FILED: NEW YORK COUNTY CLERK 06/07/2011 INDEX NO. 650188/2007 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/07/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------X Index No. 650188/2007 JAMES L. MELCHER, IAS Part 54 Plaintiff, Hon. Shirley Werner Kornreich -against- GREENBERG TRAURIG LLP and LESLIE D. CORWIN, Defendants. ------------------------------------------------------------X PLAINTIFF S FIRST REQUEST TO ADMIT TO DEFENDANTS PLEASE TAKE NOTICE THAT pursuant to CPLR 3123, Defendants Greenberg Traurig LLP and Leslie D. Corwin are hereby requested to furnish to the undersigned counsel for plaintiff, no later than June 28, 2011, a written admission of the facts set forth below. PLEASE TAKE FURTHER NOTICE that CPLR 3123(a) requires Defendants to make admissions as to matters which are within their knowledge or which can be ascertained by them upon reasonable inquiry PLEASE TAKE FURTHER NOTICE of the penalty for unreasonable denials of such matters set forth in CPLR 3123(c). PLEASE TAKE FURTHER NOTICE that the exhibits to the First Amended Complaint, previously provided to Defendants, referred to herein, are provided again; also attached hereto are Exhibits A, B, C & D.
DEFINITIONS A. The term Defendant means, as applied to defendant Greenberg Traurig, any shareholder, partner, associate, counsel, paralegal, clerk, employee, or other person affiliated with Greenberg Traurig. B. The term the purported May 21, 1998 Amendment means the document identified as Exhibit 3 to the First Amended Complaint. C. The term Complaint Exhibit means the Exhibit with the corresponding number identified in the First Amended Complaint. D. The term the Apollo Management Action means the action entitled Melcher v. Apollo Medical Fund Management LLC, et ano, Index No. 604047/2003 (Sup.Ct.N.Y.Co. 2003). E. The term Apollo Management means Apollo Medical Fund Management LLC. REQUESTS FOR ADMISSION 1. Defendant Corwin attended a meeting at the offices of Patterson Belknap Webb & Tyler LLP on the morning of January 27, 2004; also attending were Brandon Fradd, James Melcher, Alan Gettner and Jeffrey A. Jannuzzo. 2. Defendant Corwin stated at the January 27, 2004 meeting, in words or in substance, that he had confirmed the authenticity of the purported May 21, 1998 Amendment with the lawyer who had drafted it. 3. No Defendant communicated with Jack Governale, Esq. prior to the -2-
January 27, 2004 meeting on the subject of the authenticity of the purported May 21, 1998 Amendment. 4. Prior to the January 27, 2004 meeting, neither Jack Governale, Esq., nor any individual or lawyer acting on his behalf, had ever communicated to any Defendant that Mr. Governale believed that the purported May 21, 1998 Amendment was either authentic or genuine. 5. Neither Jack Governale, Esq., nor any individual or lawyer acting on his behalf, ever communicated to any Defendant that Mr. Governale believed that the purported May 21, 1998 Amendment was either authentic or genuine. 6. No Defendant communicated with James Beckwith, Esq. prior to the January 27, 2004 meeting. 7. Neither James Beckwith, Esq., nor any individual or lawyer acting on his behalf, ever communicated to any Defendant that Mr. Beckwith believed that the purported May 21, 1998 Amendment was either authentic or genuine. 8. Defendants received Complaint Exhibit 2 by fax on the afternoon of January 27, 2004. 9. Defendants sent Complaint Exhibit 2 to Brandon Fradd on January 27, 2004, by fax. Complaint Exhibit 13, Complaint Exhibit 18 at 7. 10. Brandon Fradd faxed a letter to Jack Governale, Esq. on January 28, 2004 concerning the purported May 21, 1998 Amendment, prior to the heating or burning of the purported May 21, 1998 Amendment. Complaint Exhibit 18 at 7. -3-
