FILED: NEW YORK COUNTY CLERK 12/22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 12/22/2017 EXHIBIT 11.

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1 EXHIBIT 11 1 of 106

2 May 29, 2014 Daniel C. Edelman 60 Broad Street, 34 th Floor New York, New York (212) BY ELECTRONIC COURT FILING AND MAIL Honorable Eileen Bransten Judge, New York County Civil Branch New York State Supreme Court 60 Center Street New York, NY Re: EVURTI, LLC et al. v Frydman, et al. Index No /2014 Dear Justice Bransten: I am the attorney for defendants JFURTI, LLC; Summer Investors, LLC; and Winter 866 UN, LLC in the above-referenced matter. Defendants are moving to dismiss the complaint, pursuant to CPLR 3211(a)(7). On May 20, 2014, Plaintiffs counsel wrote Your Honor, objecting to the length of Defendants previously filed brief, and initiated a call yesterday with your Honor s Law Clerk, Andrew Cali-Vasquez, who advised Defendants that, although he had not yet seen the Defendants brief, Your Honor would not consider any material beyond the twenty-fifth page of the brief. To that end, Defendants respectfully submit the following Memorandum of Law, which supercedes the previously filed memorandum of law (at Docket No. 30) and is in compliance with the page length and formatting requirements of the Commercial Division. This memorandum of law is a heavily edited version of the originally filed brief, and uses the same Exhibits A-V which were previously filed. return date. Furthermore, please note that Defendants have calendared June 16 as the new Respectfully, UNITED REALTY ADVISORS, LP 60 BROAD STREET, 34TH FLOOR NEW YORK, NEW YORK T: /s/ Daniel C Edelman Daniel C. Edelman Attorney for Defendants JFURTI, LLC, Summer Investors, LLC and Winter 866 UN, LLC 2 of 106

3 cc: Jacob Frydman Samuel Kadosh Daniel C. Edelman 60 Broad Street, 34 th Floor New York, New York (212) UNITED REALTY ADVISORS, LP 60 BROAD STREET, 34TH FLOOR NEW YORK, NEW YORK T: of 106

4 EXHIBIT 12 4 of 106

5 FILED: NEW YORK COUNTY CLERK 06/03/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 06/03/ /22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC, and ELI VERSCHLEISER, v. Plaintiffs, JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC, and WINTER 866 UN LLC, Index No.: /2014 I.A.S. Part: 3 Hon. Eileen Bransten Motion Seq.: 004 Notice of Motion Defendants. PLEASE TAKE NOTICE that, upon the annexed Affirmation of Samuel Kadosh, dated June 3, 2014 and annexed exhibits, the accompanying Memorandum of Law in Support of Plaintiffs Motion to Strike Defendants Motion to Dismiss the Complaint, and all prior proceedings had herein, Plaintiffs EVUNP Holdings LLC, EVURTI LLC, EVE LLC and Eli Verschleiser, by its attorneys Reed Smith LLP, will move this Court at 60 Centre Street, Room 130, New York, New York, on July 17, 2014 at 9:30 a.m., or as soon thereafter as counsel can be heard, for an Order: A. striking Defendants Motion to Dismiss with prejudice, B. extending Plaintiffs time to respond to Defendants Motion to Dismiss until 30 days after the resolution of this motion, and C. granting such other relief as the Court may deem just and proper. 1 5 of 106

6 PLEASE TAKE FURTHER NOTICE, that answering papers, if any, shall be served upon the undersigned at least seven days before the above-identified return date, pursuant to CPLR 2214(b). Dated: June 3, 2014 New York, New York REED SMITH LLP By: _Steven Cooper Steven Cooper Samuel Kadosh 599 Lexington Avenue New York, New York Tel: (212) Fax: (212) Attorneys for Plaintiffs EVUNP Holdings LLC, EVURTI LLC, EVE LLC, and Eli Verschleiser 2 6 of 106

7 FILED: NEW YORK COUNTY CLERK 06/03/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 06/03/ /22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC, and ELI VERSCHLEISER, v. Plaintiffs, Index No.: /2014 I.A.S. Part: 3 Hon. Eileen Bransten Motion Seq.: 004 JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC, and WINTER 866 UN LLC, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS MOTION TO DISMISS THE COMPLAINT 7 of 106

8 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 FACTS... 2 A. First Motion: Defendants File an Oversize Brief Without Obtaining the Court s Permission... 2 B. Second Motion: Defendants Tamper with Their Brief s Formatting to Circumvent the Court s Page Limits... 3 C. Third Motion: Defendants Third Motion Still Violates the Court s Rules... 4 ARGUMENT... 6 I. The Court Should Strike Defendants Motion To Dismiss Because It Is Replete With Disputed Facts That Are Not Properly Before This Court On A Motion To Dismiss II. The Court Should Strike Defendants Motion To Dismiss Because Defendants Violated the Court s Rules Regarding Page Limits for the Third Time III. Defendants Motion to Dismiss Should be Struck with Prejudice IV. The Court Should Extend Plaintiffs Time to Respond to Defendants Motion Until Thirty Days After the Resolution of This Motion CONCLUSION i 8 of 106

9 TABLE OF AUTHORITIES Cases Page Delgrange v. Madison Immobilier, LLC, /2013, 2013 WL (Sup. Ct. N.Y. County October 18, 2013)... 9 Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314 (2002)... 6 JFK Hotel Owner, LLC v. Hilton Hotels Corp., /2013, 2014 WL (Sup. Ct. N.Y. County, March 14, 2014)... 7 Leon v. Martinez, 84 N.Y.2d 83 (1994) Northeast Sort & Fulfillment Corp. v. Reader's Digest Ass'n, Inc., No /1996, 2000 WL (Sup. Ct. Westchester County, September 13, 2000) Tsimerman v. Janoff, 40 A.D.3d 242 (1st Dep't 2007)... 6 U.S. Fire Ins. Co. v. N. Shore Risk Mgmt., 114 A.D.3d 408 (1st Dep't 2014)... 9 ii 9 of 106

