FILED: NEW YORK COUNTY CLERK 12/23/ :26 AM INDEX NO /2016 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/23/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 12/23/ :26 AM INDEX NO /2016 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/23/2016 llsupreme COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Index No.: /16 (Reed, J.) -against- Plaintiffs, Motion Seq. 3 LIFE MEDICAL TECHNOLOGIES, INC., Defendant. AFFIRMATION OF ALEXANDER D. TRIPP IN SUPPORT OF MOTION TO QUASH AND OF GOOD FAITH ALEXANDER TRIPP, an attorney admitted to practice law before the courts of the State of New York, hereby affirms under penalty of perjury as follows: 1. I am the principal of the Law Firm of Alexander D. Tripp, P.C., and attorney for Plaintiffs, Event Cardio Group, Inc. ( ECGI ), and Efil Sub ECG, Inc. ( Efil ). I submit this Affirmation in support of Plaintiffs motion to quash the notices of deposition and subpoenas duces tecum and ad testificandum served by Defendant, Life Medical Technologies, Inc. ( LMT ), and to inform the Court of my good-faith attempts to resolve this dispute prior to making this motion. 2. I am familiar with the facts and circumstances set forth below based on my personal knowledge and the documents described below. 3. On December 12, 2016, I received an from Defendant s counsel attaching notices of deposition for John Bentivoglio, Gary Blom, Nick Bozza and Vincent McGill and with Subpoenas for Richard Glaser, Frank Sgro and Julie Singleton. Later that day, I received another from Defendant s counsel with revised notices of deposition and subpoenas for the same individuals. Copies of those revised notices of deposition 1 of 29

2 and subpoenas are attached. 1 It is my understanding that, by serving the second set of documents, Defendant s counsel withdrew the first documents and replaced them with the second documents directed at the same parties. 4. The Law Firm of Alexander D. Tripp, P.C. (the Firm ), represents ECGI and Efil in this action. It does not represent any of the individuals the Defendant seeks to examine. Apart from Gary Blom, none of the individuals to whom the subpoenas and notices of deposition are directed is an officer, director or employee of either ECGI or Efil. The notice of deposition for Mr. Blom is directed at his as an individual and the Firm does not represent Gary Blom as an individual. 5. In addition, the Subpoenas and Notices of Deposition improperly designate the examinations t0 take place at my firm s offices, to which I did not agree. 6. On December 13, 2016, I rejected the subpoenas and notices of deposition and informed Defendant s counsel by that my firm did not represent any of the parties the Defendant sought to examine In a good-faith attempt to resolve this dispute, I then spoke by telephone with Robert Hantman, the principal of Defendant s law firm, and informed him that the subpoenas and deposition notices were improper and should be withdrawn. 8. On December 19, 2016, I ed Mr. Hantman and asked if he agreed to withdraw the subpoenas and document requests. 3 He responded that he need[ed] to check with client. I then notified him that, if the notices of deposition and subpoenas 1 Copies of the notices of deposition for John Bentivoglio, Gary Blom, Nick Bozza and Vincent McGill are attached as exhibits A-D. Copies of the subpoena for Richard Glaser, Frank Sgro and Julie Singleton are attached as exhibits E-G. 2 A copy of that December 13, is attached as Exhibit H. 3 A copy of that December 19, is attached as Exhibit I. 2 2 of 29

3 were not withdrawn, Plaintiffs would move for a protective order and to quash.4 As of the date of this Affirmation, I have not received a response from Defendant's counsel agreeing or refusing to withdraw the subpoenas and notices of deposition. Dated: New York, New York December 23, ,... ALEXANDER D. TRIPP 4Jd. 3 3 of 29

4 EXHIBIT A 4 of 29

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 NOTICE OF DEPOSITION -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X SIRS: PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony upon oral examination will be taken of John Bentivoglio before a notary public who is not an attorney or 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 because of interest or because of consanguinity or affinity to any party herein at the offices of Plaintiff s counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 12 th of January, 2017 at 10:00 a.m. or on any other such date mutually agreed upon by counsel, continuing until complete with respect to evidence material and necessary in the prosecution or defense of this action. PLEASE TAKE FURTHER NOTICE that the deposition of Mr. Bentivoglio will focus on his knowledge of the underlying facts and issues in this case prior to and after the filing of this lawsuit. PLEASE TAKE FURTHER NOTICE that the witness shall bring with her to the deposition any and all non-privileged documents which relate to, refer to, evidence or concern the subject matter of this litigation, including but not limited to any document, bank account statement, financial 5 of 29

