No. 62); see also Complaint previously submitted (NYSCEF Doc. No. 2). Similarly, Verified Answer identifies the time, place, manner, and audience for the defamatory statements by identifying the filing of the Complaint as defamatory. ld. Therefore, Defendants stated a claim for defamation. Should the Court grant leave to file the Order to Show Cause, the affidavit that we will submit in support will demonstrate that Plaintiff's sole intent in bringing this suit was to harm reputations and collect damages Plaintiff is simply not entitled to collect. B. The Court Should Hear Re-Argument Because Defendants Stated a Claim for Malicious Prosecution The Court should hear re-argument because Defendants did plead the elements of a claim for malicious prosecution. The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice. Colon v. City of New York, 60 N.Y.2d 78 (1983). The lack of probable cause allows an inference that malice exists. Mesiti v. Wegman, 307 A.D.2d 339, 341 (2d Dep't 2003) (internal citations omitted). Here, Defendants did plead the first element, that a proceeding was initiated, by referring to Plaintiff's previous effort to serve Plaintiff. See Verified Answer. Defendants supplemented the information concerning this element, and specified the facts regarding the second element of termination in plaintiff's favor, by alleging in the Affirmation in Opposition to Plaintiff's Motion (" to Dismiss Counterclaims Opp.") that "[t]he original complaint was filed on February 2, 2016, however, due to improper service a motion to enlarge was made. That motion was granted in favor of Plaintiff and a new amended complaint was made thereafter"; applying Martinez, the Court should have considered these facts. See Opp. previously submitted (NYSCEF Doc. No. 115). Defendants pleaded the third element, lack of probable cause, and the fourth element, malice, by alleging in their Verified Answer, "Plaintiff knows the claims lies..." alleged are false and continues to spew See Verified Answer. Applying Mesiti, the lack of probable cause allows for an inference of malice. Therefore, Defendants stated a claim for malicious prosecution. C. The Court Should Hear Re-Argument Because Defendants Stated a Claim for Fraud/Deceit/Misrepresentation The Court should hear re-argument because Defendants did plead the elements of a claim for fraud/deceit/misrepresentation. CPLR 3016(b) provides "[w]here a cause of action is based upon misrepresentation, fraud... the circumstances constituting the wrong shall be stated in detail." "The elements of a cause of action to recover damages for fraud require a material { { }

5 misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the damages.' plaintiff, and Vision Accomplished, Inc. v. Lowe Properties, LLC, 131 A.D (2d Dep't 2015). Here, the Verified Answer alleges the first three elements, material misrepresentation, knowledge of its falsity, and intent to induce reliance by asserting that "At the time when Plaintiff and Defendant allegedly met, Plaintiff asked for Defendants help... in order to extort wealthy Defendants." See Verified Answer. Opp. alleging the fourth element, justifiable reliance, by alleging "Defendant entered into a fiduciary relationship with Plaintiff whereby he allowed her to stay in the Mill Neck residence with her mother. Thereafter, Plaintiff and Defendant Paramatma travelled together for years and Defendant helped Plaintiff"; applying Martinez, the Court should have considered these assertions. S_ee Opp. The Verified Answer alleges the fifth element, damages, by stating: "Plaintiff's misrepresentations to the Court and other third persons are defamatory and can reputation," severely tarnish and Opp. expands on this claim by alleging that Plaintiff "filed two separate complaints as a retaliatory measure. This led to Defendants suffering both economically and physically." See Verified Answer; Opp. Therefore, Defendants stated a claim for fraud/deceit/misrepresentation. Request to Waive 22 NYCRR Requirement Should the Court grant Defendants leave to file the Order to Show Cause, Defendants request that the Court waive the requirement of 22 NYCRR New York courts have waived the requirement of 22 NYCRR where the effort to resolve the action without motion practice would be futile. See In re Cassini, 41 Misc. 3d 1207(A), 977 N.Y.S.2d 665 (Sur. Ct. Nassau Co. 2013). Here, Defendants cannot resolve the discovery issues without seeking leave of Court to pursue motion practice because the April Order sets a deadline of June 1, 2018 for completion of depositions, but as discussed above, travel during the period between now and June 1, 2018 would endanger Mr. Wicker's health. See Ex. A. ( )

6 CONCLUSION Based on the above, Defendants respectfully request that the Honorable Court grant Defendants leave to file an Order to Show Cause seeking: (1) a protective order staying the deposition and any other appearance by Mr. Wicker until Mr. Wicker's health permits travel to New York, or alternatively, permitting Mr. Wicker to appear by videoconference, and staying all discovery pending the determination of the Order to Show Cause; (2) a protective order limiting the scope of non-party subpoenas already served, and barring Plaintiff from serving further subpoenas without leave of court; and (3) re-argument of that portion of the April Order that dismissed counterclaims. s ectfully, Pankaj Malik cc: Derek Smith Law Group, PLLC Attorneys for Plaintiff One Penn Plaza, Suite 4905 New York, NY 10119