10 PRELIMINARY STATEMENT This is a motion to strike Defendants Motion to Dismiss, filed on May 29, 2014 on the grounds that: 1. The motion incorporates 418 pages of extrinsic, unnecessary and prejudicial exhibits and affidavits containing disputed factual materials which are not properly placed before the Court on a motion to dismiss. 2. The arguments in Defendants brief are inextricably interwoven with the improperly included facts such that it is impossible to consider the motion without considering the improper factual material; and 3. Defendants have again violated the Court s May 6, 2014 order and Commercial Division rules regarding page limits by supplementing their brief with a 65-page affidavit in support of their motion from which they quote extensively. This is the third Motion to Dismiss Defendants have filed in this action. Their prior two motions also violated the Court s rules on, inter alia, page limits, font size, line-spacing, and footnote font-size, and were withdrawn after Plaintiffs notified the Court of Defendants violations. In light of these repeated violations, Plaintiffs respectfully request that the Court strike Defendants third Motion to Dismiss, with prejudice. Defendants have intentionally violated the Court s rules three times, and they should not be given an unprecedented fourth opportunity to file a motion to dismiss, especially because Defendants time to answer has lapsed more than ten-days ago of 106

11 Finally, Plaintiffs seek to extend the time to oppose Defendants Motion to Dismiss until thirty days after the Court rules on the instant Motion to Strike. FACTS A. First Motion: Defendants File an Oversize Brief Without Obtaining the Court s Permission On April 30, 2014, Defendants filed a letter with the Court requesting to modestly exceed the page limits provided for in Local Rule 14 (b). See Letter from Daniel Edelman to Judge [sic] Bransten, ECF No. 2 (Apr. 30, 2014), attached as Ex. A to the Kadosh Affidavit. On the same day, Plaintiffs opposed this request on the grounds that Defendants did not specify the length of the extension they were seeking, did not provide any justification for the page extension, and incorrectly cited to Local Rule 14, which provides for a 30-page limit, as opposed to the applicable Commercial Division rule, Rule 17, which only allows 25 pages for a brief. See Letter from Samuel Kadosh to Justice Bransten, ECF No. 3 (Apr. 30, 2014), attached as Exhibit B to the Kadosh Affidavit. The next day, without awaiting any guidance from this Court, Defendants filed a 45 page brief in support of their Motion to Dismiss, and an additional 418 pages of affidavits and exhibits in support of their motion. See ECF Nos (May 1, 2014). On May 6, 2014, the Court denied Defendants request for a page-limit extension, and informed Defendants that the Court would not read beyond page twenty-five of their brief or supporting affidavits. See from 2 11 of 106

12 Andrew Cali-Vasquez to Steven Cooper et. al, attached as Exhibit C to the Kadosh Affidavit (the May 6 th Order ). Alternatively, the Court allowed Defendants to re-file their brief and affidavits in a way that complied with the Court s page-limits. B. Second Motion: Defendants Tamper with Their Brief s Formatting to Circumvent the Court s Page Limits On May 19, 2014, Defendants filed their second Memorandum of Law in Support of Their Motion to Dismiss. ECF No. 30. In their letter accompanying the motion, Defendants explained that they were withdrawing their original motion, and re-filing a memorandum that complies with the [page-limits of] Rule 17. See Letter from Daniel Edelman to Judge [sic] Bransten, ECF No. 31 (May 19, 2014) attached as Exhibit D to the Kadosh Affidavit. Although Defendants represented that they had submitted a brief that complied with the twenty-five page limit, Defendants in fact submitted a 38 page brief (although with only twenty-five numbered pages) by formatting their brief with a smaller font-size, margin size, line-spacing and footnote font size than allowed by Commercial Division Rule No. 6. This was a deliberate attempt by Defendants to circumvent the Court s denial of their request for a page extension. The following day, Plaintiffs wrote to the Court to object, once again, to Defendants violations. See Letter from Samuel Kadosh to Justice Bransten, ECF No. 32 (May 20, 2014) attached as Exhibit E to the Kadosh Affidavit of 106

13 On May 28, 2014, the parties jointly called the Court, and the Court instructed Defendants that it would not accept a brief that did not conform with the Commercial Division rules. Defendants admitted that their second brief did not comply with the Commercial Division s rules, but justified their conduct by stating that their second brief was shorter than their first brief. C. Third Motion: Defendants Third Motion Still Violates the Court s Rules On May 29, 2014, Defendants filed their third motion to dismiss. ECF No. 34. Defendants did not file new exhibits or affidavits with this motion, but instead relied on those filed with their original motion to dismiss. See Letter from Daniel Edelman to Justice Bransten, ECF No. 35 (May 29, 2014) attached as Exhibit F to the Kadosh Affidavit. Although Defendants were given three opportunities to file a motion to dismiss that conformed with the Court s rules, they still refuse to do so. First, Defendants wrongfully accompanied their motion to dismiss with twenty-one (21) exhibits and affidavits, comprising over 418 pages of extrinsic material. These exhibits and affidavits introduce new and contested facts, and are improperly placed before the Court on a motion to dismiss, which, with limited exceptions not relevant here, must accept as true the facts alleged in a plaintiff s complaint. Defendants brief is inextricably interwoven with citations to these new and improper facts, thereby rendering any consideration of the brief absent these facts impossible of 106

