FILED: NEW YORK COUNTY CLERK 03/06/ :01 PM INDEX NO /2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/07/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 120 EAST 56TH STREET, L.L.C., Plaintiff, -against- ASANDA, INC. and GENE FRISCO, Index No /2016 AFFIRMATION IN SUPPORT OF MOTION TO QUASH SUBPOENA Defendants. THOMAS E. RACCUIA, an attorney duly admitted to practice before the Courts of the State of New York, affirms the truth of the following, under the penalties of perjury: 1. I am an associate of the law firm of Cohen Seglias Pallas Greenhall & Furman, P.C. ( Cohen Seglias ), attorneys for non-parties WJE Engineers & Architects, P.C. ( WJE ) and Eric Hammarberg. Cohen Seglias does not represent either of the parties in this action, nor is the firm a party to this action, but we represent the plaintiff herein, 120 East 56th Street, L.LC. ( Plaintiff ) in related litigation, (Asanda Park Avenue, Inc. v. 120 East 56th Street, LLC, New York County Supreme Court No /2016), and as such I am familiar with the facts and circumstances of this matter based upon discussions with Plaintiff and via the files maintained at my office. 2. I submit this affirmation in support of the instant Order to Show Cause, seeking a Order: (a) (b) pursuant to CPLR 2304 and 310, quashing or modifying the nonjudicial Subpoena Duces Tecum served by Defendants on Cohen Seglias; pursuant to CPLR 2304 and 3103, quashing or modifying the nonjudicial Subpoena Duces Tecum served by Defendants on non-parties WJE Engineers & Architects, P.C. ( WJE ), the non-judicial Subpoena Ad Testificandum served by Defendants on WJE, the non-judicial of 12

2 Subpoena Duces Tecum served by Defendants on Mr. Hammarberg, and the non-judicial Subpoena Ad Testificandum served by Defendants on Mr. Hammarberg; (c) such other and further relief as this Court may deem just and proper. 3. The Court should quash the subpoena as the document demands are overly broad, harassing, burdensome and contumacious and not designed to lead to evidence admissible at trial. Indeed, this entire subpoena for documents is palpably improper. 4. A copy of the non-judicial subpoena directed at Cohen Seglias is annexed as Exhibit A. Copies of the non-judicial subpoenas directed at WJE and Mr. Hammarberg are annexed hereto collectively as Exhibit B. 5. In accordance with CPLR 2304, I requested that counsel for the Defendants withdraw each of the aforementioned subpoenas. To date, counsel has refused to withdraw the subpoenas. Copies of the good faith correspondence are annexed hereto collectively as Exhibit C. Background and Related Litigation 6. The plaintiff in this matter, 120 East 56th Street, LLC ( 120 Owner ), is the owner of the building at 120 East 56 th Street, New York, New York (the 120 Building ). 7. The defendant herein, Asanda, Inc. ( Asanda ) is the parent company of Asanda Park Avenue, Inc., ( Asanda Park ) a commercial tenant in the 120 Building. The defendant herein, Gene Frisco, is a principal of both Asanda and Asanda Park Owner and Asanda Park are engaged in litigation against each other in two separate New York State Courts. 120 Owner seeks money damages and eviction of Asanda Park in the Landlord-Tenant Court, in the action captioned as 120 East 56th Street, L.L.C. v. Asanda Park Avenue, Inc., Index No. LT /NY. Asanda Park seeks money damages, 2 of 12