11. Defendant Corwin, Caroline Heller, or another person affiliated with Greenberg Traurig informed Brandon Fradd, on either January 27 or the morning of January 28, 2004, in words or in substance, that counsel for plaintiff had requested that the original of Complaint Exhibit 3 be produced for the purpose of forensic testing of such original. 12. Brandon Fradd was personally served with the Summons and First Amended Complaint in the Apollo Management Action on January 27, 2004. See Exhibit C hereto. 13. Brandon Fradd informed Defendants on or about January 27, 2004 that he had been served with the Summons and First Amended Complaint in the Apollo Management Action. 14. Defendants received the email dated February 1, 2004, Complaint Exhibit 15, shortly after it was transmitted by Brandon Fradd, and in any event no later than February 2, 2004. 15. No later than February 9, 2004, Defendants were aware, or had been informed of, the following facts set forth in Paragraph 2 of the email from Brandon Fradd dated February 1, 2004, Complaint Exhibit 15: A. That the first page of the purported May 21, 1998 Amendment was totally destroyed on or about January 28, 2004. B. That the second page of the purported May 21, 1998 Amendment had been subjected to heat on the kitchen stove of Mr. Fradd on or about January 28, 2004. C. That the second page of the purported May 21, 1998 Amendment bearing the original signature of Brandon Fradd, had been dried in the microwave oven by Mr. Fradd on or about January 28, 2004. -4-
16. Brandon Fradd informed Defendants or Defendants were aware that the purported burning of the purported May 21, 1998 Amendment occurred in Mr. Fradd s apartment at 68 Jane Street, New York, NY. 17. In January and February 2004, Mr. Jorge Guzman was employed either by Brandon Fradd or a company owned or controlled by Brandon Fradd, and the place where his employment duties were performed was Mr. Fradd s apartment at 68 Jane Street, New York, NY. 18. Mr. Jorge Guzman informed Defendants that he was unaware of any burning involving the purported May 21, 1998 Amendment. 19. On or about February 10, 2004, Defendants sent the then-existing original of the purported May 21, 1998 Amendment to Valery Aginsky or Riley & Welch Associates. See Complaint Exhibit 11. 20. Defendants requested that Valery Aginsky or Riley & Welch Associates test the purported May 21, 1998 Amendment on an expedited basis. 21. Defendants knew that Riley & Welch would charge a higher fee for expedited treatment. 22. The then-existing original of the purported May 21, 1998 Amendment sent to Valery Aginsky or Riley & Welch Associates, referred to in the preceding paragraphs, consisted of an original second page, and a photocopy of the first page. See Exhibit D hereto. 23. Defendants knew that then-existing original of the purported May -5-
21, 1998 Amendment sent to Valery Aginsky or Riley & Welch Associates contained a photocopy of the first page, and not the original of the first page. 24. Prior to being informed of the results of the forensic tests performed by Valery Aginsky or Riley & Welch Associates, Defendants did not inform either Valery Aginsky or Riley & Welch Associates that the document sent by Defendants did not contain an original of the first page. 25. Prior to being informed of the results of the tests performed by or Valery Aginsky or Riley & Welch Associates, Defendants did not inform either Valery Aginsky or Riley & Welch Associates that the document sent by Defendants had been heated on or about January 28, 2004; nor that it had been dried in a microwave oven on or about January 28, 2004; nor that the original first page of the document no longer existed; nor that the original first page of the document had been totally destroyed on or about January 28, 2004. 26. Complaint Exhibit 11 is a true copy of a report by Riley & Welsh Associates dated February 18, 2004, and was received by Defendants by fax on February 18, 2004. 27. The written report of Valery Aginsky or Riley & Welsh Associates referred to in the preceding paragraph stated that on or about February 12, 2004, Valery Aginsky or Riley & Welsh Associates tested the document sent by Defendants. 28. Defendants were informed no later than February 13, 2004 of the results of the tests performed by Valery Aginsky or Riley & Welsh Associates on the -6-