14 Second, in its May 6 th order, the Court ruled that Defendants may either resubmit a memorandum/brief and affirmation/affidavit that complies with Rule 17, or, if Defendants choose to rely on the currently filed versions of Defendants' memorandum and affidavit in support, the Court will not read beyond page 25 in each of those documents when deciding the motion to dismiss. Kadosh Aff., Ex. C (emphasis supplied). This order is consistent with Commercial Division Rule No. 17 which mandates that affidavits and affirmations shall be limited to 25 pages each. Defendants violated this Rule and the Court s express order by supplementing their brief with the Affidavit of Jacob Frydman, which is sixty-five pages long. See Affidavit of Jacob Frydman, ECF No. 8 (May 1, 2014). Mr. Frydman s affidavit is referred to extensively throughout Defendants brief, and is the fulcrum of the arguments advanced in their brief. 1 The present motion to strike followed. 1 These are not the only instances where Defendants have disregarded the Court s rules. In a hearing before the Court on April 29, 2014 in a related action, JFURTI v. Verschleiser, / 2014, Frydman attempted to introduce evidence for the first time, after deliberately withholding it from Plaintiffs, and telling Plaintiffs to go look up the information on the internet. The Court rebuked Frydman, stating that the glib answer, "Look it up on the Internet" is not good enough and refusing to consider Frydman s improper evidence. See May 29, 2014 Tr. 11:4-7; of 106

15 ARGUMENT I. The Court Should Strike Defendants Motion To Dismiss Because It Is Replete With Disputed Facts That Are Not Properly Before This Court On A Motion To Dismiss. A. Improper Affidavits: Exhibits B, D, I, U In support of their Motion to Dismiss, Defendants have attached twenty-one exhibits and affidavits totaling over 418 pages of extrinsic evidence and and disputed facts. These exhibits include four affidavits from Defendants or its employees totaling over seventy pages of new and contested testimony. See Defendants Ex. B (Frydman Aff.); Ex. D (Funt Aff.); Ex. I (Constantinescu Aff.); Ex. U (Loparrino Aff.) Defendants brief is replete with references to these affidavits, and the arguments in their brief are inextricably intertwined with this disputed evidence. Because such disputed evidence is inadmissible on a motion to dismiss, Defendants motion must be stricken. A party moving to dismiss may only rely on (i) documents that are appended to, or incorporated by reference in, the complaint, (ii) matters about which the Court may take judicial notice or (iii) documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002). Affidavits do not qualify as documentary evidence for purposes of a motion to dismiss. Tsimerman v. Janoff, 40 A.D.3d 242, 242 (1st Dep t 2007) (affidavits that did no more than assert the inaccuracy of 6 15 of 106

16 plaintiffs' allegations, may not be considered, in the context of a motion to dismiss ); JFK Hotel Owner, LLC v. Hilton Hotels Corp., /2013, 2014 WL , at *12 (Sup. Ct. N.Y. County, March 14, 2014) (Bransten, J.) (holding that defendant s affidavits may not be considered on a motion to dismiss). Nearly every page of Defendants brief includes these improper factual assertions, making it impossible to consider Defendants arguments independent of these facts which cannot be considered on a motion to dismiss. For example, Defendants respond to Plaintiffs breach of contract claim by asserting that Defendants did not breach the contract. See generally Defendants Motion to Dismiss ( Defs. Mot. ) at Further, Defendants claim that Plaintiffs cannot show performance under the contract and that Mr. Verschleiser s blatant and repeated breaches of the Separation Agreement began immediately after signing the Agreement. Id. at 19. These facts were not taken from Plaintiffs Complaint, but from Mr. Frydman s affidavit, and thus cannot be considered on a motion to dismiss. See Frydman Aff Similarly, Defendants argue that they did not breach the contract by failing to make the required distributions under the contract because the holding companies have not made any distributions since December 3, Defs. Mot. at 20. The source for this disputed fact is the affidavit of Mr. Loparrino, Defendants employee. See Defs. Ex. U of 106

17 Another example of Defendants improper use of affidavits to introduce contested facts is in their response to Plaintiffs request for a declaratory judgment. Defendants contend that there is no justiciable controversy regarding the ownership of United 866 Management because neither Frydman, nor any of the Frydman Parties make any claim to own [Plaintiffs ] interest in United 866 Management LLC. Defs. Mot at Defendants statements are based on Paragraphs of Mr. Frydman s affidavit. Defendants have again premised their motion to dismiss on the self-serving affidavit submitted by the principal Defendant, which is wholly improper. A final (but by no means exhaustive) example of Defendants use of newly-introduced contested facts is in their response to Plaintiffs fraudulent inducement claim. The first cause of action in the Complaint asserts that Defendant Jacob Frydman and Plaintiffs attorney, Martin Bell, fraudulently induced Plaintiffs to enter into the Sale and Purchase Agreement. In response, Defendants claim that Martin Bell represented the parties jointly, and not Plaintiffs individually, and that Plaintiffs were represented by counsel in Chicago. See Defs. Mot Defendants source for these facts are the affidavit of Defendant Jacob Frydman and Defendants employee Barry Funt; these allegations are at odds with the allegations in the Complaint. These affidavits, which consist of nothing more than Defendants view of the facts, cannot be considered on a motion to dismiss, and therefore, Defendants motion, which is premised on these facts, must be stricken of 106

18 B. Improper s: Exhibits M, N, O, P, Q, R, S Defendants also submitted seven exhibits of s, including s authored by Mr. Frydman, in support of their motion to dismiss. Like affidavits, s are not documentary evidence, and therefore, cannot be considered on a motion to dismiss. See U.S. Fire Ins. Co. v. N. Shore Risk Mgmt., 114 A.D.3d 408, 408 (1 st Dep t 2014) ( s do not qualify as documentary evidence for purposes of a motion to dismiss); Delgrange v. Madison Immobilier, LLC, /2013, 2013 WL , at *1 (Sup. Ct. N.Y. County October 18, 2013) (same). Defendants rely on these improper exhibits throughout their motion. For example, Defendants argue that they did not breach the provision of the sale agreement requiring them to retain Ms. Slamovitz because Ms. Slamovitz voluntarily quit her job with the Company. Defs. Mot. at 23. Defendants evidence that Ms. Slamovitz quit, and was not terminated are two self-serving s authored by Mr. Frydman. See Defs. Exs. N-O. These exhibits, among other things, cannot be considered because they are devoid of context. We do not know whether Ms. Slamovitz received these s, or replied to them, contesting their assertions. They cannot be considered on a motion to dismiss. In sum, Defendants motion should be struck because, as Defendants concede, on a motion to dismiss, the facts alleged in the complaint [are] accepted as true, and the plaintiffs accorded the benefit of every possible 9 18 of 106

