SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------ X JFURTI, LLC, SUMMER INVESTORS, LLC, Index No. 650803/2014 WINTER 866 UN LLC and JACOB FRYDMAN, Part 3 (Justice Bransten) Motion Seq. 11 Plaintiffs, -against- ELI VERSCHLEISER, EVURTI, LLC, EVE, LLC and EVUN P HOLDINGS LLC, Defendants. (the Frydman action ) ------------------------------------------------------------------------ X Consolidated Actions EVUNP HOLDINGS LLC; EVURTI, LLC ELI VERSCHLEISER, Index No. 650841/2014 Plaintiffs, Part 3 (Justice Bransten) -against- Motion Seq. 11 JACOB FRYDMAN, JFURTI LLC, SUMMER INVESTORS LLC, WINTER 866 UN LLC, SUNEET SINGAL, FIRST CAPITAL REAL ESTATE INVESTMENTS, LLC, FIRST CAPITAL REAL ESTATE TRUST, INC. & JOHN DOES 1-10, Defendants. (the Verschleiser action ) ------------------------------------------------------------------------X DEFENDANT S MEMORANDUM OF LAW IN OPPOSITION TO THE PLAINTIFFS MOTION FOR SANCTIONS DATED MARCH 20, 2017 JOSHUA B. SUMMERS, ESQ. 499 Chestnut Street, Suite 219 Cedarhurst, New York 11516 (516) 833-1463 1 of 20
TABLE OF CONTENTS PRELIMINARY STATEMENT...... 1 RELEVANT FACTS.... 2 ARGUMENT............. 5 I. THE COURT SHOULD DENY THE INSTANT MOTION FOR SANCTIONS IN THE AMOUNT OF $48,367.22, BECAUSE THE SUM IS EXCESSIVE.... 5 A. Defendants Calculations as to Sanctions Includes Costs in Connection with the Federal Court Motion. 5 B. Defendants Calculations as to Sanctions Includes Costs Wholly Unrelated to those for which Mr. Verschleiser was Held Accountable. 7 II. THE COURT SHOULD DENY THE INSTANT MOTION FOR ADDITIONAL SANCTIONS BECAUSE PLAINTIFFS FAIL TO OFFER SUFFICIENT SUPPORT FOR SUCH A REQUEST....... 9 A. Plaintiffs Offer no Evidence for Accusations as to Verschlesier s Conduct and Intent... 10 B. Verschleiser s Confusion Arose from Ambiguity in the November 28th Order.. 12 C. The Legal Cases and Support Relied on by Plaintiffs may be Strongly Distinguished from the Case at Hand.. 15 CONCLUSION... 17 ii 2 of 20
Cases TABLE OF AUTHORITIES Page No. Figdor v. City of N.Y., 33 A.D.3d 560, 561, 823 N.Y.S.2d 385 (1st Dep't 2006)... 16 Young v. City of New York, 104 A.D.3d 452, 454, 960 N.Y.S.2d 116 (1st Dep't 2013). 16 Statutes Page No. CPLR 3126..... 15, 17 22 NYCRR 130-1.1... 15 iii 3 of 20
PRELIMINARY STATEMENT Defendant, Eli Verschleiser, respectfully submits this memorandum of law in opposition to Plaintiffs motion for: (i) a calculation of the sanctions granted at the November 28, 2016 hearing in the amount of $48,367.22, and (ii) further monetary sanctions in addition to those awarded by this Court at the November 28th hearing. For the reasons expressed in Defendants memorandum of law dated January 23, 2017 (ECF Docket No. 266), as well as the reasons laid out below, it is clear that Plaintiffs calculations are over-reaching and include costs associated with items wholly unrelated to those items for which Mr. Verschleiser was held responsible by this Courts order. Additionally, Plaintiffs request for additional sanctions is without merit for several reasons. First, Plaintiffs make conclusory statements as to Mr. Verschleiser s intent and honesty and offer no evidence to support such allegations. See Plaintiffs Memorandum of Law dated 3/20/17 at 4, 11 ( hereinafter Plaintiffs 3/20/17 MOL ). In fact, the only hard evidence that actually exists is in the form of a written email by Mr. Verschlesier, which directly refutes any such allegations made by Plaintiffs. Second, Plaintiffs improperly refer to a number of legal cases and precedents, which are all strongly distinguished on many grounds. All such cases relate to instances where a party was sanctioned for conduct which caused a great deal more prejudice and delay than the one hour and twenty minutes of delay that occurred at Mr. Verschleiser s deposition in question. Furthermore, in the cases cited by Plaintiffs, the party sanctioned intentionally and maliciously disobeyed a court order, whereas here not only did Mr. Verschleiser fully obey this Court s order without requiring any further instruction or warning, but the only delay in his doing so was incredibly brief and caused by clear ambiguity on 1 4 of 20
