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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SAID HAKIM, and SAID HAKIM on behalf of RANELL FREEZE COMPANY, and SAID HAKIM on behalf of RANELL FREEZE CORPORATION, Against Plaintiffs, KAMRAN HAKIM, MASUD HAKIM, and RANELL FREEZE COMPANY and RANELL FREEZE CORPORATION, Defendants. Index No /05 PLAINTIFF S MEMORANDUM OF LAW IN OPPOSITION TO ORDER TO SHOW CAUSE AND DEFENDANTS REQUEST TO SUPPLEMENT THE RECORD REGARDING PLAINTIFF S SECOND MOTION FOR RENEWAL AND REARGUMENT DATED MAY 23, 2006 FACTS The Court has now received three sets of briefing and supporting documents with respect to the question of whether summary judgment should be granted with respect to plaintiffs claims (1) defendant Kamran Hakim s initial motion for summary judgment; (2) plaintiff s first motion for renewal and reargument; and (3) plaintiff s second motion for renewal and reargument. The Court heard oral argument as to Kamran s initial motion and again on July 13, 2006, concerning plaintiff s Second Motion for Renewal and Reargument. 1 1 The Court did not hear oral argument on plaintiff s first motion for renewal and reargument, but rather, instructed plaintiff to re-file the motion after the pleadings were amended.

2 Kamran has filed four briefs on the summary judgment issues since the Complaint in this matter was filed in August His counsel twice argued the merits of the legal issues before this Court. He has submitted Affidavits of his own and from his brother, co-defendant Masud Hakim, on these issues. 2 Now, while the Court is considering its decision on the motion for renewal and reargument, Kamran asks that the Court consider an additional submission. The Court should decline to do so. If anything, Kamran s Order to Show Cause highlights the reason why this Court should refuse to grant summary judgment until a full record is developed, as it is based on the assertion that Kamran recently uncovered boxes of documents that contain materials that he states are related to the within litigation. It is currently unknown how many boxes of such documents exist and what else those boxes may contain besides the two letters that Kamran has cherry-picked for use in his latest submission. It should be noted that, in reply to Said Hakim s discovery requests in this case, Kamran belatedly produced only three categories of documents, all of which concern only the 89 th Street property (1) tax returns for 1997 through 2004; (2) mortgage statements; and (3) rent rolls for 1996 through See Affidavit of Gregory D. Miller, Esq. He has not provided any correspondence between himself and Said or any other documents concerning the parties business relationship. Having denied Said access to any other materials, he now asks that the Court consider as dispositive of the summary judgment motion two documents he has culled from some unknown number of boxes under his exclusive control that have never been made available to plaintiff. The belated submission of this unilaterally-selected pair of documents highlights why motions for summary judgment are ordinarily not decided until discovery is completed, because otherwise one party can selectively create a one-sided record based on what 2 As the Court recalls, Masud has submitted Affidavits and amended pleadings that contradict his own earlier pleadings. 2

3 it chooses to disclose without having its position subjected to testing. If anything, Kamran s Order to Show Cause only illustrates why summary judgment cannot be granted at this time. LEGAL ARGUMENT 1. These Documents Are Not Newly-Discovered Evidence. There are numerous reasons why the Court should refuse to consider the alleged letters of Kamran Hakim and Said Hakim in connection with Said Hakim s motion for renewal and reargument. First, these materials fail to satisfy the requirement for newly-discovered evidence. CPLR 2221(e)(3) requires that a party show a reasonable justification for failing to present evidence previously. This matter has been in litigation for nearly a year now. On November 9, 2005, Plaintiff s First Notice for Discovery and Inspection was served on defendants, which should have been responded to by December 5, At the time of the hearing on April 11, 2006, Kamran still had not responded to plaintiff s discovery requests and the Court ordered that he respond to those requests relating to the 89 th Street property shortly after Passover. Yet, Kamran ignored that Order and instead delayed production of his discovery responses (which did not include the documents he now asks the Court consider) until July 12, the day before the most recent oral argument before this Court. Curiously, just six days after oral argument, Kamran suddenly came across these documents, which clearly should have been produced with his discovery responses prior to the hearing on July 13th (albeit months late) since they directly relate to the 89 th Street property. Given the pendency of this litigation for merely a year, the fact that Kamran delayed answering discovery for eight months and well beyond the date the Court had directed, and the fact that these materials were mysteriously located from some reservoir of documents of unknown quantity within days of argument of the motion, Kamran has not shown a 3

4 reasonable justification for failing to include these documents previously. Kamran does not include any explanation as to why he only recently found these letters. His only statement, which is specious at best, is that these letters came to light after we went back to look at the storage files relating to our prior office which were not available until recently.... (Affidavit of Kamran Hakim at 1). Kamram s discovery responses were due in December Kamran provides no explanation as to why his files were not available until recently and it simply is incredible that for 8 months he did not have access to these letters, but then miraculously, less than a week after the hearing, he suddenly is able to produce them. Allowing him to now supplement the motion record with these documents actually rewards his failure to search for responsive documents. On this basis alone, the Court should refuse to consider the two documents purportedly from The case cited by Kamran in support of his argument (i.e., Allstate Ins. Co. v. Raguzin, 12 A.D.3d 468, 784 N.Y.S.2d 644 (2d Dep t 2004) that these letters should be accepted by the Court as sur-reply misses the mark completely. First, the 3 letters that Kamran asks this Court to consider are not proper sur-reply material. Sur-reply may be permitted where a movant has raised new issues in his/her reply. However, the three letters offered by Kamran do not respond to any new issues raised in Said s reply brief. Kamran offers these letters in a desperate attempt to contradict Said s statement that he only recently discovered the sale of the properties at issue. This is not a new issue raised for the first time in Said s reply brief, but rather, is the focal issue of the litigation, which sits centerstage in Said s moving papers. Kamran has known about this issue from the beginning, the argument was raised in Said s moving papers, and thus, the letters are not proper sur-reply. 4

