FILED: NEW YORK COUNTY CLERK 10/10/ :42 PM INDEX NO /2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/10/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ELRAC, LLC d/b/a ENTERPRISE RENT-A-CAR, Index No.: /2015 Plaintiff, AFFIRMATION IN SUPPORT OF - against - MOTION TO STRIKE STEVEN FELDMAN, PLEADINGS Defendant X EVAN R. SCHIEBER, an attorney admitted to practice law in the State of New York, affirms under the penalty of perjury as follows: 1. I am a partner at Rivkin Radler LLP, the attorneys for the plaintiff ELRAC, LLC d/b/a Enterprise Rent-A-Car, ("Plaintiff"). I am fully familiar with the facts and circumstances of this matter based on facts known to me to be true, my review of the books and records maintained by Plaintiff and other information supplied to me by various agents and employees of Plaintiff. This affinnation is respectfully subalitted in support of Plaintiff's motion for relief based on Steven Feldman's ("Defendant") violation of this Court's order of August 1, 2018 ("August 2018 Order") and for an order: (a) pursuant to CPLR 3126 striking the pleading of Defendant; (b) precluding the Defendant from offering testimonial and documentary evidence in support of Defendant's position in this action at trial; (c) resolving against the Defendant all issues; (c) directing Defendant to pay the costs and expenses, including Plaintiff's attorneys' fees occasioned by his contempt and multiple violations of Court orders and discovery violations; and (d) for such other and further relief as this Court deems just and proper. This application has been necessitated by Defendant's brazen and contumacious conduct in violating the August 2018 Order. In the August 2018 Order, this Court vacated its order 1 of 5

2 striking Defendant's Answer on, inter alia, the strict condition precedent that Defendant fully comply with all outstanding discovery by a date certain. The August 2018 Order, in which this Court reinstated Defendant's Answer only if Defendant complied with, and produced all documents that had been outstanding for years, was based on the finding that Defendant had, for years, violated repeated discovery demands and court orders. The August 2018 Order was the proverbial "final straw" in which the Court made very clear that Defendant had one last and final opportunity to produce responses to all outstanding demands by August 31, The August 2018 Order is unequivocal in that the remedy for Defendant's failure would be that the Defendant's pleading would remain stricken and the matter proceed to inquest as this Court had already ruled. Not surprisingly, and not for the first time, Defendant ignored the Court's August 2018 Order and openly flouted its directives. In response to the August 2018 Order, Defendant issued a sham response to Plaintiff's First Demand for the Production of Documents dated February 8, 2017 ("Document Demand") consisting exclusively of boilerplate improper objections. Not one document was produced. Succinctly, it is uncontroverted that, in failing to produce a single document despite the Court's clear direction to provide responses to all of Plaintiff's discovery demands, Defendant contempt is clear. As the accompanying Memorandum of Law explains, it is respectfully submitted that the remedy is clear as well. This Court has already stricken Defendant's pleading and in the August 2018 Order stated that vacating Defendant's default was "conditional", meaning that non-compliance would be appropriately punished and the pleading would remain stricken for his non-compliance. It is submitted therefore that Defendant's intentional litigation conduct in failing to abide by the Court's August 2018 Order must be met with an order, once again, striking Defendant's pleadings. 2 2 of 5

3 2. I further respectfully submit this affirmation to place before the Court the following relevant documents. (a) Annexed hereto as Exhibit "A" is a copy of the August 2018 Order. (b) Annexed hereto as Exhibit "B" is a copy of the Order to Strike Defendant's pleading dated December 11, (c) Annexed hereto as Exhibit "C" is Defendant's response to Plaintiff's Document Demand. (d) Annexed hereto as Exhibit "D" is a copy of Plaintiff's Document Demand dated February 8, (e) Annexed hereto as Exhibit "E" is a true copy a March 13, 2017 seeking compliance by Defendant of his discovery obligations. (f) Annexed hereto as Exhibit "F" is a true copy of this Court's Compliance Conference order dated April 26, (g) Annexed hereto as Exhibit "G" is a true copy of a letter dated August 16, 2017 reminding Defendant of his repeated failure to comply with courtordered discovery. (h) Annexed hereto as Exhibit "H" is a copy of a letter dated September 26, 2018 seeking compliance by Defendant of his obligations under the August 2018 Order. 3. Based on the foregoing and for the reasons set forth in the accompanying Memorandum of Law, Plaintiff respectfully requests that the Court grant Defendant's motion in its entirety and (a) strike the Defendant's Answer; (b) resolve against Defendant all issues; (c) direct Defendant to pay the costs and expenses occasioned by Defendant's multiple discovery 3 3 of 5

4 violations and orders of this Court; (d) give Plaintiff such other and further relief as this Court, (c) for such other and further relief as the Court deems just and proper. Dated: New York, New York October 10, 2018 Evan R. Schieber 4 4 of 5

5 ATTORNEY CERTIFICATION To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation and filing of the papers herein are not "frivolous", as defined in subsection (c) of section of NYCRR. Dated: New York, New York October 10, 2018 Evan R. Schieber v1 5 of 5