the record in the Order expressed by this Court. See November 28, 2016 Order at 10:7-11, 12:3-7 (hereinafter 11/28/16 Tr. ). The reality is that Mr. Verschleiser, who was representing himself pro se at the time, was confused as to the deposition schedule for two main reasons: (i) the Order made by this Court was ambiguous on the matter of whether Mr. Verschleiser was to sit for three more hours of deposition testimony in addition to the three hours ordered by Judge Cott (See id.), and (ii) although Mr. Verschleiser expressed a clear willingness to proceed with the three additional hours in any event, when Plaintiffs learned of Mr. Verschleiser s confusion they failed to properly instruct him at the lunch break on whether or not they would in fact be proceeding with the second continued deposition of three hours in length. RELEVANT FACTS On or about September 18, 2016, Plaintiffs filed a motion before this Court, requesting, among other things, that the Court extend Mr. Verschleiser s deposition and issue sanctions against Mr. Verschleiser in connection with his behavior at his prior deposition dated August 18, 2016. See generally Plaintiffs Memorandum of Law dated 9/18/16 (ECF Dkt. No. 239) (hereinafter Plaintiffs 9/18/16 MOL ). On or about September 19, 2016, Plaintiffs filed a nearly identical motion, requesting the exact same relief in the parallel action now pending before the Southern District Court of New York. See generally United Realty Advisors, et al. vs. Eli Verschleiser, et al, 14 Civ. 05903 (JGK), Dkt. No. 184 (hereinafter Plaintiffs 9/19/16 Letter Motion ). On October 7, 2016, the federal court issued an order to extend Mr. Verschleiser s deposition with a three-hour continuance, but the court denied Plaintiffs request for sanctions. Thereafter, during the hearing dated November 28, 2016, this Court ordered, pursuant to Judge 2 5 of 20
Cott s three-hour extension, that [t]hree hours of questioning on new material not rehashing of prior questions -- is warranted here. See 11/28/16 Tr. at 10:7-11. Unlike Judge Cott, however, this Court granted Plaintiffs request for sanctions, explaining that, [s]ince the additional three hours of deposition time is caused by Verschleiser's poor conduct, Verschleiser shall pay the cost of the court reporter, videographer and Plaintiffs' attorneys' fees for the three-hour period as a sanction. Id. at 12:3-7. This Court also held Mr. Verschleiser liable for the cost of filing this motion. Id. at 21:24-25. In the same November 28 th hearing, Your Honor first suggested that the three hour continuance ordered by this Court would be in addition to the one ordered by Judge Cott, thus requiring two continued depositions of three hours in length each. Id. at 12:3-7. However, later on, Plaintiffs counsel, Mr. Jakoby, insisted that due to overlapping discovery... the parties should work together to use discovery in both cases, so that you don't have to sit multiple times and take each witness twice. Id. at 20:24-21:2-9. In response to Mr. Jakoby s statement this Court appeared to alter its decision, stating: So there will be one deposition of Mr. Verschleiser of three hours in length because that's what Judge Cott said. Id. at 21:12-17 (emphasis added). Mr. Verschlesier, who was appearing pro se at the time, therefore understood that the November 28 th Order required him to sit for only one continued deposition of three hours. See Verschleiser Affidavit at 2 (hereinafter Verschleiser Aff. ). On the morning of December 8, 2016, in accordance with this Order, Mr. Verschleiser sat for three hours of deposition testimony, representing himself pro se. After the three hours of deposition testimony were completed, Plaintiffs stated on the record that they were breaking for a lunch. See Verschleiser Deposition Transcript dated 12/08/16 at 607:21-608:12 (hereinafter 12/08/16 Deposition Tr. ), annexed to the affidavit of Joshua B. Summer ( Summers Aff. ) as Exhibit A. In a subsequent conversation 3 6 of 20