document sent by Defendants. 29. The information that Defendants received from Valery Aginsky or Riley & Welch no later than February 13, 2004 regarding the results of his or its tests was the same, in substance, as the results reported to Defendants in writing in the report dated February 18, 2004. 30. Defendants drafted the affidavit of Brandon Fradd that was sworn to by Mr. Fradd on February 13, 2004, Complaint Exhibit 25. 31. Defendants were informed of the results of the tests performed by Valery Aginsky or Riley & Welch Associates on the document sent by Defendants, prior to the time that Mr. Fradd swore to the affidavit dated February 13, 2004. 32. Defendants submitted the February 13, 2004 affidavit of Mr. Fradd in connection with the motion to dismiss filed by Defendants on behalf of their clients in the Apollo Management Action. 33. Plaintiff moved by Order to Show Cause entered February 5, 2004 in the Apollo Management Action to compel Brandon Fradd and Apollo Management to produce the original of the purported May 21, 1998 Amendment for forensic testing. Complaint Exhibit 26. 34. In their capacity as counsel for Brandon Fradd and Apollo Management in the Apollo Management Actions, Defendants were served with the Order to Show Cause referred to in the preceding paragraph no later than February 9, 2004. 35. At the time that Defendants submitted the February 13, 2004-7-
affidavit of Brandon Fradd, Complaint Exhibit 25, Defendants knew that plaintiff was seeking an order compelling the production of the original of the purported May 21, 1998 Amendment for forensic testing. 36. Prior to February 13, 2004, Defendants were aware, or had been informed, that the client files for Apollo Management were in the custody of Jack Governale, Esq. (or the law firm with which he was then affiliated). 37. Prior to February 13, 2004, Defendants were aware, or had been informed, that the client files for Apollo Management had been transferred to Mr. Governale s custody (or the law firm with which he was affiliated) after he joined such law firm. 38. Prior to February 13, 2004, Defendants were aware, or had been informed, that the files kept or maintained by Jack Governale, Esq. (or any current or predecessor law firm with which he was affiliated) contained no record of the existence of the purported May 12, 1999 Amendment. 39. Prior to February 13, 2004, Defendants were aware, or had been informed, that the client files for Apollo Management contained no record of the existence of the purported May 21, 1998 Amendment. 40. Prior to February 13, 2004, Defendants were aware, or had been informed, that the client files for Apollo Management contained a copy of an amendment to the Apollo Management Operating Agreement dated May 13, 1998, and a transmittal letter concerning such amendment. Complaint Exhibit 19 & 20. -8-
41. Prior to February 13, 2004, Defendants were aware, or had been informed, that the following documents in the client files for Apollo Management contained a small-type computer identification number in the lower left-hand corner: Complaint Exhibits 19, 20 & 21. 42. Prior to February 13, 2004, Defendants were aware that the purported May 21, 1998 Amendment contained no computer identification number. 43. Both prior to February 13, 2004, and to this day, Defendants are unaware of any contract documents, contract amendments, or letters, in the client files of Apollo Management, created in the year 1998, that do not have a computer identification number. 44. The February 13, 2004 affidavit of Brandon Fradd, Complaint Exhibit 25, refers to the purported May 21, 1998 Amendment and attaches a copy of it as an exhibit to such affidavit. 45. On February 23, 2004, Defendant Corwin represented to Hon. Herman Cahn in open court that he or Defendant Greenberg Traurig held the original of the purported May 21, 1998 Amendment in escrow. See Complaint Exhibits 28 & 29. 46. On February 23, 2004, the first page of the original of the purported May 21, 1998 Amendment no longer existed. See Exhibit D. Cahn: 47. On February 23, 2004, defendant Corwin did not disclose to Justice A. that the first page of the original of the purported May 21, 1998 Amendment no longer existed. -9-