3 rescission, and declaratory relief in the Supreme Court, in the action captioned Asanda Park Avenue, Inc. and Gene Frisco v. 120 East 56th Street, L.L.C., Index. No / Asanda and Asanda Park have both filed for bankruptcy protection under chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York, in the matters captioned In re Asanda, Inc., Case No JLG and In re Asanda Park Avenue, Inc., Case No JLG. The Asanda entities have removed Asanda Park Avenue, Inc. and Gene Frisco v. 120 East 56th Street, L.L.C., Index. No /2016 to federal court as part of their bankruptcy proceedings. The matter herein is subject to an automatic stay, because defendant, Asanda, Inc., is a party to the aforementioned bankruptcy proceeding. As such, the subpoenas are subject to the stay and require no response. 10. In the matter herein, 120 Owner seeks to enforce guarantees executed by Asanda and Gene Frisco to pay Asanda Park s rent under its lease in the 120 Building. 11. Cohen Seglias is counsel to 120 Owner in both 120 East 56th Street, L.L.C. v. Asanda Park Avenue, Inc., Index No. LT /NY ( Landlord-Tenant Action ) and Asanda Park Avenue, Inc. and Gene Frisco v. 120 East 56th Street, L.L.C., Index. No /2016, ( Supreme Court Action ) but does not represent 120 Owner is the matter herein, nor is it a party to this matter. 12. With the exception of the bankruptcy proceedings, the Law Offices of Walters & Walters represent the Asanda entities and Gene Frisco in all of the above-referenced actions. Thus, the attorney who issued the improper non-judicial subpoena on Cohen Seglias was well aware that Cohen Seglias represents 120 Owner in two matters adverse to his client. In addition, Mr. Hammarberg, in his capacity as an employee of WJE, signed an affidavit which was submitted in both the Landlord Tenant Action and the Supreme Court action. Thus, the Walters 3 of 12

4 firm was also aware that WJE and Mr. Hammarberg, in their capacity as consultants to 120 Owner, enjoyed privileged communications with Cohen Seglias. See, United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). The Cohen Seglias Subpoena 13. In addition to the naked impropriety of issuing a subpoena to an adverse party s attorneys rather than serving document demands on the actual party to the case, the demands contained in the subject subpoena were themselves palpably improper. 14. The first demand requests that Cohen Seglias produce: electronic form sent to or received from 425 Park Owner, LLC or its owners, representatives, employees, attorneys, or agents of concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. 15. Objection: This demand is overly broad, harassing, burdensome and contumacious. Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. 16. The second demand requests that Cohen Seglias produce: electronic form sent to or received from the any person or entity (other than 120 East 56th Street, LLC) concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. 4 of 12

5 17. Objection: This demand is overly broad, harassing, burdensome and contumacious. Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges The WJE Subpoenas 18. The demands contained in the subpoenas directed at WJE were palpably improper. The first demand in the subpoena duces tecum requests that WJE produce: electronic form sent to or received from 120 East 56th Street, LLC or its owners, representatives, employees, attorneys, or agents of concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. For the purposes of this subpoena, documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 19. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. 20. The second demand in the subpoena duces tecum requests that WJE produce: electronic form sent to or received from the any person or entity (other than 120 East 56th Street, LLC or its attorneys) concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other 5 of 12

6 similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. 21. Objection: This demand is overly broad, harassing, burdensome and 22. The third demand in the subpoena duces tecum requests that WJE produce: electronic form sent to or received from any person or entity concerning demolition, construction, and/or excavation on the real property commonly known as 425 Park Avenue, New York, New York. For the purposes of this subpoena, documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 23. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. 24. The Fourth demand in the subpoena duces tecum requests that WJE produce: electronic form sent to or received from the any person or entity concerning any excavation performed on the real property commonly known as 425 Park Avenue, New York, New York. For the purposes of this subpoena, 6 of 12

7 documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 25. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. 26. The first demand in the subpoena ad testificandum requests that WJE produce: [Documents related to] The demolition, excavation, and construction at the real property commonly known as 425 Park Avenue; and 27. Objection: This demand is overly broad, harassing, burdensome and 28. The second demand in the subpoena ad testificandum requests that WJE produce: [Documents related to] The erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. 29. Objection: This demand is overly broad, harassing, burdensome and 7 of 12