that took place off the record, Mr. Verschleiser explained his position that the November 28 th Order only required him to sit for one continued deposition of three hours, which he had just completed. See Verschleiser Aff. at 2. When Plaintiffs and their counsel insisted that the November 28 th Order required two continued depositions of three hours, Mr. Verschleiser offered to cooperate and to complete the final three hours as Plaintiffs had planned. Id. However, after being led to believe that Plaintiffs wished to adjourn the final three hours to another date in order to re-examine the November 28 th Order, Mr. Verschleiser left the deposition. Id. Mr. Verschleiser then emailed Plaintiffs and their counsel in order to confirm this understanding in writing, as he feared Plaintiffs were attempting to mislead him. Id. When Plaintiffs and their counsel responded that they intended to complete the final three hours of testimony that very afternoon, Mr. Verschleiser immediately turned around and returned to the deposition location. Id. As soon as Mr. Verschleiser returned, the second continued deposition of three hours was completed with no further interruptions. Id. Despite a brief scheduling hiccup lasting approximately one hour and twenty minutes in length, Mr. Verschleiser complied fully with both understandings of this Court s November 28 th Order. See 12/08/16 Deposition Tr. at 622:3-18. On or about January 6, 2016, Plaintiffs counsel issued a letter to your undersigned, who had recently come on as Mr. Verschleiser s counsel, wherein they included an invoice for the costs they alleged Mr. Verschleiser to be liable for pursuant to this Court s November 28 th Order. See Letter from Mr. Jakoby dated 1/6/17 (hereinafter 1/6/17 Letter ), annexed to Summers Aff. as Exhibit B. The invoice remains unpaid because it includes numerous costs that Mr. Verschleiser was not held to be liable for by this Court. See infra at Section I. On or about January 13, 2017, Plaintiffs wrote a letter to this Court, requesting that it issue a Judgment in the amount reflected in Plaintiffs invoice dated January 6 th. See generally Plaintiffs Letter dated 4 7 of 20
1/13/17 (ECF Dkt. No. 261) (hereinafter Plaintiffs 1/13/17 Ltr. ). In turn, Defendants filed a response on January 23, 2017. See generally Defendants Letter dated 1/23/17 (ECF Dkt. No. 266) (hereinafter Defendants 1/23/17 Ltr. ). On or about February 1, 2017, the parties had a telephonic conference with this Court to discuss the matter. During the call, the clerk of this Court explained that Plaintiffs were attempting to have this Court issue a Judgment for a sum which included costs not covered by the November 28 th Order, and as such, Plaintiffs must first submit a motion requesting additional sanctions against Mr. Verschleiser before their proposed sum could be approved or denied. Nearly two months later, Plaintiffs counsel filed the motion at issue on March 20, 2017. See generally Plaintiffs 3/20/17 MOL. Defendant, Mr. Verschleiser, now files this memorandum of law in response thereto. ARGUMENT I. THE COURT SHOULD DENY THE INSTANT MOTION FOR SANCTIONS IN THE AMOUNT OF $48,367.22, BECAUSE THE SUM IS EXCESSIVE Plaintiffs motion for sanctions in the amount of $48,367.22 should be denied. As explained in Defendants letter dated January 23, 2017 (ECF Docket No. 266), and as laid out herein, it is clear that Plaintiffs calculations as to sanctions are completely inaccurate, excessive, and include costs for which Mr. Verschleiser has not been held liable by this Court. A. Defendants Calculations as to Sanctions Includes Costs in Connection with the Federal Court Motion Defendants have already explained in their letter dated January 23, 2017 that, as Your Honor acknowledged at the November 28, 2016 hearing in question, the same relief sought by 5 8 of 20
way of this Motion was also sought (and denied) in the parallel federal court action. See Transcript from November 28, 2016 Hearing at 4:26-5:2 ( I am very much aware of Judge Cott s decision ). Now, Plaintiffs seek to be compensated for the fees and costs that comprised the efforts in proceedings that took place in both this Court and the federal action. See Defendants Letter dated January 23, 2017 at 1 (ECF Docket No. 266) (hereinafter Defendants Jan. 23 rd Ltr. ). Plaintiffs counsel argues that their detailed invoice discredits any claim that Plaintiffs are attempting to bill Defendants for the time spent on the federal court matter. See Plaintiffs MOL dated 3/20/17 at 