FILED: ROCKLAND COUNTY CLERK 05/14/ :19 PM INDEX NO /2017 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 05/14/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND x Index No /2017 DWANDA WOODS Hon. Rolf M. Thorsen AJSC ROBERT WOODS DEREK DAVIS Plaintiffs(s), PLAINTIFFS' REPLY -Against- FINEST HOME DESIGNS, LLC JOSEPH PETERS FLORENCE PETERS Defendant(s) X PLAINTIFFS REPLY IN FURTHER SUPPORT OF PLAINTIFFS' MOTION TO COMPEL OR IN THE ALTERNATIVE DISMISS DEFENDANTS ANSWER AND COUNTERCLAIMS FOR FAILURE TO COMPLY WITH COURT ORDER Derek Davis, an atrney at law the State New York affirms under penalty perjury pursuant CPLR Section 2106 as follows: Plaintiffs respectfully submit this reply in further support their Motion Compel or in the alternative dismiss answer counterclaims for failure comply discovery with the Court's Order, dated May 1, 2018 (the "Motion Compel" Compel") in reply Memorum In Opposition plaintiffs' Motion. As grounds therefor Plaintiffs represent as follows: 1 9

2 1. Counsel Allan R. Freedman argues in his Memorum In Opposition dated, May that reliance on Pimental v. the City o f New York the "other cases cited Plaintiffs, dealt with a fact pattern that involved a specific order, 'when discovery is wilfully disobeyed.' " In fact, the hisry the unwillingness comply with CPLR disclosure is evidence a pattern behavior very similar that described in the case cited Plaintiffs in Zletz v. Wetanson 67 NY. 2d 711. In Zletz, the plaintiffs their counsel "through delays other strategies, engaged in a course conduct designed yield one-sided disclosure in plaintiff's favor, culminating in plaintiff's disregard an order compelling plaintiff answer one the defendant's interrogaries. 2. In the current circumstances, in the response Interrogaries, filed with the Court on August 12, 2017, claimed then "that the documents requested [ Plaintiffs] were in a "briefease" on the job site. 3. In the same response Interrogaries filed on August 12, 2017, provided a partial bank statement JP Morgan Chase Bank (one bank accounts); a limited number rom receipts with no description or detail the items purchased; a copy the Certificate Formation Finest Home Designs LLC, showing Florence Peters Jordon Peters as Member/Managers limited 2 2 9

3 liability company. Further, provided only a partial tax return their 2016 Federal Tax Return for the Defendant, Finest Home Designs LLC has failed produce any additional disclosure income taxes, income or expenses limited liability company, including those Joseph Peters or Florence Peters, or for that matter Jordon Peters, individually. 4. It was not until December 8, 2017 filing with the Court, which was prompted the Court at a Status hearing on September 15, 2017, that Plaintiffs received a copy limited liability operating agreement, which evidences Defendant, Joseph Peters "100%" "100 ownership the limited liability company, Finest Home Designs LLC. It further evidences Florence R. Peters Jordon J. Peters as members. Yet at as the date here, refuse disclose any distributions, income expenses relating (members) the limited liability company its owner as described in such operating agreement, or any the limited liability company's activities for the period between July 6, 2016 March 7, through their own efforts, employing the use subpoenas were forced obtain information about one bank accounts as a result partial disclosure. See Response Interrogaries attached as Exhibit 5 plaintiffs' Affidavit dated January 26, 2018 previously filed with the court

4 6. Then on May 2, 2018, counsel filed yet another partial disclosure an additional bank account, this time in the name Defendant, Florence Peters from Hudson Valley Federal Credit Union, nine (9) months after original disclosure response Plaintiffs filed with the Court on August 12, 2017 the five (5) days before scheduled depositions with counsel. 7. Moreover, with respect the alleged missing "briefease" which has been represented counsel contain all the documents materials sought Plaintiffs, in no shape, manner, or form prior August 12, 2017 did or Counsel make any reference a "briefcase" left at the Nyack Property or job site, until they were compelled produce evidence answer Plaintiffs Interrogaries. It should be noted that almost four months passed between the time when the agents retrieved ols from the Nyack Property when the were terminated Plaintiffs. Never once during that time was there any dem made Plaintiffs for the alleged missing "briefease." 8. Plaintiffs reiterate that even if it were true that many the relevant discovery which Plaintiffs seek were contained in a missing "briefease," presumably have other means which could should produce such documents including requesting documents from banks, 4 4 9

