FILED: KINGS COUNTY CLERK 12/22/ :45 PM INDEX NO /2015 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/22/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48TH STREET CAPITAL, INC. INDEX NO /2015 Plaintiff, -against- DEFENDANT AND OP EQUITIES, LLC THIRD-PARTY Defendant OP EQUITIES, LLC Defendant/Third party Plaintiff PLAINTIFF OP EQUITIES, INC'S FIRST SET OF INTERROGATORIES TO PLAINTIFF -against- ANNA LOURIE, ELON LEBOVICH AND VIERA NOVAK, Additional Defendants PLEASE TAKE NOTICE that pursuant to CPLR 3130 and 3133, Plaintiff is required to serve, within twenty days, upon the undersigned attorney for defendants OP EQUITIES, INC, sworn answers to the following interrogatories, furnishing all information with respect thereto available to plaintiff. DEFINITIONS Unless specifically indicated, or otherwise required by the context in which the terms, names and instructions are used, the following definitions shall be applicable herein: "Communication" or "Communicated" means any transmission or exchange of information between any two or more persons, whether by telephone, oral or otherwise. facsimile, mail, discussion, 1 of 21

2 "Concerning" means relating to, referring to, describing, evidencing or constituting. "Person" means, without limitation, a natural person, corporation, unincorporated association, partnership, trusts, firm or other business entity and includes both the singular and the plural. The words "and" and "or" shall be interpreted both consecutively and disjunctively. The singular includes the plural and vice versa. The masculine form of any noun or pronoun shall be deemed to include the feminine form. A reference to a person or entity includes that person or entity and its employees, officers, agents or others acting at the person's or entities' direction or behalf. "Document" and "Documents," when used in these interrogatories, include but are not limited to, letters, telegrams, correspondence, contracts, agreements, work sheets, reports, memoranda (whether internal or external), diaries, books, records, photographs, tape recordings, computer printouts, computer, computer disks or diskettes, drawings, notes to the file, minutes of meetings, books of account, ledgers, vouchers, and other tangible things, including originals and copies, whether typed, handwritten or in tape or other recording, any paper, photographic, electronic, magnetic or other compilation of storage of information from whatever source and any material underlying, supporting or used in the preparation of any such document or documents, drafts or versions of a document containing any changes, annotations or other differing information shall be treated and produced as separate documents. 2 of 21

3 "Identify" or "Identity" when used in these interrogatories in reference to an individual person means his or her full name, residence address, business address, present relationship to plaintiff, at any time which the interrogatory may refer to by virtue of the occurrence. "Plaintiff" when used in this demand shall refer to ASTORIA STREET CAPITAL, INC., and/or any employee, agent and representative of ASTORIA STREET CAPITAL, INC. "Defendant" when used in this demand shall refer to OP EQUITIES, INC. "Third party defendant" when used in this demand shall refer to Viera Novak a/k/a Vera Novak (hereinafter referred to as "Novak") or Anna Lourie (hereinafter referred to as "Lourie") or Elon Lebovich (hereinafter referred to as "Lebovich) "Property" or "Premises" when used in this demand shall refer to the real property known as 733 Ocean Avenue and 735 Ocean Ave, Brooklyn, NY. INTERROGATORIES 1. List and furnish each contract, or memorandum (signed or proposed) between the Plaintiff and Novak. 2. List and furnish each communication between the Plaintiff or any of their representatives and Novak. 3. List all communications, writings or s between Plaintiff and anyone on their behalf and "ASC" (or any other relevant loan servicer) in connection with a "short sale" or "short pay" on these premises. In connection with this interrogatory 3 of 21

4 please furnish copies of all such communications and furnish a complete set of all documents submitted to "ASC" (or any other relevant loan servicer). 4. Please state the first date Plaintiff had any communication with Novak. Please describe who had that communication and where it took place. Also furnish any notes from that meeting. 5. Please furnish the date on which the Plaintiff first requested a title report or search on these premises. Please attach a copy of that request. 6. Please furnish all title commitments received by the Plaintiff from any title insurer or abstract company by the Plaintiff for the properties 733 Ocean Ave, Brooklyn, NY and 735 Ocean Ave, Brooklyn, NY. 7. Please state on what date the Plaintiff became aware that the record owner of these premises was defendant Op Equities, Inc. 8. Please list what communications, conversations and/or s developed as a result of Plaintiff's knowledge that OP Equities was the owner of the premises. 9. List all payments made by the Plaintiff to Novak, and attach proof. 10. List all payments made by the Plaintiff to Lebovich and attach proof. 11. List all payments made by the Plaintiff to Lourie and attach proof. 12. List all payments made by the Plaintiff, to defendant Op Equities and provide proof. Please attach copies and dates of these payments. 13. List all payments made by Novak to Op Equities, Inc and provide proof of those payments. 14. Furnish a full closing statement for the alleged closing when defendant Op Equities, Inc executed the purported deed transferring these properties to Novak. 15. Please provide details to support the Plaintiff's allegation that they are a bona fide purchaser of this property. 4 of 21