4. However, among the tasks listed on the invoice include researching and outlining the very same discovery issues that were simultaneously at issue in Plaintiffs federal letter motion dated September 19, 2016. Compare Plaintiffs 9/19/16 Letter Motion (annexed to Summers Aff as Exhibit C), with Plaintiffs Memorandum of Law in state court dated 9/18/16 (hereinafter Plaintiffs 9/18/16 MOL ) (ECF Docket No. 239). For example, one item on Plaintiffs invoice has a description as follows: [i]n connection with discovery motion read parts of Verschleiser deposition. See Plaintiffs 1/6/17 Ltr. at 4. The Verschleiser deposition in question was the very same deposition that had been noticed in both state and federal court and was read in preparation of motions made by Plaintiffs simultaneously in both federal and state court. Compare Plaintiffs 9/19/16 Letter Motion at 1-2, with Plaintiffs 9/18/16 MOL at 4-7. In their invoice, Plaintiffs also include costs associated with outlining, drafting, and revising their memorandum of law and reply brief submitted in connection with the state action. See Plaintiffs 1/6/17 Ltr. at 4-8. Given the fact that the arguments made in both the federal and state submissions are nearly identical, as both sets of court submissions required for Plaintiffs to outline the very same issues and responses, it is clear that any costs associated with researching, 6 9 of 20
outlining, and preparing such arguments should be split between the state and federal matters. As such, the costs Plaintiffs have calculated in connection with the state court motion for which Mr. Verschlesier has been held liable should at the very least be halved by this Court. B. Defendants Calculations as to Sanctions Includes Costs Wholly Unrelated to those for which Mr. Verschleiser was Held Accountable Defendants also explained in their letter to this Court dated January 23, 2017 that Plaintiffs seek fees and costs in connection with... items that have no connection to this Motion. See Defendants Jan. 23 rd Ltr. at 1-2. For example, Plaintiffs seek fees associated with a certain affidavit submitted by Mr. Ellis Mirsky and for costs associated with the Mirsky issue. See Plaintiffs 1/6/17 Ltr. at 4-8. Plaintiffs contend that Mr. Mirsky s affidavit was directly related to the Discovery Abuse motion because Plaintiffs review[ed] Mr. Mirsky s affidavit and reference[ed] it in [their] Memorandum of Law 1 and this Court, in its decision, read the Mirsky Affidavit into the record. See Plaintiffs 3/20/17 MOL at 4. This claim is unconvincing for several reasons. First, the mere referencing of a matter by opposing counsel in their memorandum of law does not mean that the matter itself is subject to sanctions. In fact, in issuing its decision, the Court explained that Mr. Verschleiser was to be held liable for the cost of the court reporter, 1 While Plaintiffs counsel claims that they reviewed Mr. Mirsky s affidavit, they tellingly fail to mention the fact that they actually drafted Mr. Mirsky s affidavit in full, which clearly creates questions as to its validity. It is an affront to this Court for Plaintiffs to misinform Your Honor as to their questionable involvement in drafting Mr. Mirsky s affidavit, and at the same time to request reimbursement for the costs incurred by engaging in such questionable conduct. 7 10 of 20
videographer and Plaintiffs' attorneys' fees for the three hours of continued deposition testimony, as well as the cost of filing this motion. See 11/28/16 Tr. at 12:3-7, 21:24-25. However, when reviewing the Mirsky issue specifically, although the Court strongly chastised Mr. Verschleiser s alleged behavior, Your Honor ultimately explained that [w]hile the witness [was] allegedly threatened by Verschleiser and his attorney, he chose to testify in the end. Id. at 7:13-18:2. Therefore, the mere referencing of the Mirsky issue by Plaintiffs counsel in their prior motion does not make costs related to the Mirsky issue attributable to Mr. Verschleiser. Second, while this Court read the Mirsky affidavit into the November 28 th record, that fact does not in any way alter the Court s decision with regards to the sanctions that were imposed against Mr. Verschlesier. As already