5 Second, at the hearing on July 13 th, Kamran, through counsel, requested permission to file a sur-reply brief with respect to pages 1 through 5 of Said s reply brief The Court denied Kamran s request. Kamran ignored the Court s Order and is again asking the Court to accept sur-reply on an entirely separate issue he has known about since the beginning of this litigation. The Court should summarily deny Kamran s motion to supplement the record. 2. The Documents in Question Do Not Demonstrate that Said Hakim Was Aware of any Sale of Properties. Said would note initially that the statements about the ownership of the 57 th Street property in the February 25, 1999 letter do not reflect the true facts regarding the ownership history of the 57 th Street property, which were detailed in Said s reply papers. In fact, three separate deeds show Said as the sole owner of the 57 th Street property. (See P 0258, 260, 262). Further, it is clear from reviewing Exhibit B that Said Hakim did not understand from Kamran Hakim s letter that the 57 th Street property had been sold. Exhibit B clearly demonstrates that the author believed that the property was not sold, as it says, If you feel like 57 th Street has so much sentimental value for you, you can give 3 57 th Avenue in which you are losing money on and can give it to me instead. The April 11 letter then stated that you want to take 57 th. The letter attached as Exhibit A to Kamran s Affidavit makes no direct reference to the 57 th Street property. It is thus clear that Exhibit A did not make Said aware of any sale, or at the very least a factual issue exists concerning whether he was aware that a sale occurred, and thus the documents in question do not support the grant of summary judgment in Kamran s favor. 3. These Letters Are Irrelevant to Many of the Claims Plaintiff Asserts. Third, the purported letters are irrelevant because they do not concern the claims asserted in the plaintiffs Complaint. Plaintiffs allege that Kamran Hakim took improper management fees for certain properties and sold such properties without advising plaintiffs. The only 5

6 allegation in the Complaints that is arguably touched on by these letters is the sale of the 57 th Street property, if the property near Tenth Avenue refers to that property. The letters contain no discussion of the taking of management fees for any other properties or of the sale of those properties. Also, contrary to Kamran s assertion in paragraph 2 of his Affidavit that in 1999 Said was aware that I did not accept his notion of a partnership, the April 11 letter states that Said believed such a partnership had been formed and existed since after a year or two after Said came to New York, when from that point on, they both decided it would be in [their] best interests to work together. The letter then goes on to describe joint pursuit of properties in furtherance of that partnership. Rather than contradicting the assertion of a partnership, the letter confirms it. The letter contains no indication that Said understood that Kamran was not honoring that partnership by investing for himself in properties in violation of the brothers agreement made a year or two after Said came to New York. Thus, the Court should decline to consider these letters because they are simply immaterial to nearly all of plaintiff s allegations. 4. There Is No Basis to Consider the July 13, 2005 Letter, Which is Neither Newly- Discovered Nor Relevant. The request that the Court consider the July 13, 2005 letter from Said Hakim is even more specious. Clearly, Kamran Hakim was aware of its existence prior to the completion of briefing in this matter, thus this is not remotely newly-discovered evidence under CPLR He attaches this letter solely as a chance to introduce an additional argument that he neglected to assert previously about why Said Hakim allegedly should have been aware of the improper sales of properties. 6

7 Given that Said has maintained throughout this litigation that he was unaware of the sale of these properties and he has stated that nothing in the K-1s he received revealed such sales, there is no basis for allowing Kamran to file a sur-reply to address that contention. There was no surprise in Said repeating that notion in his reply brief, as he has made that contention from the outset of this litigation, and Kamran Hakim was well aware of that contention. For instance, on page 4 of Said Hakim s Memorandum of Law in support of his cross-motion for renewal and reargument filed on March 9, 2006, Said stated, Thus, on this record, there was no evidence that Kamran s wrongdoing was discoverable from the materials he provided to Said Hakim. Having belatedly concocted a theory that Said Hakim could have become aware of the sales by scrutinizing the details of supporting schedules on tax returns, defendant Kamran Hakim asks that the Court permit it the opportunity to add this new July 2005 letter to the motion record as an excuse to squeeze in this additional argument. Kamran is asking the Court to make a factual determination that Said should have known that the other properties were previously sold -- notwithstanding that there is nothing in the tax documents that states the properties were in fact sold -- because he argues that a reasonable person might have been able to infer that the undisclosed sales occurred after closely examining an attachment to a tax return. As Said has argued at length and which forms the basis for the motion for renewal and reargument, it is improper to make factual determinations based on innuendo and without the benefit of discovery, and any such determinations are resolutions of factual issues to be performed by a jury. Therefore, the Court should refuse to supplement the record to allow Kamran to assert new arguments at this late juncture. 7

8 CONCLUSION For all of the foregoing reasons, the Court should deny Kamran Hakim s request to supplement the record to include the additonal materials attached to the July 19, 2006, Affidavit of Kamran Hakim. By s/ Gregory D. Miller Gregory D. Miller, Esq. Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, A Professional Corporation The Legal Center One Riverfront Plaza, 8th Floor Newark, NJ (973) Attorneys for Plaintiffs Ian L. Blant, Esq. Attorneys for Plaintiff 475 Park Avenue South, 16 th Floor New York, New York (212) Dated August 9, 2006 #