6 record, draft, note, memorandum, and any communication relating to Plaintiffs Event Cardio Group Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES To: Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York PH: FX: Attorneys for Plaintiff By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY PH: FX: Attorneys for Life Medical Technologies, Inc. 6 of 29

7 EXHIBIT B 7 of 29

8 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 NOTICE OF DEPOSITION -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X SIRS: PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony upon oral examination will be taken of Gary Blom before a notary public who is not an attorney or 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 because of interest or because of consanguinity or affinity to any party herein at the offices of Plaintiff s counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 13th of January, 2017 at 10:00 a.m. or on any other such date mutually agreed upon by counsel, continuing until complete with respect to evidence material and necessary in the prosecution or defense of this action. PLEASE TAKE FURTHER NOTICE that the deposition of Mr. Blom will focus on his knowledge of the underlying facts and issues in this case prior to and after the filing of this lawsuit. PLEASE TAKE FURTHER NOTICE that the witness shall bring with her to the deposition any and all non-privileged documents which relate to, refer to, evidence or concern the subject matter of this litigation, including but not limited to any document, bank account statement, financial record, draft, note, memorandum, and any communication relating to Plaintiffs Event Cardio Group 8 of 29

9 Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES To: Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York PH: FX: Attorneys for Plaintiff By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY PH: FX: Attorneys for Life Medical Technologies, Inc. 9 of 29

10 EXHIBIT C 10 of 29

11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 NOTICE OF DEPOSITION -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X SIRS: PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony upon oral examination will be taken of Nicholas Bozza before a notary public who is not an attorney or 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 because of interest or because of consanguinity or affinity to any party herein at the offices of Plaintiff s counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 16 th of January, 2017 at 10:00 a.m. or on any other such date mutually agreed upon by counsel, continuing until complete with respect to evidence material and necessary in the prosecution or defense of this action. PLEASE TAKE FURTHER NOTICE that the deposition of Mr. Bozza will focus on his knowledge of the underlying facts and issues in this case prior to and after the filing of this lawsuit. PLEASE TAKE FURTHER NOTICE that the witness shall bring with her to the deposition any and all non-privileged documents which relate to, refer to, evidence or concern the subject matter of this litigation, including but not limited to any document, bank account statement, financial record, draft, note, memorandum, and any communication relating to Plaintiffs Event Cardio Group 11 of 29

12 Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES To: Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York PH: FX: Attorneys for Plaintiff By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY PH: FX: Attorneys for Life Medical Technologies, Inc. 12 of 29

13 EXHIBIT D 13 of 29

14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 NOTICE OF DEPOSITION -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X SIRS: PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony upon oral examination will be taken of Vince McGill before a notary public who is not an attorney or 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 because of interest or because of consanguinity or affinity to any party herein at the offices of Plaintiff s counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 18 th of January, 2017 at 10:00 a.m. or on any other such date mutually agreed upon by counsel, continuing until complete with respect to evidence material and necessary in the prosecution or defense of this action. PLEASE TAKE FURTHER NOTICE that the deposition of Mr. McGill will focus on his knowledge of the underlying facts and issues in this case prior to and after the filing of this lawsuit. PLEASE TAKE FURTHER NOTICE that the witness shall bring with her to the deposition any and all non-privileged documents which relate to, refer to, evidence or concern the subject matter of this litigation, including but not limited to any document, bank account statement, financial record, draft, note, memorandum, and any communication relating to Plaintiffs Event Cardio Group 14 of 29

15 Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES To: Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York PH: FX: Attorneys for Plaintiff By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY PH: FX: Attorneys for Life Medical Technologies, Inc. 15 of 29