B. that the original of the purported May 21, 1998 Amendment had been either heated or burned. C. that the original of the purported May 21, 1998 Amendment had been dried in a microwave oven. 48. Defendants communicated by telephone with James Beckwith, Esq. on February 3, 2004; on the call were Defendant Corwin and a Greenberg Traurig associate. Complaint Exhibit 9. 49. Prior to the February 3, 2004 telephone call, Defendants were aware, or had been informed, that Brandon Fradd had spoken by telephone with James Beckwith, and had requested that Mr. Beckwith speak with Defendant Corwin or another lawyer at Defendant Greenberg Traurig. 50. Prior to the February 3, 2004 telephone call, Defendants requested that Brandon Fradd telephone Mr. Beckwith and that Mr. Fradd ask Mr. Beckwith to speak with Defendants. 51. Defendants sent James Beckwith the letter dated February 4, 2004, on or about February 4, 2004; and enclosed with the letter was the purported May 21, 1998 Amendment. Exhibit 9. 52. Prior to February 13, 2004, Mr. Beckwith informed Defendants that he had no recollection or knowledge of the purported May 21, 1998 Amendment. 53. Defendants drafted the March 12, 2004 affidavit of Brandon Fradd, and submitted such affidavit to the court in the Apollo Management Action. Complaint Exhibit 32. 54. Prior to March 12, 2004, Defendants were aware, or had been -10-
informed, that Brandon Fradd had spoken by telephone with James Beckwith, and had requested that Mr. Beckwith speak with Defendant Corwin or another lawyer at Defendant Greenberg Traurig. 55. Prior to March 12, 2004, Mr. Beckwith informed Defendants that he had no recollection or knowledge of the purported May 21, 1998 Amendment. 56. Prior to March 12, 2004, Mr. Beckwith informed Defendants that during the time frame of May 1998, Mr. Beckwith no longer drafted documents for Apollo Management and that the responsibility for doing so rested with his then partner, Jack Governale. 57. Subsequent to their February 4, 2004 letter, Defendants did not communicate in writing with Mr. Beckwith again until they sent him their February 6, 2006 letter, Complaint Exhibit 34. 58. The files of Defendant Greenberg Traurig do not reflect any telephone calls placed to James Beckwith by Defendants during 2004 or 2005, other than the telephone call of February 3, 2004. 59. Mr. Beckwith telephoned defendant Greenberg Traurig the same day that he received the foregoing February 6, 2006 letter, i.e., on February 7, 2006. Complaint Exhibit 35. 60. Defendants never drafted an affidavit for James Beckwith to submit regarding the purported May 21, 1998 Amendment. 61. Defendants never asked James Beckwith to submit an affidavit -11-
regarding the purported May 21, 1998 Amendment. 62. Defendants have stated under oath that the files of the County Clerk do not contain the following letters: A. Letter from Leslie D. Corwin to Hon. Herman Cahn dated May 25, 2004. B. Letter from Jeffrey A. Jannuzzo to Hon. Herman Cahn dated May 26, 2004. C. Letter from Leslie D. Corwin to Hon. Herman Cahn dated May 28, 2004. Exhibit 38 & 39. 63. Defendants submitted an affidavit from Valery Aginsky sworn to December 8, 2007 in the Apollo Management Action. Complaint Exhibit 56. 64. Prior to obtaining the affidavit from Valery Aginsky, Defendants did not disclose to Dr. Aginsky either: (a) the affidavit of Robert Malanga, P.E. sworn to December 3, 2006, Complaint Exhibit 53; nor (b) any video prepared by Mr. Malanga. 65. Defendants retained Mr. Eugene West, a retired F.D.N.Y. Fire Marshall, as an expert in the Apollo Management Action. Exhibit 69. 66. On October 24, 2008, in the presence of plaintiff s counsel and plaintiff s expert Robert Malanga, at the offices of Defendant Greenberg Traurig, Mr. West conducted a forensic examination of the original of the purported May 21, 1998 Amendment. 67. On October 24, 2008, Mr. West examined the purported May 21, 1998 Amendment both with the unaided eye, and with a 20x magnifying instrument hooked up to a laptop computer, into which he uploaded the images from the 20x magnifying instrument. -12-