5 16. Please provide the detailed source of funds for the Plaintiff's purchase of these properties. If the funds were from a third-party lender or from a purchase money mortgage, please provide the entire file including the fully signed loan application and appraisal. 17. Please provide the Plaintiff's certificate of incorporation and by-laws. 18. Please provide a full list of the Plaintiff's officers and directors from 2014 to the present. 19. Please provide a list of all owners of the shares of stock in the Plaintiff. Please provide their full names and addresses. If any stock is beneficially owned, please provide both the title owner's name and address as well as the beneficial owners. 20. Please provide all corporate books and minutes of the plaintiff pertaining to the purchase of this property. 21. Please provide details of the Plaintiff's claim that they are entitled to equitable subrogation. 22. Please provide details of the consideration, if any paid by Novak to Op Equities, LLC. 23. Please provide a list of all those in attendance at the closing wherein Novak conveyed the premises to the Plaintiff. Please furnish all names and addresses. 24. Please provide a full list, including names and addresses, of those present when Op Equities, allegedly executed the deed to Novak. 25. Please advise if Novak secured a "title insurance policy" when she purchased these premises. If so, please provide a copy of the commitment and/or "marked up policy" and the actual policy issued. 5 of 21

6 26. Please advise if Plaintiff secured a "title insurance policy" when they purchased these premises. If so, please provide a copy of the commitment and/or "marked up policy" and the actual policy issued. 27. Please advise if Plaintiff has made any claim on that title policy. If so, please furnish a copy of the claim, all communication with the title insurer and its disposition. 28. Please list all attorneys contacted, consulted or retained by this Plaintiff in connection this lawsuit or the issues involving title to the property. In this response please advise the date they were consulted or retained and if paid any funds please provide details about those payments. 29. Set forth the names, present residence addresses, employment, professions, relationships to plaintiff and all present locations of all persons who in any way assisted plaintiffs in answering the foregoing interrogatories. State what assistance each person furnished and what information, if any, each such person furnished to the plaintiff in preparing such responses. 30. Identify any and all documents responsive to the foregoing interrogatories which have been lost. State the date or dates the loss was first detected, and identify each and every person having knowledge of such loss and/or detection. Dated: Brooklyn, New York December 22, 2017 /s Eli Fixler Eli S. Fixler, Esq. Attorney for Defendant Op Equities 1507 Avenue M Brooklyn, New York (718) of 21

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48 STREET CAPLITAL, INC. INDEX NO /2015 Plaintiff, -against- DEFENDANT AND THIRD-PARTY OP EQUITIES, LLC Defendant PLAINTIFF OP EQUITIES, LLC NOTICE OF DISCOVERY AND INSPECTION OP EQUITIES, LLC Defendant and third-party Plaintiff -against- ANNA LOURIE; ELON LEBOVICH AND VERA NOVAK Defendants PLEASE TAKE NOTICE that pursuant to CPLR 3120 defendant OP (" defendant" EQUITIES, LLC ("defendant"), by its attorney, Eli Fixler, Esq., demand that plaintiff produce and permit discovery by said defendants, the undersigned attorneys, or others acting on their behalf, the following documents and items for inspection and reproduction, at the office of Israel Vider, Esq Avenue M, Brooklyn, New York 11230, within twenty days hereof. DEFINITIONS Unless specifically indicated, or otherwise required by the context in which the terms, names and instructions are used, the following definitions shall be applicable herein: 7 of 21