19 favorable inference. Defs. Mot. at 8 citing Leon v. Martinez, 84 N.Y.2d 83, (1994). The motion is judged by such a standard because the parties have not had the benefit of discovery. Permitting this motion to go forward would waste the time and resources of the Plaintiffs, and the Court. II. The Court Should Strike Defendants Motion To Dismiss Because Defendants Violated the Court s Rules Regarding Page Limits for the Third Time Rule 17 of the Commercial Division of the Supreme Court, requires that affidavits and affirmations shall be limited to 25 pages each. The Court confirmed that this rule applies to the present case in its May 6 th order, stating that Defendants may either resubmit a memorandum/brief and affirmation/affidavit that complies with Rule 17, or, if Defendants choose to rely on the currently filed versions of Defendants' memorandum and affidavit in support, the Court will not read beyond page 25 in each of those documents when deciding the motion to dismiss. Kadosh Aff., Ex. C (emphasis supplied). Defendants violated this Rule and the Court s express order by supplementing their brief with the Affidavit of Jacob Frydman, which is sixty-five pages long. See Affidavit of Jacob Frydman, ECF No. 8 (May 1, 2014). This oversized affidavit is cited to, or provides the facts for statements on almost every page of Defendants brief, and cannot be separated out from the brief of 106

20 The page limits were enacted to ensure that there are sufficient judicial resources available, not just to the parties in a single case, but to all litigants who come before it. Northeast Sort & Fulfillment Corp. v. Reader's Digest Ass'n, Inc., No /1996, 2000 WL (Sup. Ct. Westchester County, September 13, 2000). Defendants disregard for the page limits forces the Court and Plaintiffs to expend additional time and resources reviewing and responding to their motion. This is the third time Defendants have willfully flouted the Court s Rules concerning page limits, and therefore, their Motion to Dismiss should be struck. Id. (refusing to consider the parties briefs that were in excess of the page limits, including an 83-page affidavit). III. Defendants Motion to Dismiss Should be Struck with Prejudice Defendants have serially violated the Court s rules regarding page limits, font sizes, line-spacing, margin size and footnote font-size. When the Court denied their request for an extension, they misleadingly tampered with their brief s formatting to fit 38 pages of text on to 25 pages. They have now filed a third Motion to Dismiss which still violates the rules by introducing hundreds of pages of contested factual material, and an oversize affidavit in support of their motion. Defendants should not be given endless opportunities to file a motion that violate the Rules, and Plaintiffs therefore request that Defendants Motion to Dismiss be struck with prejudice of 106

21 IV. The Court Should Extend Plaintiffs Time to Respond to Defendants Motion Until Thirty Days After the Resolution of This Motion Plaintiffs opposition papers to the Motion to Dismiss are due on June 9, On May 29, 2014, Plaintiffs asked Defendants for an extension of time to respond to the motion to dismiss. Defendants refused, and suggested that we go ask the court for an extension. Plaintiffs request that, given the current motion to strike, the Court extend Plaintiffs time to oppose Defendants motion to dismiss until thirty days after that the Court rules on the current motion. Such a stay is in the interest of judicial economy in that it is inefficient to fully brief a motion which may be struck or significantly revised. CONCLUSION Plaintiffs respectfully request that the Court strike Defendants Motion to Dismiss with prejudice. Plaintiffs further request that its time to respond to Defendants Motion to Dismiss be extended until thirty days after the resolution of this motion of 106

22 Dated: June 3, 2014 New York, New York REED SMITH LLP By: _Steven Cooper Steven Cooper Samuel Kadosh 599 Lexington Avenue New York, New York Tel: (212) Fax: (212) Attorneys for Plaintiffs EVUNP Holdings LLC, EVURTI LLC, EVE LLC, and Eli Verschleiser of 106

23 EXHIBIT of 106

24 FILED: NEW YORK COUNTY CLERK 06/03/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 06/03/ /22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC, and ELI VERSCHLEISER, v. Plaintiffs, Index No.: /2014 I.A.S. Part: 3 Hon. Eileen Bransten Motion Seq.: 004 JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC, and WINTER 866 UN LLC, Defendants. AFFIRMATION IN SUPPORT OF PLAINTIFFS MOTION TO STRIKE DEFENDANTS MOTION TO DISMISS SAMUEL KADOSH, an attorney duly admitted to practice in the courts of this state, affirms the following under penalty of perjury pursuant to CPLR 2106: 1. I am a member of the Bar of this Court and an attorney at the firm of Reed Smith LLP, attorneys for Plaintiffs in this action. 2. I respectfully submit this affirmation to place before the Court documents relevant to Plaintiffs Motion to Strike Defendants Motion to Dismiss. 3. Exhibit A is a Letter from Daniel Edelman to Judge [sic] Bransten, ECF No. 2, dated Apr. 30, Exhibit B is Letter from Samuel Kadosh to Justice Bransten, ECF No. 3, dated Apr. 30, Exhibit C is a Copy of the Court s Order, dated May 6, of 106

25 6. Exhibit D is a Letter from Daniel Edelman to Judge [sic] Bransten, ECF No. 31, dated May 19, Exhibit E is a Letter from Samuel Kadosh to Justice Bransten, ECF No. 32, dated May 20, Exhibit F is a Letter from Daniel Edelman to Justice Bransten, ECF No. 35, dated May 29, Dated: New York, New York June 3, 2014 /s/ Samuel Kadosh Samuel Kadosh 2 25 of 106