68. On October 24, 2008, Mr. West found no evidence of soot, particulates, aerosols, or other evidence of combustion present on the purported May 21, 1998 Amendment. 69. The images uploaded by Mr. West to his computer, referred to in the preceding paragraphs, showed no evidence of soot, particulates, aerosols, or other evidence of combustion present on the purported May 21, 1998 Amendment. 70. Subsequent to the order of Justice Melvin Schweitzer setting a trial date for the Apollo Management Action, Defendants never requested Mr. West to testify as an expert for Defendants clients in the Apollo Management Action. See Complaint Exhibit 66. 71. Subsequent to his October 24, 2008 forensic examination of the purported May 21, 1998 Amendment, Mr. West declined to testify as an expert for Defendants clients in the Apollo Management Action. 72. Subsequent to the order of Justice Melvin Schweitzer setting a trial date for the Apollo Management Action, Defendants never requested Valery Aginsky to testify as an expert for Defendants clients in the Apollo Management Action. See Complaint Exhibit 66. 73. Prior to the trial in the Apollo Management Action, Valery Aginsky declined to testify as an expert for Defendants clients in the Apollo Management Action. 74. The document attached as Exhibit A hereto is a complete and genuine copy of a Referee s Report dated October 30, 2008 by Hon. Howard A. Levine. -13-
75. The document attached as Exhibit B hereto is a complete and genuine copy of an Order of the Surrogate s Court, New York County, dated October 1, 2009. 76. Subsequent to the issuance of the foregoing Referee s Report, Greenberg Traurig was discharged by its client(s) in the case in which the Report was rendered. for cause. 77. The discharge referred to in the foregoing paragraph was stated to be 78. The following exhibits annexed to either the Complaint, or the First Amendment Complaint, copies of which were previously provided to Defendants and are provided again herewith, are authentic and genuine copies of what they purport to be: Exhibit 1. First Amended Complaint Melcher vs. Apollo Management. Exhibit 2. Jannuzzo 1/27/2004 Letter. Exhibit 3. May 21, 1998 Amendment. Exhibit 4. James Melcher 1/2/2006 Affidavit. Exhibit 5. 12/7/2005 Deposition of Jack Governale, Esq. Exhibit 6. Decision 8/15/2006, Hon. Beverly Cohen. Exhibit 7. Corwin 12/28/2005 Affidavit (excerpts). Exhibit 8. Corwin 1/13/2006 Affidavit (excerpts). Exhibit 9. Corwin 2/4/2004 Letter to James Beckwith. Exhibit 10. 6/11/2007 Deposition of James Beckwith. Exhibit 11. 2/18/2004 Forensic Chemist Report to Corwin. Exhibit 12. 2/3/2004 Affidavit of Dr. Albert Lyter. Exhibit 13. Brandon Fradd 5/19/2004 Affidavit (excerpts). Exhibit 14. Affidavit of Service. Exhibit 15. Brandon Fradd Email 2/1/2004. Exhibit 16. 4/21/2004 Deposition of Brandon Fradd. Exhibit 17. 3/6/2006 Deposition of Jorge Guzmán. Exhibit 18. Governale 1/26/2005 Privilege Log (excerpts). Exhibit 19. Amendment Dated May 13, 1998. Exhibit 20. 5/8/1998 Transmittal Letter for above Amendment. -14-