8 Unless specifically indicated, or otherwise required by the context in which the terms, names and instructions are used, the following definitions shall be applicable herein: "Communication" or "Communicated" means any transmission or exchange of information between any two or more persons, whether by telephone, facsimile, mail, oral discussion, or otherwise. "Concerning" means relating to, referring to, describing, evidencing or constituting. "Person" means, without limitation, a natural person, corporation, unincorporated association, partnership, trusts, firm or other business entity and includes both the singular and the plural. The words "and" and "or" shall be interpreted both consecutively and disjunctively. The singular includes the plural and vice versa. The masculine form of any noun or pronoun shall be deemed to include the feminine form. A reference to a person or entity includes that person or entity and its employees, officers, agents or others acting at the person's or entities' direction or behalf. "Document" and "Documents," when used in these interrogatories, include but are not limited to, letters, telegrams, correspondence, contracts, agreements, work sheets, reports, memoranda (whether internal or external), diaries, books, records, photographs, tape recordings, computer printouts, computer, computer disks or diskettes, drawings, 8 of 21

9 notes to the file, minutes of meetings, books of account, ledgers, vouchers, and other tangible things, including originals and copies, whether typed, handwritten or in tape or other recording, any paper, photographic, electronic, magnetic or other compilation of storage of information from whatever source and any material underlying, supporting or used in the preparation of any such document or documents, drafts or versions of a document containing any changes, annotations or other differing information shall be treated and produced as separate documents. "Identify" or "Identity" when used in these interrogatories in reference to an individual person means his or her full name, residence address, business address, present relationship to plaintiff, at any time which the interrogatory may refer to by virtue of the occurrence. "Plaintiff" when used in this demand shall refer to ASTORIA STREET CAPITAL, INC. "Defendant" when used in this demand shall refer to OP EQUITIES, LLC. "Property" or "Premises" when used in this demand shall refer to the real property known as 733 Ocean Avenue, Brooklyn, NY and 735 Ocean Ave, Brooklyn, NY. INSTRUCTIONS 1. To the extent that any documents are withheld under a claim of privilege, identify each such document including the date, author, recipient, title, and a description of the subject matter of the document, and set forth specifically the basis for your claim of privilege. 9 of 21

10 2. All documents shall be organized in such a manner as to identify the specific request to which they are produced. 3. These document requests are continuing, and you are required to promptly supplement your response if you obtain additional responsive documents at any time prior to trial. SCHEDULE OF DOCUMENTS REQUESTED 1. The complete closing file and copies of all documents executed at the closing of title between this Plaintiff as purchaser and the seller Vera Novak a/k/a Viera Novak. This request shall be deemed to include, without limitation, copies of the contract of sale between these parties. 2. All documents and communications with the mortgage holder on both premises that resulted in the short sale of these properties. 3. Any deeds or documents or copies of same from the defendant, OP Equities to third party defendant Vera Novak a/k/a Viera Novak. 4. Any written agreements and correspondence and communications between the Plaintiff Astoria 48th Street Capital, Inc and the third-party defendant Vera Novak a/k/a Viera Novak. 5. Any applications for credit in 2015, 2016 or 2017 for Plaintiff Astoria 48th Street Capital, Inc. 6. All corporate formation documents and a list of all members or all officers and directors of Plaintiff Astoria 48th Street Capital, Inc. 10 of 21

11 7. All insurance policies of any type and nature owned by or wherein the Plaintiff Astoria 48th Street Capital, Inc is a named insured or beneficiary in the years 2014, 2015, 2016 or 2017 to date. 8. If Plaintiff has made any claim under any policy of insurance or indemnity in the years 2014, 2015, 2016 or 2017 please furnish a complete copy of the claim file specifically including but not limited to the claim made, all correspondence, the insurance company's response and the resolution of the matter. 9. All correspondence via paper or s between any of the parties to this litigation or third parties named herein. 10. A copy of the "marked up" title report from the closing when the Plaintiff acquired title to these premises. A copy of all drafts of title abstracts ordered and received for the purchase of these premises. 11. The entire file for the "short sale' or short payoff on the mortgages on these premises including all correspondence with the lender and all documents submitted in connection with this application for a short sale or short pay. 12. Copies of proof of any payments made or consideration given to defendant OP EQUITIES by Vera Novak or Viera Novak for the purchase of these premises from defendant OP EQUITIES, LLC. 13. All documents signed by Defendant at the said closing, with Novak. 14. All documents or applications made by the Plaintiff to fund the purchase of this property. 11 of 21

12 15. Proof of all payments made by the Plaintiff to purchase or acquire this property and proof of all payments made to maintain this property as well as any mortgage payments made. 16. All letters, statements and documents sent to Defendant or third-party defendant Novak by Plaintiff or any predecessors in interest, or their attorneys. 17. All documents in connection with electronic transfers, assignments, sales of any note, mortgage, deed of trust or other security instrument that currently encumbers this property or ever has encumbered since All documents requested in the set of interrogatories served on plaintiff in this matter Dated: Brooklyn, New York December 21, 2017 /s Eli Fixler Eli S. Fixler, Esq. Attorney for Defendant OP EQUITIES, LLC 1507 Avenue M Brooklyn, New York (718) of 21