26 EXHIBIT of 106

27 Kadosh, Samuel From: Sent: To: Subject: Andrew Cali-Vasquez Tuesday, May 06, :15 PM Cooper, Steven; Kadosh, Samuel; RE: /2014 EVUNP Holdings LLC et al - v. - Jacob Frydman et al Dear Counselors, I write regarding the parties' letters filed on April 30, 2014 (NYSCEF Doc. Nos. 2-3). Commercial Division Rule 17 sets forth the applicable page limits for motions made before this Court. Defendants' request for an extension of those limits is denied. Defendants may either resubmit a memorandum/brief and affirmation/affidavit that complies with Rule 17, or, if Defendants choose to rely on the currently filed versions of Defendants' memorandum and affidavit in support, the Court will not read beyond page 25 in each of those documents when deciding the motion to dismiss. To the extent additional time is required to draft and submit papers that are compliant with the page limits set forth above, the Court would be willing to consider a request for such an extension of time. Additionally, Defendants' request to consolidate this action with the actions bearing index numbers /2013 and /2014, is denied without prejudice to Defendants' right to make that request by motion (as opposed to by letter). Thank you, Andrew Cali-Vasquez Andrew M. Cali-Vasquez, Esq. Assistant Law Clerk to the Hon. Eileen Bransten Phone: (646) Fax: (212) ACALIVAS@courts.state.ny.us 1 27 of 106

28 EXHIBIT of 106

29 FILED: NEW YORK COUNTY CLERK 07/10/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 07/10/ /22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC and ELI VERSCHLEISER, -against- JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC and WINTER 866 UN LLC, Plaintiffs, Index No /2014 I.A.S. Part 3 Hon. Eileen Bransten, J.S.C. Motion sequence 004 NOTICE OF CROSS- MOTION Defendants x PLEASE TAKE NOTICE, that upon all prior pleadings and proceedings heretofore had herein, and the accompanying affirmation, Memorandum of Law and all exhibits attached thereto, the Defendants will cross-move this Court at a Motion Part thereof to be held at Supreme Court, New York County, located at 60 Centre Street, Room 130, New York, New York on the 17th day of July, 2014, at 9:30 a.m., or as soon as counsel can be heard, for an order nunc pro tunc to amend the erroneous form of Defendant s affidavit pursuant to CPLR 2001, and such further relief as the Court deems just and proper. Dated: New York, New York July 10, 2014 JACOB FRYDMAN Appearing Pro Se 60 Broad Street, 34 th Floor New York, N.Y (212) Jacob.f@urpa.com 29 of 106

30 By: /s/ Jacob Frydman Jacob Frydman DANIEL C. EDELMAN Attorney for Defendants JFURTI LLC, Summer Investors LLC and Winter 866 UN Plaza LLC 60 Broad Street, 34 th Floor New York, N.Y (212) By: /s/ Daniel C. Edelman Daniel C. Edelman TO: Steven Cooper Samuel Kadosh Counsel for Plaintiffs 599 Lexington Avenue New York, New York Tel: (212) Fax: (212) of 106

31 FILED: NEW YORK COUNTY CLERK 07/10/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 07/10/ /22/2017 Index No /2014 Motion Seq. 004 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC and ELI VERSCHLEISER Plaintiffs, -against- JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC and WINTER 866 UN LLC, Defendants. DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO STRIKE AND CROSS-MOTION FOR AN ORDER NUNC PRO TUNC JACOB FRYDMAN Appearing Pro Se 60 Broad Street, 34 th Floor New York, N.Y Tel: (212) DANIEL C. EDELMAN Attorney for Defendants 60 Broad Street, 34 th Floor New York, N.Y Tel: (212) of 106

32 TABLE OF CONTENTS PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...2 ARGUMENT...3 Page POINT I... 3 DEFENDANTS' MOTION TO DISMISS AND SUPPORTING EXHIBITS ARE PROPERLY BEFORE THE COURT A. The Court Should Convert Defendants' Motion To Dismiss Into a Motion For Summary Judgment Pursuant to CPLR 3211(c)... 4 B. Extrinsic Evidence Is Proper on a CPLR 3211(a)(7) Motion That is Not Given Summary Judgment Treatment... 5 POINT II... 8 MOTION TO STRIKE IS IMPROPER WHERE DEFENDANTS CORRECTED THE LENGTH OF THEIR BRIEF AND PLAINTIFFS WERE NOT PREJUDICED... 8 CONCLUSION of 106

33 TABLE OF AUTHORITIES Cases Page Allen v Gordon, 86 A.D.2d 514 (1 st Dept. 1982) , 6 Bako v. V.T. Trucking Co., 143A.D.2d 561 (1 st Dept. 1988) Blackgold Realty Corp. v. Milne, 119A.D.2d 512 (1 st Dept. 1986) Biondi v Beekman Hill House Apartment Corporation, 257 A.D..2d 76(1 st Dept. 1999) aff d on other grounds, 94 N.Y.2d 659 (2000). 3, 4, 6 Guggenheimer v Ginzburg, 43 N.Y.2d 268 (1977)... 4 Hunter Mech. Corp. v. Salkind, 237 A.D.2d 180 (1 ST Dept. 1997) IIG Capital LLC v. Archipelago, L.L.C., 36 A.D.3d 401 (1 st Dept. 2007) Moccia v Carrier Car Rental, Inc. 40 A.D.3d 504 (1 st Dept. 2007) Tagliaferri v. Weiler, 1 N.Y. 3d 605 (2004)... 9 Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267 (1st Dept. 2005) Statutes CPLR , 8 CPLR , 4, 5, 6 CPLR , 5 Other Authorities 33 of 106

34 Siegel, David, Commentary C3211:44 In Mckinney's Cons. Laws Of N. Y., Book 7b, CPLR Siegel, David, N.Y. Practice 257 (4th Ed.) of 106