16 EXHIBIT E 16 of 29

17 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 SUBPEONA -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X TO: Richard Glaser c/o Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York WE COMMAND that all business and excuses being set aside (i) Richard Glaser is required to appear and attend a deposition upon oral examination in connection with the above-referenced matter at the offices of Plaintiffs counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 19th day of January, 2017 at 10:00 a.m, and at any recessed or adjourned date thereof, to give testimony in this action on behalf of Defendant Life Medical Technologies, and (ii) Richard Glaser is required to produce for inspection and copying at the offices of Hantman & Associates, 1120 Avenue of the Americas, 4 th Floor, New York, New York 10036, on or before January 9, 2017, or 20 days from service upon you of this subpoena, whichever is later, all documents Richard Glaser intends to rely on at his deposition as well as all documents relating to Plaintiffs Event Cardio Group Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. If the documents to be produced 17 of 29

18 pursuant to this subpoena are to be produced on the date of the deposition, then the deponent is to bring the documents to the deposition. Pursuant to CPLR 3101(a)(4), the circumstances and/or reasons such disclosure is sought or required is that Richard Glaser has information pertinent to the facts and allegations contained in the Complaint and Counterclaim filed in this action. The Complaint seeks damages due to Defendants alleged breach of contract. A copy of the Verified Complaint with exhibits thereto is available for public viewing on the New York State Court s E-Filing (NYSCEF) website. Failure to comply with this Subpoena is punishable as a contempt of Court and shall make you liable to the person on whose behalf this Subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY (212) Attorneys for Defendants Life Medical Technologies, Inc. 18 of 29

19 EXHIBIT F 19 of 29

20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 SUBPEONA -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X TO: Frank Sgro c/o Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York WE COMMAND that all business and excuses being set aside (i) Frank Sgro is required to appear and attend a deposition upon oral examination in connection with the above-referenced matter at the offices of Plaintiffs counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 20th day of January, 2017 at 10:00 a.m, and at any recessed or adjourned date thereof, to give testimony in this action on behalf of Defendant Life Medical Technologies, and (ii) Frank Sgro is required to produce for inspection and copying at the offices of Hantman & Associates, 1120 Avenue of the Americas, 4 th Floor, New York, New York 10036, on or before January 9, 2017, or 20 days from service upon you of this subpoena, whichever is later, all documents Frank Sgro intends to rely on at his deposition as well as all documents relating to Plaintiffs Event Cardio Group Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. If the documents to be produced pursuant to this 20 of 29

21 subpoena are to be produced on the date of the deposition, then the deponent is to bring the documents to the deposition. Pursuant to CPLR 3101(a)(4), the circumstances and/or reasons such disclosure is sought or required is that Frank Sgro has information pertinent to the facts and allegations contained in the Complaint and Counterclaim filed in this action. The Complaint seeks damages due to Defendants alleged breach of contract. A copy of the Verified Complaint with exhibits thereto is available for public viewing on the New York State Court s E-Filing (NYSCEF) website. Failure to comply with this Subpoena is punishable as a contempt of Court and shall make you liable to the person on whose behalf this Subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY (212) Attorneys for Defendants Life Medical Technologies, Inc. 21 of 29

22 EXHIBIT G 22 of 29

23 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EVENT CARDIO GROUP INC. and EFIL SUB OF ECG, INC., Plaintiff, Index No /2016 SUBPEONA -against- LIFE MEDICAL TECHNOLOGIES, INC., Defendants X TO: Julie Singleton c/o Alexander Tripp, Esq. Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York WE COMMAND that all business and excuses being set aside (i) Julie Singleton is required to appear and attend a deposition upon oral examination in connection with the above-referenced matter at the offices of Plaintiff s counsel, the Law Firm of Alexander D. Tripp, P.C., 928 Broadway, Suite 1000, New York, New York beginning on the 23rd day of January, 2017 at 10:00 a.m, and at any recessed or adjourned date thereof, to give testimony in this action on behalf of Defendant Life Medical Technologies, and (ii) Julie Singleton is required to produce for inspection and copying at the offices of Hantman & Associates, 1120 Avenue of the Americas, 4 th Floor, New York, New York 10036, on or before January 9, 2017, or 20 days from service upon you of this subpoena, whichever is later, all documents Julie Singleton intends to rely on at her deposition as well as all documents relating to Plaintiffs Event Cardio Group Inc. and Efil Sub of ECG, Inc. and Defendant Life Medical Technologies, Inc., specifically relating to Plaintiffs ability, intent, and plan to distribute Life Medical Technologies, Inc. s BreastCare Device. If the documents to be produced 23 of 29