13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48TH STREET CAPITAL, INC. INDEX NO /2015 Plaintiff, DEFENDANT AND THIRD PARTY PLAINTIFF OP EQUITIES, INC OP EQUITIES, LLC NOTICE TO TAKE DEPOSITION UPON Defendant ORAL EXAMINATION OP EQUITIES, LLC Defendant/Third party Plaintiff -against- -against- ANNA LOURIE, ELON LEBOVICH AND VIERA NOVAK, Additional Defendants PLEASE TAKE NOTICE that pursuant to CPLR 3107 the testimony upon oral examination of plaintiff and/or its successors and assigns, or an officer of the Plaintiff, knowledgeable about the transactions covered in this lawsuit will be taken before a notary public who is not an attorney, or an employee of an attorney, for any party or prospective party herein and is not a person who would be disqualified to act as a juror of interest or because of consanguinity or affinity to any party herein, at the offices of Eli Fixler, Esq., 1507 Avenue M, o' Brooklyn, New York on the 7th day of March 2018, at 10 clock in the forenoon of that day and from day to day thereafter until completed. 13 of 21

14 Plaintiffs are required to produce ten days prior to such examination all records and documents set forth in the attached schedule. Dated: Brooklyn, New York December 22, 2017 /s Eli Fixler Eli S. Fixler, Esq. Attorney for Defendants OP EQUITIES, INC Avenue M Brooklyn, New York (718) of 21

15 SCHEDULE OF DOCUMENTS REQUESTED 1. The complete closing file and copies of all documents executed at the closing of title between this Plaintiff as purchaser and the seller Vera Novak a/k/a Viera Novak. This request shall be deemed to include, without limitation, copies of the contract of sale between these parties. 2. All documents and communications with the mortgage holder on both premises that resulted in the short sale of these properties. 3. Any deeds or documents or copies of same from the defendant, OP Equities to third party defendant Vera Novak a/k/a Viera Novak. 4. Any written agreements and correspondence and communications between the Plaintiff Astoria 48th Street Capital, Inc and the third-party defendant Vera Novak a/k/a Viera Novak. 5. Any applications for credit in 2015, 2016 or 2017 for Plaintiff Astoria 48th Street Capital, Inc. 6. All corporate formation documents and a list of all members or all officers and directors of Plaintiff Astoria 48th Street Capital, Inc. 7. All insurance policies of any type and nature owned by or wherein the Plaintiff Astoria 48th Street Capital, Inc is a named insured or beneficiary in the years 2014, 2015, 2016 or 2017 to date. 8. If Plaintiff has made any claim under any policy of insurance or indemnity in the years 2014, 2015, 2016 or 2017 please furnish a complete copy of the claim file specifically including but not limited to the claim made, all correspondence, the insurance company's response and the resolution of the matter. 15 of 21

16 9. All correspondence via paper or s between any of the parties to this litigation or third parties named herein. 10. A copy of the "marked up" title report from the closing when the Plaintiff acquired title to these premises. A copy of all drafts of title abstracts ordered and received for the purchase of these premises. 11. The entire file for the "short sale' or short payoff on the mortgages on these premises including all correspondence with the lender and all documents submitted in connection with this application for a short sale or short pay. 12. Copies of proof of any payments made or consideration given to defendant OP EQUITIES by Vera Novak or Viera Novak for the purchase of these premises from defendant OP EQUITIES, LLC. 13. All documents signed by Defendant at the said closing, with Novak. 14. All documents or applications made by the Plaintiff to fund the purchase of this property. 15. Proof of all payments made by the Plaintiff to purchase or acquire this property and proof of all payments made to maintain this property as well as any mortgage payments made. 16. All letters, statements and documents sent to Defendant or third-party defendant Novak by Plaintiff or any predecessors in interest, or their attorneys. 17. All documents in connection with electronic transfers, assignments, sales of any note, mortgage, deed of trust or other security instrument that currently encumbers this property or ever has encumbered since All documents requested in the set of interrogatories served on plaintiff in this matter 16 of 21