35 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC and ELI VERSCHLEISER Plaintiffs, -against- JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC and WINTER 866 UN LLC, Defendants X DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO STRIKE AND CROSS-MOTION FOR AN ORDER NUNC PRO TUNC PRELIMINARY STATEMENT Index No /2014 Just. Eileen Bransten Motion Seq. 004 Defendants oppose Plaintiffs motion to strike Defendants motion to dismiss (Edelman Aff. Ex. 1), as the relief Plaintiffs seek is drastic, extreme and wholly inappropriate. Although Plaintiffs assert that Defendants have impermissibly offered affidavits and extrinsic evidence to support their CPLR 3211(a)(7) motion to dismiss, CPLR 3211(c) plainly states that [u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. (emphasis added). Plaintiffs misapply the documentary evidence standards relating to CPRL 3211(a)(1) motions to Defendants CPLR 3211(a)(7) motion, thus, the affidavits and extrinsic evidence offered by Defendants are entirely proper on a motion to dismiss for failure to state a claim. Not surprisingly, Plaintiffs fail to cite to any authority that countenances striking an opposing parties motion to dismiss which is supported by affidavits and extrinsic evidence. Plaintiffs also argue that the length of Defendants motion papers is grounds for striking Defendants motion. When the issue of Defendants paper length was brought to the 35 of 106

36 Court s attention, the parties were instructed in a May 6 from Your Honor s law clerk that Defendants may either resubmit a memorandum/brief and affirmation/affidavit that complies with Rule 17, or, if Defendants choose to rely on the currently filed versions of Defendants memorandum and affidavit in support, the Court will not read beyond page 25 in each of those documents. Edelman Aff., Ex. 2. Notably absent here, is any reference to, or threat of, striking Defendants motion. Defendants have taken pains to heed the Court s advice, and filed a memorandum of law that complies with Rule 17. Edelman Aff. Ex. 1. To the extent that Defendants require leave of the Court to correct the length of the Frydman affidavit, Defendants cross-move for nunc pro tunc relief to correct the length of Mr. Frydman s affidavit pursuant to CPLR STATEMENT OF FACTS On May 1, 2014, Defendants filed a motion to dismiss that exceeded the page limit allowed under Commercial Division Rule 17. The motion papers contained various exhibits evidencing that Plaintiffs not only have failed to state a claim for which relief may be granted, but also do not have a cause of action. Plaintiffs opposed the length of Defendants brief, and on May 6, Your Honor s law clerk notified the parties via that Defendants request for an extension of the page limit was denied, and that Defendants may either resubmit a memorandum/brief and affidavit that complies with Rule 17, or rely on the currently filed versions, such that the Court will not read beyond 25 pages. Edelman Aff. Ex. 2. Defendants spent the next two weeks cutting down their motion to dismiss, and re-filed it on May 19. On May 20, Plaintiffs wrote the Court objecting to the formatting of Defendants memorandum of law, and on May 28, Plaintiffs initiated a conference call with the Court. See Edelman Aff. Ex of 106

37 During the call, Your Honors law clerk stated that he had not seen the brief, and that Your Honor would not consider any material beyond 25 pages. Defendants again re-edited their memorandum of law, and resubmitted it on May 29. Edelman Aff. Ex. 1. Although Plaintiffs had access to Defendants motion for a month, and in fact read it, albeit in longer form, Plaintiffs requested additional time to respond, as the motion was calendared for a June 16 return date. After Defendants declined to extend the briefing schedule due to Plaintiffs already having the papers for a month, Plaintiffs retaliated with the instant motion to strike. ARGUMENT POINT I DEFENDANTS MOTION TO DISMISS AND SUPPORTING EXHIBITS ARE PROPERLY BEFORE THE COURT Striking the answer of a party is an extreme and drastic penalty, warranted where the conduct is clearly deliberate or contumacious. Hunter Mech. Corp. v. Salkind, 237 A.D.2d 180, (1 st Dept. 1997) ( citations omitted). Absent such a finding, the extreme sanction of striking a pleading is unwarranted, especially where the other party cannot show that it has been prejudiced. Bako v. V.T. Trucking Co., 143 A.D.2d 561, 562 (1 st Dept. 1988). Plaintiffs incorrectly assert that consideration of Defendants motion to dismiss, which contains affidavits and extrinsic evidence, would waste the time and resources of the Plaintiffs, and the Court. Pl. Memo of Law in Supp. at 10. However, New York caselaw establishes that a defendant s affidavit and extrinsic evidence may be considered on a pre-answer motion to dismiss if it conclusively establishes that the Plainitiff has no cause of action. See e.g. Biondi v Beekman Hill House Apartment Corporation, 257 A.D.2d 76, 81 (1 st Dept. 1999), aff d on other grounds, 94 N.Y.2d 659 (2000); Blackgold Realty Corp. v. Milne, 119 A.D.2d 512, (1 st Dept. 1986); Allen v of 106

38 Gordon, 86 A.D.2d 514 (1 st Dept. 1982); see also Guggenheimer v Ginzburg, 43 N.Y.2d 268 (1977). The sources of proof on a motion under CPLR 3211 are the same as those available on a motion for summary judgment under CPLR This makes the affidavit available, see CPLR 3212(b), and the affidavit is of course the primary source of proof on a dismissal motion. Siegel, Commentary C3211:44 in McKinney's Cons. Laws of N. Y., Book 7B, CPLR All other available proof may be used; that s also the permission contained in the adopted-byreference CPLR 3212(b). Id. In reviewing affidavits and extrinsic evidence offered on a 3211 motion, Courts may elect to treat the motion to dismiss as a motion for summary judgment. See CPLR 3211(c). However, even in the absence of summary judgment treatment, extrinsic evidence may still be evaluated on a 3211 motion to dismiss. See e.g., Biondi, supra; Guggenheimer, supra. Thus, Plaintiffs motion to strike based on Defendants use of affidavits and extrinsic evidence is wholly lacking in merit, and must be denied. A. The Court Should Convert Defendants Motion To Dismiss Into a Motion For Summary Judgment Pursuant to CPLR 3211(c) CPLR 3211(c) provides that [u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. (emphasis added). Thus, subsection c contains the authority to treat Defendants motion to dismiss as one for summary judgment. Though available upon any CPLR 3211 motion regardless of ground, the exercise of the power is discretionary with the Court. If several causes of action are stated, summary judgment treatment may be directed to all of them or to any one or more of them, depending entirely on what the adduced proof supports. Plaintiffs argue that the Court Should Strike Defendants Motion to Dismiss of 106