explained, Your Honor read the Mirsky affidavit into the record in order to address the allegations made therein and to chastise the alleged behavior by Mr. Verschlesier. However, in reading the affidavit into the record, the Court did not add any additional sanctions in connection thereto. See generally, id. at 26:15-44:14 In their invoice Plaintiffs also seek fees in connection with the lunch break that took place on December 8, 2016, in between the three hours of deposition testimony ordered by the federal court and the three hours of disposition testimony conducted pursuant to this Court s Order of November 28th. See Plaintiffs 1/6/17 Ltr. at 7. Plaintiffs counsel lists the events that transpired during the lunch break as expenses incurred because of Verschleiser walking out of deposition, which is a baseless claim for a number of reasons (to be discussed at great length below). Moreover, while Plaintiffs counsel already included these expenses in their invoice of the sanctions they expect pursuant to this Court s November 28 th Order, totaling $48,367.22, they now request that this Court impose additional sanctions for the very same time and activity already accounted for in their invoicing. Therefore, not only have these costs already 8 11 of 20
been improperly assigned to Mr. Verschlesier in Plaintiffs invoice, but Plaintiffs counsel now seeks to double-bill Mr. Verschlesier for the very same expenses that were not properly attributable to Mr. Verschlesier in the first place. This matter will be addressed in more detail below, in the section addressing Plaintiffs request for additional sanctions. For the aforementioned reasons, Plaintiffs are attempting to obtain an amount that is unfair, inaccurate and takes advantage of this Court s decision of November 28, 2016. As such, Defendants should not be borne with the burden of paying the total sum argued for by Plaintiffs of $48,367.22. It is also worth noting, as explained in Defendants letter dated January 23, 2017, the judgment entered against Plaintiffs in the related action, captioned EVUNP et al. v. Frydman et. al.; Index No.: 650841/2014, dated June 20, 2016, has still not been paid. As such, Plaintiffs themselves are still outstanding on sanctions owed in the amount of $29,658.43. See Index No. 650841/2014 at Docket No. 204. II. THE COURT SHOULD DENY THE INSTANT MOTION FOR ADDITIONAL SANCTIONS BECAUSE PLAINTIFFS FAIL TO OFFER SUFFICIENT SUPPORT FOR SUCH A FINDING Plaintiffs request for additional sanctions is similarly without merit for a number of reasons. First, Plaintiffs make conclusory statements as to Mr. Verschleiser s conduct at the December 8, 2016 deposition, but offer no evidence to support their claims. Second, any delay caused in proceeding with the three hours of continued deposition was simply due to (i) ambiguity created on the record at the November 28 th hearing, and (ii) Plaintiffs improper instructions to Mr. Verschlesier at the start of the lunch break with regards to their intentions to 9 12 of 20
proceed with the additional three hours of deposition. Third, Plaintiffs rely on a number of legal precedents which may all properly be distinguished from the case at issue. A. Plaintiffs Offer no Evidence for Accusations as to Verschlesier s Conduct and Intent Plaintiffs make a number of statements regarding Mr. Verschleiser s conduct, intent, and honesty at the December 8 th deposition, but they offer no evidence to support such allegations. See Plaintiffs MOL at 4, 11. The Court specifically warned against such behavior at the November 28 th hearing, stating: the briefs are replete with recriminations and poorly explained grievances.... I am now ordering that the next time you ever do a paper in front of me, you do not do that again. I do not want to hear it. See 11/28/16 Tr. at 8:16-22. In fact, the only hard evidence that actually exists is in the form of a written email sent by Mr. Verschleiser, wherein he states: As per our discussion when I completed the federal depositions, although I was willing to sit for another 3 hours to complete J. Bransten's time, you and your attorneys decided to not do it today. I await a notice of deposition or dates and times and I will try and work with you, as I've done over the last 2 days, to get something calendared. See Email chain dated 12/8/16, annexed to Summers Aff. as Exhibit D. Despite the clear statements made by Mr. Verschlesier in his emails about his reason for believing the appointment for the day was over, Plaintiffs make a feeble attempt to argue that he lied about his reason for walking out of the Court-Ordered Continued Deposition. See 10 13 of 20