Exhibit 21. Governale 1/28/1998 Letter. Exhibit 22. Fradd 11/30/2005 Affidavit. Exhibit 23. Katten Muchin Letter 3/28/2007. Exhibit 24. 2/17/2004 Dismissal Motion in Melcher v. Apollo Management Exhibit 25. 2/13/2004 Fradd Affidavit on above. Exhibit 26. Motion 2/5/2004 and Affidavits. Exhibit 27. Jannuzzo 2/23/2004 Letter. Exhibit 28. Corwin 2/14/2004 Letter. Exhibit 29. Corwin 3/18/2004 Letter Regarding Escrow. Exhibit 30. 1998 Operating Agreement (excerpts). Exhibit 31. James Melcher 3/7/2004 Affidavit (excerpts). Exhibit 32. Fradd 3/12/2004 Affidavit (excerpts). Exhibit 33. 12/5/2005 Deposition of Brandon Fradd (excerpts). Exhibit 34. Corwin 2/6/2006 Letter to Beckwith. Exhibit 35. Greenberg Traurig 2/7/2006 Email. Exhibit 36. Corwin 3/18/2004 Ltr. Exhibit 37. Dr. Albert Lyter 4/13/2004 Report and 5/13/2004 Aff. Exhibit 38. Corwin 7/29/2005 Affidavit (excerpts). Exhibit 39. Edmunds 7/29/2005 Affidavit. Exhibit 40. Plaintiff 12/20/2005 Cross-Motion. Exhibit 41. Jannuzzo 12/20/2005 Affidavit (excerpts). Exhibit 42. Wolf Block Time Records. Exhibit 43. Order to Show Cause 1/17/2006. Exhibit 44. Jannuzzo 1/12/2006 Affidavit. Exhibit 45. Corwin 1/26/2006 Letter. Exhibit 46. Jannuzzo 1/25/2006 Letter. Exhibit 47. 1/31/2006 Order. Exhibit 48. Corwin 3/8/2006 Letter to Justice Cahn. Exhibit 49. Corwin 1/17/2006 Letter. Exhibit 50. 3/8/2006 Order Granting ex Parte Stay. Exhibit 51. American Lawyer 3/1/2007 Article Exhibit 52. 12/5/2007 Order to Show Cause on motion to strike pleadings Exhibit 53. 12/3/2007 Affidavit of Robert Malanga, P.E. Exhibit 54. October 2007 video of Mr. Malanga s forensic tests. Exhibit 55. 11/30/07 Affidavit of Dr. Albert Lyter Exhibit 56. 12/8/07 Affidavit of Dr. Valery Aginsky Exhibit 57. 2/18/04 report of Dr. Valery Aginsky Exhibit 58. 4/21/04 video deposition of Brandon Fradd Exhibit 59. 4/30/09 Responses to Plaintiff s Requests for Admission Exhibit 60. 3/14/08 Plaintiff-Appellant s Brief (excerpts) Exhibit 61. 4/16/08 Defendants-respondents Brief (excerpts) Exhibit 62. 5/13/04 Affidavit of Dr. Albert Lyter -15-
Exhibit 63. Exhibit 64. Exhibit 65. Exhibit 66. Exhibit 67. Exhibit 68. Exhibit 69. Exhibit 70. Exhibit 71. Exhibit 72. Exhibit 73. Exhibit 74. Exhibit 75. Exhibit 76. Exhibit 77. Exhibit 78. Exhibit 79. Exhibit 80. Exhibit 81. Exhibit 82. Exhibit 83. Exhibit 84. 6/5/08 Decision of the First Department 9/17/07 Decision, Hon. Herman Cahn on plaintiff s motion to strike 12/18/08 Decision, Hon. Herman Cahn on Defendants Frye motion 2/17/09 Order of Hon. Melvin Schweitzer 2/5/09 Transcript of decision by Hon. Melvin Schweitzer 10/24/08 Plaintiff s Expert Disclosure 10/24/08 Defendants Expert Disclosure 11/24/08 Transcript of Frye hearing (excerpts) 5/27/09 Jury Interrogatories 8/31/09 Decision of Hon. Donna Mills 5/1/09 Fradd Affidavit 7/16/07 Order to Show Cause 8/7/07 Corwin Affidavit 11/9/07 Defendants Exhibit List 11/20/07 Jannuzzo Letter 1/19/2010 Judgment 10/28/08 Wolf Block email 10/28/08 List of Wolf Block documents 10/28/08 Jannuzzo Letter 10/31/09 Jannuzzo Letter 10/31/08 Corwin Letter 5/11/09 Defendants Exhibit List 79. Each of the following, or a copy thereof, was received by Defendants on or shortly after the date it bears: Exhibit 2. Jannuzzo 1/27/2004 Letter. Exhibit 23. Katten Muchin Letter 3/28/2007. Exhibit 27. Jannuzzo 2/23/2004 Letter. Exhibit 46. Jannuzzo 1/25/2006 Letter. Exhibit 68. 10/24/08 Plaintiff s Expert Disclosure Exhibit 77. 11/20/07 Jannuzzo Letter Exhibit 79. 10/28/08 Wolf Block email Exhibit 80. 10/28/08 List of Wolf Block documents Exhibit 81. 10/28/08 Jannuzzo Letter Exhibit 82. 10/31/09 Jannuzzo Letter 80. The document attached as Exhibit C hereto is a complete and genuine copy of Defendants Apollo Medical Fund Management LLC s and Brandon -16-
Fradd s Responses and Objections to Plaintiff s Revised Requests for Admission, sworn to by Brandon Fradd on March 25, 2009. 81. The document attached as Exhibit D hereto is a complete and genuine copy of Defendants Responses and Objections to Plaintiff s Requests for Admission, sworn to by Brandon Fradd on April 28, 2009. Dated: New York, New York June 8, 2011 JEFFREY A. JANNUZZO, ESQ. Counsel for plaintiff James L. Melcher By: Jeffrey A. Jannuzzo 10 East 40th Street, 35th Floor New York, NY 10016-0301 (212) 932-8524 RFA-2011-6-8-Pltf First.wpd -17-