17 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48TH STREET CAPITAL, INC. INDEX NO /2015 -against- Plaintiff, DEFENDANT AND THIRD PARTY PLAINTIFF OP Defendant EXPERT WITNESSES OP EQUITIES, LLC Defendant/Third party Plaintiff EQUITIES, LLC'S OP EQUITIES, LLC DEMAND FOR NON- -against- ANNA LOURIE, ELON LEBOVICH AND VIERA NOVAK, Additional Defendants PLEASE TAKE NOTICE that defendant OP EQUITIES, INC. (hereinafter "defendant"), by its attorney, Eli Fixler, Esq. hereby demand, pursuant to CPLR 3101 (a) and pertinent case law, that all parties provide to said attorney at 1507 Avenue M, Brooklyn, New York in writing and under oath, within twenty (20) days of the service of this demand, the names(s) and address(es) of each person known and/or claimed by all parties to be a witness to any of the following: 17 of 21

18 A. Each and every witness plaintiff intends to call at a trial in this action. B. Each and every witness to the allegations made by plaintiffs in its complaint and defendants in their answers. PLEASE TAKE FURTHER NOTICE that if no such witness(es) is/are known or claimed to/by the party/parties you represent, so state in a sworn reply to the above demands. PLEASE TAKE FURTHER NOTICE that the undersigned will object upon trial of this action to the testimony of any witness(es) not identified in response to the above demands. PLEASE TAKE FURTHER NOTICE that the above demands are continuing demands, and all responsive information that subsequently is made known or becomes available shall be furnished to the undersigned in a timely fashion. Dated: Brooklyn, New York December 22, 2017 /s Eli Fixler Eli S. Fixler, Esq. Attorney for Defendants OP EQUITIES, INC Avenue M Brooklyn, New York (718) of 21

19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48 STREET CAPITAL, INC. INDEX NO /2015 Plaintiff, -against- DEFENDANT AND THIRD PARTY PLAINTIFF OP OP EQUITIES, LLC EQUITIES, LLC's DEMAND FOR EXPERT WITNESSES Defendant OP EQUITIES, LLC Defendant/Third party Plaintiff -against- ANNA LOURIE, ELON LEBOVICH AND VIERA NOVAK, Additional Defendants. PLEASE TAKE NOTICE that defendant OP EQUITIES, LLC (hereinafter "defendant"), by its attorney, Eli Fixler, Esq. hereby demand, pursuant to CPLR 3101(d), that all parties provide to said attorneys at 1507 Avenue M, Brooklyn, New York within twenty (20) days of the date of service hereof, the following: 1. The name(s) and address(es) of each person that you expect to call to give expert testimony at the trial of this action including, without limitation, the name and address of each expert witness who will testify as to the value of any item which is part of plaintiff's claim for damages. 19 of 21

20 2. Disclose, in reasonable detail, the qualifications, including, but not limited to, educational background and degrees, publications, memberships in professional organizations and societies, certifications and licenses, and employment history, of each person that you expect to call to give expert testimony at the trial of this action. 3. For each person that you expect to call to give expert testimony at the trial of this action, disclose, in reasonable detail, the facts and produce, together with your response, all documents upon which the expert will rely in formulating his opinions and conclusions, and the source or sources of the expert's knowledge concerning such facts, including, but not limited to, where applicable, the statistics, studies, surveys, reports, test results, analysis and all other source material relied upon by each expert. 4. For each person that you expect to call to give expert testimony at the trial of this action, disclose, in reasonable detail, the subject matter of the testimony, including, but not limited to, the opinions to which the expert is expected to testify, the conclusions to which the expert is expected to testify, and the grounds for the opinions and conclusions to which the expert is expected to testify. PLEASE TAKE FURTHER NOTICE that in the event no such expert(s) is/are expected to be called as (an) expert witness(es) at the trial of this action, then a sworn statement to that effect is hereby demanded to be produced. PLEASE TAKE FURTHER NOTICE that the above demands are continuing demands and all responsive information that is made known or becomes available after service of the above demands shall be furnished to the undersigned attorneys in a timely fashion. 20 of 21

21 PLEASE TAKE FURTHER NOTICE that defendants will move at the time of trial or prior thereto for an order precluding the giving of testimony by an expert for whom full and complete information had not been furnished in compliance with the above demands. Further, the failure to fully comply with the above demands in a timely fashion may also be grounds for an order striking the complaint/answer and/or such other relief as the Court deems just under the circumstances. Dated: Brooklyn, New York December 22, 2017 /s Eli Fixler Eli S. Fixler, Esq. Attorney for Defendants OP EQUITIES, LLC 1507 Avenue M Brooklyn, New York (718) of 21