39 Because It Is Replete With Disputed Facts That Are Not Properly Before This Court On A Motion To Dismiss. Pl. Memo of Law In Supp. at 6. Plaintiffs point to affidavits submitted by Jacob Frdyman, and certain of his employees (Exhibits B, D, I and U of Defendants motion to dismiss), as inadmissible on a motion to dismiss. Id. As an initial matter, Plaintiffs misapply the legal standard for 3211(a)(1) motions to Defendants 3211(a)(7) motion. Defendants did not move to dismiss under 3211(a)(1). However, CPLR 3211(c) empowers the court to treat the motion to dismiss as a motion for summary judgment. CPLR 3212(b) provides that affidavits and all other available proof may be used to support the motion. Consequently, the affidavits, the merits of which are argued in Defendants Memorandum of Law in Support of its Motion to Dismiss, are properly before the Court. Similarly, Plaintiffs allege that certain exhibits in Defendants Motion to Dismiss are not documentary evidence, and therefore, cannot be considered on a motion to dismiss. Pl. Memo of Law In Supp. at 9. Again, Plaintiffs misapply CPLR 3211(a)(1) standards to Defendants CPLR 3211(a)(7) motion. One example that Plaintiffs cite are the s contained at Exhibits N and O of Defendants Motion to Dismiss, which evidence that Ahuva. Slamovitz voluntarily quit her job. Pl. Memo of Law In Supp. at 9. Like the affidavits, the s fit squarely into the all available other proof provision of 3212(b), and are provided in support of Defendants assertion that Plaintiffs have no cause of action. Moving to strike Defendants motion is Plaintiffs baseless attempt to escape from proof that evidences Plaintiffs failure to state a claim for which relief may be granted. Thus, the court must not grant Plaintiffs motion to strike, and instead, the Court should determine the merits of Defendants CPLR 3211(a)(7) motion and dismiss Plaintiffs complaint. B. Extrinsic Evidence Is Proper on a CPLR 3211(a)(7) Motion That is Not Given Summary Judgment Treatment of 106

40 Even if the Court does not elect to convert Defendants Motion to Dismiss into a motion for summary judgment, Defendants Motion to Dismiss should not be stricken. Where the parties submit extrinsic evidence in connection with a CPLR 3211(a)(7) motion to dismiss the complaint and the court declines to treat the motion as one for summary judgment under CPLR 3211(c), the appropriate standard of review is whether the proponent of the pleading has a cause of action, not whether he has stated one. IIG Capital LLC v. Archipelago, L.L.C., 36 A.D.3d 401, 402 (1 st Dept. 2007)(citations omitted). Thus, contrary to Plaintiffs assertions, extrinsic evidence may be presented to support a 3211(a)(7) motion to dismiss. In cases where the court has considered extrinsic evidence on a CPLR 3211 motion, the allegations are not deemed true The motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary material submitted. Biondi, 257 A.D.2d at 81 (1 st Dept. 1999) (citations omitted). [I]t is clear that where the affidavits on a motion to dismiss made under CPLR 3211(a)(7) conclusively establish that plaintiff has no cause of action, dismissal is warranted. Allen v Gordon, 86 A.D.2d 514 (1 st Dept. 1982). Defendants Motion to Dismiss includes affidavits that flatly negate the deceptive factual allegations contained in the complaint. Plaintiffs make conclusory allegations that Frydman colluded with Plaintiffs attorney, Martin Bell to induce Plaintiffs to enter into a highly unfavorable [Separation] agreement that, among other things, allegedly transferred certain of Plaintiffs interests in the Entities to Defendants. Compl. at 86. Defendants offer the affidavits of Frydman and Barry Funt, both eyewitnesses present during the negotiations resulting in the Separation Agreement, to refute Plaintiffs baseless and unsupported claims. New York law is clear that [f]actual allegations presumed to be true on a motion [to dismiss] may properly be negated by affidavits and documentary evidence. Wilhelmina Models, Inc. v of 106

41 Fleisher, 19 A.D.3d 267, 269 (1st Dept. 2005); see generally David D. Siegel, N.Y. Prac 257 (4th ed.) (noting that "[a]ffidavits, depositions, documentary proof, admissions, letters, and any other papers or proof having evidentiary impact in the particular situation may be considered on any CPLR 3211 motion regardless of its ground"). Similarly, Plaintiffs make the incredible and unsupported allegation that that Frydman enacted changes to the ownership structure that served to circumvent his obligation to pay Plaintiffs the profits from the Broker-Dealer. Compl. at 68. Here, Plaintiffs unfounded allegation presumes that there were profits from the Broker-Dealer, and that somehow Frydman change[d] the ownership structure that served to circumvent his obligation to pay Plaintiffs. Both statements are unsupportable, and the affidavit of Joseph LoParrino (Ex. U of the Motion to Dismiss), the Chief Accounting Officer and Treasurer of United Realty, affirms that there have been no profits and therefore no distributions which would entitle Plaintiff to any profits from the Broker-Dealer. Thus, submission of the LoParrino affidavit is entirely proper, as it negates beyond substantial question Plaintiffs claim to entitlement to profits that did not exist. Moreover, Plaintiffs assertion that Frydman changed the ownership structure to circumvent his obligation to pay Plaintiffs is also unsupportable. Due to the nature of its business, and the need to maintain a separate tax reporting obligation for Prime United Holdings, LLC ( PUH ), Summer Investors, LLC ( Summer ) assigned 20% of its interest in PUH to another of Defendants affiliates, Hudson York Capital, LLC, so that it would not become a single member LLC and loose its separate identity. Defendant s attached a copy of the assignment (Ex. V of the Motion to Dismiss) to evidence that in order to continue to maintain its obligations to Verschleiser pursuant to Section 6(b) of the Separation Agreement, Summer s assignment of 20% of PUH to Hudson York Capital, LLC was conditioned on Summer of 106