Plaintiffs 3/20/17 MOL at 4, 11. Plaintiffs offer no support whatsoever for such allegations. Plaintiffs attempt to rely on the deposition transcript, citing to Mr. Frydman s statement: [w]e are going to come back for the remaining three hours after lunch.... We will start at a quarter to 2:00. Id. at 6-7. However, Plaintiffs also cite to an email by Mr. Frydman in which he responds to Mr. Verschleiser that I and Mr. Jacoby are in the deposition room waiting for you to appear as we agreed you would three minutes ago, at 2 PM. Id. at Exhibit A. This email by Mr. Frydman, where he states a different start-time than the original time stated of a quarter to 2:00, acknowledges that fact that, to some extent, the parties continued to discuss their plans for the afternoon once they were off the record. As there is no transcript of these off-the-record discussions, there is no way of knowing what was said to mislead Mr. Verschleiser into believing that the remaining three hours would be adjourned to another day. However, it is clear that, whether purposefully or accidentally, Mr. Verschlesier was misled by some statement or representation made by Plaintiffs at the start of the lunch break. In any event, despite this brief scheduling hiccup, Mr. Verschlesier ultimately responded to Mr. Frydman s email explaining that he is more than happy to continue today. See Email chain dated 12/8/16 at 1. Shortly thereafter, 2 Mr. Verschlesier s second continued deposition of three hours in length commenced and concluded with no further interruptions. Surely this Court will not be persuaded by Plaintiffs unfounded allegations as to Mr. Verschleiser s intent, which 2 As to the length of the delay caused, Plaintiffs counsel alleges that it spanned for an hour and 35 minutes. See Plaintiffs 3/20/17 MOL at 11. However, based on Mr. Frydman s followup email wherein he states that the start-time was meant to be 2:00pm, the delay would be calculated at an hour and 20 minutes. 11 14 of 20
are supported only by claims of hidden meanings within emails that in fact say nothing of the sort alleged by Plaintiffs counsel. B. Verschleiser s Confusion Arose from Ambiguity in the November 28th Order Mr. Verschlesier, who was representing himself pro se at the time, was confused by the Court s November 28 th Order because of conflicting statements made on the record. There is no dispute that Your Honor affirmed Judge Cott s decision, stating: Judge Cott granted a threehour extension which appears to this Court to be appropriate here.... Three hours of questioning on new material not rehashing of prior questions -- is warranted here. See 11/28/16 Tr. at 10:7-11. At first, Your Honor clarified this statement, explaining that the three hours Ordered by this Court would be in addition to the three hours required by Judge Cott: MR. GULKO: Could I clarify one point real quick? Is your Honor saying that there is an additional three hours besides for what Judge Cott ordered or is that it? THE COURT: I'm granting three hours. So, if that is aside from, yes. My three hours. It is my case. So I am granting three hours. I'm not piggy-backing on Judge Cott. Id. at 12:3-7. However, later on, Plaintiffs counsel, Mr. Jakoby, insisted that: MR. JAKOBY:... [T]here is overlapping discovery and we have been arguing that therefore, the parties should work together to use discovery in both cases, so that you don't have to sit multiple times and take each witness twice. And Judge Cott recognized that. Mr. Gulko has recognized that. 12 15 of 20