8 The Hammarberg Subpoenas 30. The demands contained in the subpoenas directed at Mr. Hammarberg were palpably improper. The first demand in the subpoena duces tecum requests that Mr. Hammarberg produce: electronic form sent to or received from 120 East 56th Street, LLC or its owners, representatives, employees, attorneys, or agents of concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. For the purposes of this subpoena, documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 31. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. produce: 32. The second demand in the subpoena duces tecum requests that Mr. Hammarberg electronic form sent to or received from the any person or entity (other than 120 East 56th Street, LLC or its 8 of 12

9 attorneys) concerning the erection of scaffolding, overhead protection, sidewalk bridge(s) or the erection of any other similar structure on the real property (or structures or building situated thereon) commonly known as 120 East 56th Street, New York, New York. 33. Objection: This demand is overly broad, harassing, burdensome and produce: 34. The third demand in the subpoena duces tecum requests that Mr. Hammarberg electronic form sent to or received from any person or entity concerning demolition, construction, and/or excavation on the real property commonly known as 425 Park Avenue, New York, New York. For the purposes of this subpoena, documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 35. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. produce: 36. The Fourth demand in the subpoena duces tecum requests that Mr. Hammarberg 9 of 12

10 electronic form sent to or received from the any person or entity concerning any excavation performed on the real property commonly known as 425 Park Avenue, New York, New York. For the purposes of this subpoena, documents prepared for, or correspondence sent to or from the attorneys for 120 East 56th Street, LLC after June 12, 2016 may be excluded herefrom. 37. Objection: This demand is overly broad, harassing, burdensome and Moreover, it seeks documents and information protected by the attorney-client and attorney-work product privileges. 38. The Subpoena ad testificandum directed at Mr. Hammarberg does not set forth specific document demands. However, to the extent that it seeks the same documents demanded in the Subpoena duces tecum directed at Mr. Hammarberg, the objections set forth above against that subpoena are asserted with the same force and effect against the Subpoena ad testificandum. Legal Argument 39. As set forth above, the subject subpoenas with their demands for documents are overly broad, harassing, burdensome and contumacious on their face. The subpoenas are palpably improper. For example, general demands for documents that are not sufficiently specific are improper. Engle v. Hagedorn, 170 A.d.2d 301, 566 N.Y.S.2d 25, 26 (1st Dep t 1991). Here, the same may not be said; the subpoenas seek all of everything, which would include matters protected by the attorney-client and attorney-work product privileges. Corcoran v. Peat, Marwick, Mitchell & Co., 151 A.D.2d 443, 445, 542 N.Y.S.2d 642, of 12

11 (1989)(attorney's work product is absolutely exempt from discovery). WJE and Mr. Hammarberg are also subject to the privileges. United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). The document requests doubtless also touch upon matters concerning other tenants of 120 East 56 th Street bearing absolutely nothing to do with the dispute between the parties to this action. None of which is relevant here and none of which should be in the hands of the Defendants for any reason. 40. Moreover, the Subpoena contains no showing of the basis for the demand including why the information is necessary and that the information is not available from other sources. Non-judicial subpoenas on non-parties should describe the required documents with clarity and seek only documents that are directly relevant to the issues in the case. Golden Mark Maintenance Ltd. v. Alarcon, 265 A.d.2d 377, 696 N.Y.S.2d 515, 516 (2nd Dept. 1999)(Subpoenas properly quashed where the information sought was irrelevant.) Moreover, non-judicial subpoenas must comply with the reasonable standards of the law on such matters as privacy. Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 662 N.Y.S.2d 450, (1st Dept. 1997)(A non-judicial subpoena for a broad set of documents, that are not specified, that will require a review of huge numbers of files to locate any potentially relevant documents, that is in the nature of fishing expedition, will not be enforced, only targeted subpoenas seeking specific documents directly relevant to this issues in a case are enforceable.); In re New York County Data Entry Worker Product Liability Litigation, 1994 WL (Sup. Ct. 1994) (Disclosure from a non-party will only be permitted where the information is not otherwise available but where the definitions result in a request for "every scrap of paper" regardless of relevancy to the action and the document subpoena does not seeks documents directly relevant to 11 of 12

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