42 continuing to receive all distributions from PUH through December 2025 so that, to the extent Verschleiser might be entitled to same, he would be able to be paid same. Therefore, Plaintiffs motion to strike is entirely improper, and the Court should weigh the merits of Defendants extrinsic evidence by the standard adjudication procedure for their Motion to Dismiss. POINT II MOTION TO STRIKE IS IMPROPER WHERE DEFENDANTS CORRECTED THE LENGTH OF THEIR BRIEF AND PLAINTIFFS WERE NOT PREJUDICED After Defendants submitted their May 1, 2014 Memorandum of Law and Frydman Affidavit that exceeded the Commercial Division s Rule 17 for page length, Defendants were advised by the Court to either resubmit their brief, or rely on it as is, with the proviso that the Court will only read the first 25 pages. Edelman Aff. Ex. 2. Over the next few weeks, Defendants took great pains to shorten their brief in order to conform with the length requirements of Rule 17. As there are three related cases before this Court (DJZV Holdings LLC, et al v. Frydman et al Index No /2013; JFURTI, LLC et al v. Verschleiser et al Index No /2014; and EVUNP Holdings et al v. Frydman et al Index No /2014), Defendants struggled to include all of the relevant facts and procedural history, such that the Court would have a complete picture with which to consider their Motion to Dismiss. Consequently, in order to comply with Rule 17, Defendants were forced to sacrifice thoroughness and clarity so that their brief would conform with Rule 17. Upon being made aware that their May 19 th brief (Docket No. 30) did not conform with the Court s formatting rules, Defendants again corrected their submission (Edelman Aff. Ex. 1), and Plaintiffs were not prejudiced. Nonetheless, Plaintiffs seek to circumvent the Court s ability to evaluate Defendants motion by moving to strike it, even though Plaintiffs have not been harmed, and the formatting defects and length of of 106

43 Defendants brief have been cured. During this period, while Defendants were focused on fixing the length and formatting of their memorandum of law, Defendants inadvertently neglected to do the same for Frydman s affidavit, which also exceeded the page limitations of the Commercial Division. Thus, Defendants now seek leave to amend the length of Frydman s affidavit, as a defect in the form of the affidavit can be corrected nunc pro tunc. Moccia v Carrier Car Rental, Inc., 40 A.D.3d 504 (1st Dept. 2007); Edelman Aff. Ex. 4. CPLR 2001 provides that, [a]t any stage of an action, absent prejudice of a substantial right of a party, the court shall disregard a mistake, omission, defect or irregularity." Tagliaferri v. Weiler, 1 N.Y.3d 605, 606 (2004) (internal citations omitted). Rather than having a substantial right prejudiced, Plaintiffs benefit from having the Frydman affidavit corrected. As Plaintiffs have yet to file any opposition papers to Defendants motion to dismiss, and as any defects with respect to the length of Defendants motion and affidavit now being cured, the parties briefing can proceed without any party being prejudiced,. Consequently, as Plaintiffs have not been prejudiced nor have they sustained any abridgement to any rights, the Court should allow Defendants to correct the Frydman Affidavit nunc pro tunc. Edelman Aff. Ex. 4. CONCLUSION WHEREFORE, Defendants respectfully request that the Court deny Plaintiffs motion to strike, and grant Defendants cross-motion for nunc pro tunc relief, and further relief of 106

44 as this Court may deem just and proper. Dated: New York, New York July 10, 2014 JACOB FRYDMAN Appearing Pro Se 60 Broad Street, 34 th Floor New York, N.Y (212) By: /s/ Jacob Frydman Jacob Frydman Daniel C. Edelman Attorney for Defendants 60 Broad Street, 34 th Floor New York, N.Y (212) By: /s/daniel C. Edelman Daniel C. Edelman of 106

45 Index No: /2014 Motion Seq. 004 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC and ELI VERSCHLEISER Plaintiffs, -against- JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC and WINTER 866 UN LLC, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO STRIKE AND CROSS- MOTION FOR AN ORDER NUNC PRO TUNC JACOB FRYDMAN Appearing Pro Se 60 Broad Street, 34 th Floor New York, N.Y Tel: (212) DANIEL C. EDELMAN Attorney for JFURTI, LLC; Summer Investors,LLC; and Winter 866 UN LLC 60 Broad Street, 34 th Floor New York, N.Y Tel: (212) Due and timely service is hereby admitted. New York, N.Y...., , Esq. Attorney for of 106

46 EXHIBIT of 106

47 FILED: NEW YORK COUNTY CLERK 07/10/ /22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 07/10/ /22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x EVUNP HOLDINGS LLC, EVURTI LLC, EVE LLC and ELI VERSCHLEISER -against- Plaintiffs, JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC and WINTER 866 UN LLC, Defendants X Index No /2014 Justice Eileen Bransten Motion Seq. 004 AFFIRMATION OF DANIEL EDELMAN IN OPPOSITION TO PLAINTIFFS MOTION TO STRIKE AND CROSS-MOTION FOR AN ORDER NUNC PRO TUNC DANIEL EDELMAN, an attorney duly admitted to practice in the courts of this state, affirms the following under penalty of perjury pursuant to CPLR 2106: 1. I am a member of the Bar of this Court and counsel for Defendants JFURTI, LLC, Summer Investors, LLC and Winter 866 UN LLC in this action. I submit this affirmation in opposition to Plaintiffs motion to strike Defendants motion to dismiss the complaint, and in support of Defendants cross-motion for nunc pro tunc relief pursuant to CPLR The following exhibits are relevant to Defendants opposition to Plaintiffs motion to strike Defendants motion to dismiss. 3. A copy of Defendants motion to dismiss, Docket No. 34, is annexed hereto as Exhibit A copy of the from Your Honor s law clerk, dated May 6, 2014, is annexed hereto as Exhibit A copy of the May 29, 2014 Letter from Daniel Edelman to Justice Bransten, Docket No. 35, is annexed hereto as Exhibit of 106