So, your Honor, the depositions that are ordered to go forward are going to be used in both cases. Id. at 20:24-21:2-9. It was only after Mr. Jakoby made such a statement that the Court appeared to change its decision, responding: THE COURT: All right. But my order that he pays sanctions, the cost of it that remains. MR. JAKOBY: Correct. THE COURT: So there will be one deposition of Mr. Verschleiser of three hours in length because that's what Judge Cott said. Id. at 21:12-17. Upon reviewing the Court s Order, Mr. Verschlesier therefore understood that Your Honor was clear in her ultimate decision that there would only be one additional deposition of three hours in length. As such, it is arguable that Mr. Verschleiser was in full compliance with this Court s order when he finished the first three hours of deposition testimony on the morning of December 8, 2016, before the lunch break and scheduling issues even began. At the lunch break following the first three-hour session on December 8 th, Mr. Verschleiser raised his position with Plaintiffs and their counsel, who were adamant that the Order required two additional depositions of three hours in length. In an effort to avoid further Court intervention, and for the sole purpose of appeasing Plaintiffs, Mr. Verschleiser expressed his willingness to proceed with the second deposition of three hours in length. See Verschleiser Aff. at 2. However, Plaintiffs counsel were not clear enough in their instructions to Mr. Verschleiser during the lunch break, as he was made to believe that they intended to adjourn any remaining hours of continued deposition to another day in order to look into the Court s Order in 13 16 of 20
greater detail. See Verschleiser Aff. at 2. Whether or not Plaintiffs misdirection of Mr. Verschlesier was purposeful in nature is not the subject of this motion, and Defendants wish to refrain from engaging in any recriminatory dialogue, as Your Honor expressly ordered at the November 28 th hearing. Assuming that any such misdirection was accidental, it is shocking that Plaintiffs were so quick to call the Court for judicial intervention when Mr. Verschleiser responded (within mere minutes) to Plaintiffs explanatory emails, by stating: I am more than happy to continue today. See Email chain at 1. Mr. Verschleiser then immediately stopped in his tracks, turned around, and returned to the deposition location. See Verschleiser Aff. at 2. In their memorandum of law, Plaintiffs counsel aims to place the blame for Mr. Verschleiser s confusion on Mr. Gulko, stating that Mr. Gulko had told [Mr. Verschleiser] that he did not need to complete the three hours of sanctioned testimony on December 8, 2016. See Plaintiffs 3/20/17 MOL at 11. Not only do Plaintiffs offer no citation or support for their claim, but they fail to acknowledge that Mr. Verschleiser was appearing pro se at the time. See Id. Regardless, it is reasonable that Mr. Gulko would advise Mr. Verschleiser that he also understood the Court s ultimate decision to be: there will be one deposition of Mr. Verschleiser of three hours in length. See 11/28/16 Tr. at 21:12-17. Despite the clear ambiguity in the record, and apparent order by this Court that Mr. Verschleiser was only to sit for one continued deposition of three hours in length, as Judge Cott had ordered, Mr. Verschleiser went above and beyond to put the issue to bed, and to prevent against unnecessary court intervention, by subjecting himself to a second continued deposition of three hours in length. While Mr. Verschleiser acknowledges his wrongdoing at the original deposition in August of 2016 that resulted in the need for a continued deposition, he has made every effort to comply with the November 28 th Order in an effort to redeem himself in the eyes 14 17 of 20
of this Court. See Verschleiser Aff. at 2. In the face of Mr. Verschleiser s clear efforts to remain compliant and cooperative, Plaintiffs in turn responded with unnecessary calls to the Court and this frivolous motion to seek additional sanctions and an accounting of the formerly-ordered sanctions in an amount which improperly includes the very same additional sanctions that they also request separately. C. The Legal Cases and Support Relied on by Plaintiffs may be Strongly Distinguished from the Case at Hand The statutory and case law relied on by Plaintiffs in their motion for additional sanctions are all either inapplicable in the instant case, or else strongly distinguished from