5 certified public accountants vendors, as Plaintiffs will now have do at own expense. 9. Defense Counsel Allan R. Freidman is correct about one fact stated in his Memorum In Opposition filed with the Court on May 10, 2018, there has been only one Order this Court instructing counsel provide the disclosure sought Plaintiffs. But Defense Counsel should be reminded that at a Status Conference Hearing on September 15, 2017, when Mr. Freedman requested an adjournment proceedings until after the Jewish holidays, the Court required Mr. Freedman register as a New York State Court e-filer produce the documents the Plaintiffs have requested. Prior that date, Defendant Florence Peters was apparently making all court filings on behalf the counsel. Moreover, counsel failed appear at a Status Conference Hearing without explanation or notice counsel or the Court the on January 16, 2017, which led counsel's filing its original Motion Compel disclosure on January 24, In addition participating in four (4) days deposition with Counsel, Plaintiffs have responded every request have made Plaintiffs produce disclosure continue put gether "copies" supporting 5 5 9

6 disclosure that has herere been documented the previously through other forms. 11. have spent countless hours drafting filing subpoenas, paying for postage copies; spent hundreds dollars in preparing filing motions in order ascertain disclosure that should have been provided in an attempt learn how spent the $172, funds. 12. Plaintiffs cannot be expected do the work or counsel counsel cannot be allowed ignore the Court's directives with impunity. 13. In Reynolds Sec. v. Underwriters Bank Trust Co. 44 NY2d 568, 572 (1978), the Court Appeals New York found that "where a party in these circumstances disobeys a court order his conduct frustrates the disclosure scheme provided the CPLR, dismissal the complaint is within the broad discretion the trial court." Battagila Ho fmeister, 100 Ad 2d 833, 834 (1984) 14. "The purpose disclosure procedures," declared the Appellate Division for the First Department in Rios v. Donovan 21 AD 2d 409 (1964), "is advance the function a trial ascertain the truth accelerate the disposition suits" the Appellate Division, Fourth Department, wrote that "[if ] there is any possibility that information is sought in good faith for possible use as 571- evidence-in

7 chief or in rebuttal or for cross-examination, it should be considered "evidence material...in the prosecution or defense." 3 Weinstein Korn-Miller, N.Y. Civ. Prac., par "If the credibility court orders the integrity our judicial system are be maintained, a litigant cannot ignore court orders with impunity." Kihl v. Pfeffer 94 NY 2d 118, 123 (722 N.E. 2d 55, 700, 700 NYS 2d 87 (2003). Indeed, the New York State Legislature, recognizing the need for courts be able comm compliance with their disclosure directives, has specifically provided that a "court make such orders...as are just," including dismissal a pleading. id. Kihl v. Pfeffer 94 NY 2d 118, 123 (722 N.E. 2d 55, 700, 700 NYS 2d 87 (2003) 16. Finally, compliance with a discovery order "requires both a timely response one that evinces a good-faith effort address requests meaningfully." Kihl v. Pfeffer 94 NY 2d 118, 123 (722 N.E. 2d 55, 700, 700 NYS 2d 87 (2003) Supra The foregoing pattern behavior as evidenced the in counsel's filings with this Court demonstrate that compliance with the ongoing discovery process CPLR has been neither timely nor in good faith

8 CONCLUSION For all the foregoing reasons, plaintiffs respectfully request that this Court support the motion previously filed issue the appropriate order or alternatively dismissal counterclaims alleged requested in the Motion Compel Preclude May 1,

9 Dated: May 14, 2018 DEREK DAVIS, ATTORNEY AT LAW Derek Davis, Esq. Atrney for the Plaintiffs 301 Highmount Terrace Upper Nyack, New York