24 pursuant to this subpoena are to be produced on the date of the deposition, then the deponent is to bring the documents to the deposition. Pursuant to CPLR 3101(a)(4), the circumstances and/or reasons such disclosure is sought or required is that Julie Singleton has information pertinent to the facts and allegations contained in the Complaint and Counterclaim filed in this action. The Complaint seeks damages due to Defendants alleged breach of contract. A copy of the Verified Complaint with exhibits thereto is available for public viewing on the New York State Court s E-Filing (NYSCEF) website. Failure to comply with this Subpoena is punishable as a contempt of Court and shall make you liable to the person on whose behalf this Subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply. Dated: New York, New York December 12, 2016 HANTMAN & ASSOCIATES By: /s/ Robert J. Hantman Robert J. Hantman, Esq Avenue of the Americas, 4 th Floor New York, NY (212) Attorneys for Defendants Life Medical Technologies, Inc. 24 of 29

25 EXHIBIT H 25 of 29

26 Depositions Subject: Depositions From: Alexander Tripp Date: 12/13/16, 1:30 PM To: "Esq. Robert J. Hantman" CC: Ariel Govan Dear Mr. Hantman: It's not clear why your office ed the documents to me yesterday afternoon. Were these drafts of deposition notices and non-party subpoenas? Were these courtesy copies? If this was an attempt at service, Plaintiffs reject the service. I'm attaching copies of the rejected documents. I understand you withdrew the first set of documents, all of which was replaced by the second set. If my understanding is wrong, please inform me immediately. Any attempt at service is improper because I do not represent any of the deponents personally and I have not agreed to accept service on their behalf. Also, Singleton, Sgro, Glaser, McGill, Bozza and Bentivoglio are not parties to this action nor are they officers, directors or employees of a party, so an attempt to serve them by service on my firm is improper. If you are seeking to depose an officer or director of either Plaintiff, the corporation designates the party to testify on its behalf, so any attempt to specify an individual deponent testifying on behalf of a corporation is improper at this point in discovery. I'm also astonished that you presumed to notice the depositions at my office without an agreement with me. In case there is any doubt, I do not agree to hold any of the depositions at my offices. Please confirm by close of business tomorrow that all the deposition notices and subpoenas ed to me yesterday have been withdrawn, or we will address our concerns to the Court. Sincerely, Alex Tripp Alexander Tripp Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York tripp@adtlawfirm.com t f Attachments: Notice of Deposition (Bentivoglio).pdf Notice of Deposition (Blom).pdf Notice of Deposition (Bozza).pdf Notice of Deposition (McGill).pdf Subpoena (Glaser).pdf Subpoena (Sgro).pdf Subpoena (Singleton).pdf 123 KB 123 KB 123 KB 123 KB 125 KB 125 KB 125 KB 1 of 1 26 of 29

27 EXHIBIT I 27 of 29

28 Re: subpoenas and notices of deposition Subject: Re: subpoenas and notices of deposition From: Alexander Tripp Date: 12/19/16, 3:30 PM To: "Esq. Robert J. Hantman" CC: Ariel Govan If I do not receive written confirmation by noon tomorrow that all the subpoenas and notices of deposition are withdrawn, we will be moving to quash and for a protective order. Alexander Tripp Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York tripp@adtlawfirm.com t f On Dec 19, 2016, at 3:22 PM, Esq. Robert J. Hantman <rhantman@hantmanlaw.com> wrote: Need to check with client as both parties still have monetary claims against each other Robert Hantman Hantman & Associates rhantman@hantmanlaw.com Avenue of Americas 4th Fl New York, NY Cell Offices NY,Miami,LA from my Verizon, Samsung Galaxy smartphone Original message From: Alexander Tripp <tripp@adtlawfirm.com> Date: 12/19/16 3:02 PM (GMT-05:00) To: "Esq. Robert J. Hantman" <rhantman@hantmanlaw.com> Cc: Ariel Govan <agovan@hantmanlaw.com> Subject: subpoenas and notices of deposition Dear Mr. Hantman, Are Defendant's subpoenas and notices of deposition withdrawn? -Alex Alexander Tripp Law Firm of Alexander D. Tripp, P.C. 928 Broadway, Suite 1000 New York, New York tripp@adtlawfirm.com t f of 2 28 of 29

29 Re: subpoenas and notices of deposition 2 of 2 29 of 29