the instant case. To begin, Plaintiffs counsel relies on CPLR 3126, explaining that it authorizes this Court to impose sanctions where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, pursuant to Article 31 of the CPLR. See Plaintiffs 3/20/17 MOL at 5 (emphasis added). By this very definition, Mr. Verschleiser s conduct does not fall under CPLR 3126, because, as explained above, Mr. Verschlesier made every effort to obey this Court s November 28 th order and to remain cooperative, and in fact he did obey both understandings of the order in full, despite the brief scheduling hiccup. Plaintiffs counsel also relies on 22 NYCRR 130-1.1, suggesting that Mr. Verschleiser s behavior constitutes frivolous conduct, which includes conduct that is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. 22 NYCRR 130-1.1(c)(2). See Plaintiffs 3/20/17 MOL at 5. However, Plaintiffs counsel offer no support for such claims and instead simply offer emails written by Mr. Verschleiser that do not in any way depict an intent to delay litigation or to 15 18 of 20
harass, but rather depict an individual who is expressly aiming to be cooperative and compliant with this Court s order. See generally, Email Chain dated 12/8/16. Plaintiffs counsel cites to Figdor v. City of New York, claiming that [m]onetary sanctions are appropriate where a party refuses to comply with discovery obligations and improperly delays prosecution of the case. See Plaintiffs 3/20/17 MOL at 5. However, in that case the Court issued sanctions due to the defendants noncompliance with discovery orders entered in this action over the course of some two years. See Figdor v. City of N.Y., 33 A.D.3d 560, 561, 823 N.Y.S.2d 385 (1st Dep't 2006) (emphasis added). By contrast, here Mr. Verschlesier is alleged to have delayed a proceeding for approximately one hour and 20 minutes. See supra at fn. 2. Such a brief delay of an hour and 20 minutes, which stemmed from Mr. Verschleiser s very reasonable understanding of this Court s November 28 th decision, is hardly comparable to the two years of noncompliance addressed in Figdor. Plaintiffs counsel also cites to Young v. City of New York, where they claim a monetary sanction was proper penalty for defendants untimely document production. Similarly, in that case the delay sanctioned was of a much greater length than the hour and twenty minute delay in this case, as the defendants therein were charged with being inexcusably slow to produce documents over a period of three years in response to several court orders. Young v. City of New York, 104 A.D.3d 452, 454, 960 N.Y.S.2d 116 (1st Dep't 2013). Upon reviewing the legal support offered by Plaintiffs counsel in there motion for additional sanctions, it is therefore clear that the statutes Plaintiffs rely upon are inapplicable here and that the cases referred to by Plaintiffs are strongly distinguishable. Here, Mr. Verschleiser did not in any way refuse to obey the Court s November 28 th order, as is required 16 19 of 20
for applicability of CPLR 3126. Furthermore, all cases cited to by Plaintiffs relate to cases where a party was sanctioned for causing a much more prejudice and delay than the one hour and twenty minutes of delay that occurred at Mr. Verschleiser s deposition. Finally, in those cases cited to by Plaintiffs, the defendants intentionally disobeyed a court order, whereas here not only did Mr. Verschleiser comply fully with this Court s order of November 28, 2016, but the only delay in his doing so was incredibly brief and caused by clear ambiguity in the Order set forth by this Court. See November 28th Order at 10: 7-11, 12:3-7. CONCLUSION WHEREFORE, Plaintiffs two-part motion for (i) sanctions in the amount of $48,367.22, and (ii) additional sanctions beyond those awarded by this Court at the November 28, 2016 hearing should be denied in full. Dated: April 13, 2017 New York, New York Respectfully Submitted, JB SUMMERS PLLC Attorneys for Defendant Eli Verschleiser, EVURTI, LLC, EVE, LLC and EVUNP HOLDINGS LLC By: /s/ Joshua B. Summers Joshua Summers, Esq. 499 Chestnut Street, Suite 219 Cedarhurst, New York 11516 (516) 833-1463 TO: Mr. Lewis Fischbein, Esq. (via ECF) Mr. Arthur G. Jakoby, Esq. (via ECF) 17 20 of 20