FILED: NEW YORK COUNTY CLERK 10/25/ :56 PM INDEX NO /2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/25/2016

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1 FILED: NEW YORK COUNTY CLERK 10/25/ :56 PM INDEX NO /2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/25/2016 SUPREME COURT OF NEW YORK COUNTY OF NEW YORK x WENDY VIGNALI, : NYSECF CASE : Plaintiff, : No.: /2016 : v. : : APEX BRANDS INTERNATIONAL LLC, : KEVIN YAP, and NEW RISE BRAND : HOLDINGS LLC, Jointly and Severally, : : Defendants. : : x AFFIRMATION OF DOUGLAS B. LIPSKY IN SUPPORT OF PLAINTIFF S CROSS- MOTION FOR PARTIAL SUMMARY JUDGMETN AND IN OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT Douglas B. Lipsky, Esq., an attorney duly licensed to practice before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury. 1. I submit this Affirmation in support of Plaintiff s cross-motion for partial summary judgment and in opposition to Defendants motion for partial summary judgment. I know the facts testified to in this Affirmation to be true based on my own personal knowledge and a review of the documents. 2. Attached hereto as Exhibits A and B, respectively, are Defendants April 15, 2016 Answer and May 6, 2016 Amended Answer. 3. On April 26, 2016, Vignali, served Interrogatories, Requests for the Production of Documents and Examination Before Trial ( EBT ) Notices upon Defendants. 4. In Plaintiff s Requests for the Production of Documents to Defendants Apex Brands International LLC, Kevin Yap and New Rise Brand Holdings, she asked 1 of 32

2 each of them to produce the following documents: Any and all documents concerning Apex Brands hiring and termination of Vignali. She also asked them to produce documents on, inter alia, their decision not to pay her severance and on the relationship between Apex Brands and New Rise Brand. 5. In her Requests for Production of Documents upon Defendants, Vignali seeks documents on, inter alia, the following issues regarding the December 2015 de facto merger: Yap continuing to have an ownership interest; then-apex Brands managers continuing their management responsibilities under New Rise Brand; then-apex Brands employees are now New Rise Brand employees and continue to perform their same duties and responsibilities and use the same equipment and resources to do so; the then-apex Brands employees continue to work and operate out of their old physical location, 512 7th Avenue, New York, New York; Apex Brands is in the process of dissolving; New Rise Brand assuming Apex Brands liabilities; a continuity of ownership exists between Apex Brands and New Rise Brand; and New Rise Brand purchased Apex Brands assets and is continuing, without interruption or meaningful change, Apex Brands business operations. By September 26, 2016, Defendants had yet to produce any documents on these issues. 6. To date, no Defendant has produced any documents that discuss why they terminated Vignali's employment. 7. In Vignali s April 26, 2016 EBT Notices to Defendants Apex Brands and New Rise Brand, she asked them each to designate individuals who are competent to testify on various subjects, including: Apex Brands [] termination of Vignali; The Circumstances regarding Apex Brands decision not to pay severance to Vignali; Apex 2 2 of 32

3 Brands reporting and operational structure; the business dealings between Apex Brands and New Rise Brands, including the circumstances regarding the de facto merger alleged in the Complaint; the role of former Apex employees at New Rise Brand; the role of former Apex Brands equipment and resources at New Rise Brand; and Apex Brands dissolution. 8. As of July 19, 2016, Defendants had not produced any responses to Plaintiff s April Interrogatories and Requests for the Production of Documents. Nor had they produced anyone for their EBT or designated the corporate representative who is competent to testify on Apex Brands and New Rise Brands behalf on the listed subjects. 9. Attached hereto as Exhibit C is a true and correct copy of the July 19, 2016 Compliance Conference Order. 10. On July 21, 2016, Defendants served their Interrogatory responses but served only written responses to the Document Requests. 11. On September 22, Defendants produced their first documents, which did not include any operating agreements, or any correspondence on Vignali s purported performance issues or their decision to terminate her. 12. By September 27, Defendant Yap had yet to be produced for his EBT and Defendants had yet to designate individuals competent to testify on the various subjects listed in Plaintiff s EBT Notices. To date, no EBTs have occurred. Defense counsel represented to Plaintiff s counsel that Yap has been in China for the past several months. 13. Attached hereto as Exhibit D is a true and correct copy of the September 27, 2016 Compliance Conference Order. 3 3 of 32

4 14. On October 7, Defendants produced 55 pages of documents and stated, through counsel, they are seeking additional documents that they intend to produce by October 14. To date, no additional documents have been produced. 15. On October 14, 2016, Defense counsel, Jonathan Rofe, ed Plaintiff s counsel the following: Please note that the corporate representatives with knowledge of this matter are Mike Geliebter and Kevin Yap, C/O Lazarus & Lazarus, 240 Madison Ave., 8th Fl., New York, NY In her Requests for Admissions, Vignali requested Apex Brands, Yap and New Rise Brand to admit or deny the following: Apex Brands International LLC ( Apex Brands ) terminated Wendy Vignali s employment without cause. On July 15, 2016, they served their responses, all of which contain the same response: Deny. Apex Brands terminated Wendy Vignali with cause. 17. Vignali intends to seek the following discovery on Defendants purported basis for firing her for cause: documents in which Defendants discuss the decision to terminate Vignali; correspondence between Defendants and Iconix on the decision to terminate Vignali; examining Yap and the Apex Brands and New Rise s corporate designees on the decision to terminate Vignali. 18. Vignali s EBT Notices to the corporate defendants include the topics listed above in paragraphs 5 and In the event the Court denies Defendants Motion, Vignali intends to continue to purse discovery on all relevant topics through document requests and EBTs, on, at the very least, the subjects listed in Paragraphs 4, 5 and 7 herein. 4 4 of 32

5 Dated: New York, New York October 25, 2016 BRONSON LIPSKY LLP s/ Douglas B. Lipsky Douglas B. Lipsky 630 Third Avenue, Fifth Floor New York, New York Phone: Fax: of 32

6 EXHIBIT A 6 of 32

7 FILED: NEW YORK COUNTY CLERK 04/15/ :40 AM INDEX NO /2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/15/ of 10 32

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18 FILED: NEW YORK COUNTY CLERK 05/06/ :55 PM INDEX NO /2016 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/06/ of 10 32

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29 INDEX NO /2016 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/19/ of 132

30 EXHIBIT D 30 of 32

31 FILED: NEW YORK COUNTY CLERK 09/28/ :17 AM INDEX NO /2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 09/28/ of 232

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