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Exhibit A 3 of 23
FILED: NEW YORK COUNTY CLERK 12/18/2015 03:44 PM INDEX NO. 162228/2014 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 12/18/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------- x : THREE AMIGOS SJL REST., INC, : : Plaintiff, : : -against- : : ALPHONSE HOTEL CORP., : : Defendant. : : ---------------------------------------------------------------- x Index No. 162228/2014 DEFENDANT S SECOND DEMAND FOR DISCOVERY AND INSPECTION PLEASE TAKE NOTICE that pursuant to CPLR 3101, 3120, et. seq., Defendant ALPHONSE HOTEL CORP. ( Alphonse ), by and through its attorneys, Stroock & Stroock & Lavan LLP, hereby demands that Plaintiff THREE AMIGOS SLJ REST., INC. ( Three Amigos or Plaintiff ) produce the following documents and things for inspection and copying within sixty (60) days after the service of this Demand by delivery of same to Stroock & Stroock & Lavan, LLP 180 Maiden Lane, New York, New York 10038 or at such other place as may be agreed to by said parties. DEFINITIONS 1. Plaintiff or Three Amigos refers to Three Amigos SJL Rest., Inc. and its current and former officers, directors, employees, agents, segments or divisions, or any other person or entity acting or purporting to act on Plaintiff s behalf. 2. Defendant or Alphonse refers to Alphonse Hotel Corp., and its current and former officers, directors, employees, agents, segments or divisions, or any other person or entity acting or purporting to act on Alphonse s behalf. 3. You and your refers to Plaintiff. 1 4 of 23
4. Plaintiff s Second Amended Verified Complaint refers to the same-named pleading filed by Plaintiff in the above-captioned case on November 9, 2015. 5. Cheetah Club refers to the nightclub and restaurant owned and operated by Plaintiff on the premises located at 252 West 43rd Street, New York, New York. 6. Answer refers to Alphonse s Verified Answer to Plaintiff s Second Amended Verified Complaint. 7. Lawsuit refers to the entirety of the above-captioned action. 8. April 6, 2011 Letter refers to the letter dated April 6, 2011 from Plaintiff to Alphonse and executed by Sam Zherka and Erwin Lumanglas. 9. And, or and and/or should be construed both conjunctively and disjunctively in order to bring within the scope of the request as many documents as possible. 10. Any includes the word all, and all includes the word any. 11. Communication means any correspondence, contact, discussions, or written or oral exchange between any two or more persons, including letters, emails, and memoranda. 12. The terms concern, concerning, evidence, evidencing, referring, refer to, regarding, with regard to, relate to, or relating, shall mean summarize, demonstrate, constitute, reflect, contain, study, analyze, consider, explain, mention, show, discuss, describe, comment upon, or result from. 13. Document is used in the broadest sense and includes, but is not limited to, the original and any non-identical copy (whether different because of notes or underlining or any other reason) of any writing and drafts thereof, whether printed or recorded or reproduced by any other mechanical or electronic process, or written or produced by hand, namely: agreements; communications; correspondence; e-mails; telegrams; memoranda; records; books; notes; 2 5 of 23
summaries of records of personal conversations or interviews; diaries; daily planners; forecasts; statistical statements; accountants work papers; graphs; charts; accounts; analyses; analytical records; minutes or records of meetings or conferences; reports and/or summaries of interviews; reports and/or summaries of investigations; opinions or reports of consultants; appraisals; records; reports or summaries of negotiations; brochures; pamphlets; circulars; trade letters; press releases; press articles; reports; contracts; breakouts; projections; working papers; securities ledgers; checks, front and back; check stubs or receipts; any other documents or writings of whatever description including but not limited to any information contained in any computer or word processing system, including electronic mail, whether or not yet printed out, or other data compilation from which information can be obtained and translated, if necessary, by you through detection devices into reasonably usable form, within your possession, custody or control or the possession, custody or control of any agent, employee (including without limitation, attorneys, accountants and investment bankers or advisers), or other person acting or purporting to act on your behalf. 14. Including means including but not limited to. 15. Or means and/or. 16. Person and persons shall be deemed to include natural person, partnership, firm, corporation, and all of their subsidiaries or divisions, and, in the case of a partnership, firm and corporation, the individual member(s) or agent(s) thereof. 17. Regarding means concerning, as defined above. 18. Thing is used in the broadest sense. 3 6 of 23
INSTRUCTIONS 1. All instructions set forth in Article 31 of the CPLR are incorporated herein by reference. 2. Unless otherwise specified, the time period for which the following documents are being requested is the period covered by Plaintiff s claims and three previous years. 3. The terms all and each shall be construed as all and each. 4. The connectives and and or shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these requests all responses that might otherwise be construed to be outside of their scope. 5. The use of the singular form of any word includes the plural and vice versa. 6. The present tense includes the past and future tenses. 7. Any objection shall state with specificity all grounds. Any ground not stated within the time provided by the CPLR, or any extension thereof, shall be waived. 8. These requests are deemed continuing and require further and supplemental production, on a prompt basis, in the event you or any other person who participates in responding to these requests obtains or discovers additional responsive documents. 9. If a portion of a document is responsive, produce the entire document. If there are no documents responsive to any particular request or category, so state in writing. 10. Each request herein for a document or documents to be produced contemplates production of the document or documents in its entirety without abbreviation or expurgation. 11. All documents described herein which are in your possession, custody, or control shall be produced as herein directed. Any described document which is not in your immediate physical possession, but in regard to which you have a right to compel production from a third person or which is otherwise subject to your control, shall be obtained and produced as directed. 4 7 of 23
12. Plaintiff shall produce any and all drafts and copies of each document that is responsive to any request, and all copies of such documents that are not identical in any respect, including, but not limited to, copies containing handwritten notes, markings, stamps or interlineations. 13. If any documents or parts of documents called for by this document request are withheld under a claim of privilege, furnish a list identifying each document so withheld (including the type of document, the date of the document, the author(s) of the document, the addressee(s) and all recipients of the document, and the subject matter of the document), the privilege claimed, the grounds therefor, and such other information as is sufficient to identify the document for a subpoena duces tecum. If a document is in part privileged and in part not privileged, supply the information required above and produce the non-privileged portion with an indication wherever privileged portions have been withheld. 14. If any documents or parts of documents called for by this document request have been lost, discarded or destroyed, furnish a list describing each such document (including the nature of the document, the author(s) of the document, the addressee(s) of the document, the date of the document and the subject matter of the document), describing the disposition of the document (including the date of disposal, manner of disposal, reasons for disposal, person(s) authorizing the disposal and person(s) disposing of the document), and identifying the persons with knowledge of the document. 15. If a document requested to be produced is known to exist and to have once been in your possession, custody or control, but is no longer so, so state and furnish a list describing each such document (including the type of document, the author(s) of the document, the 5 8 of 23
addressee(s) of the document, the date of the document and the subject matter of the document) and identify the present custodians, if known. 16. If you cannot produce the requested documents, even after exercising due diligence to secure information to do so, specify the documents that you claim cannot be produced in full, and state what knowledge, information, or belief you have with respect to each unproduced document. 17. Each paragraph and subparagraph herein shall be construed independently and not with reference to any other paragraph or subparagraph for the purpose of limitation. 18. Each document or thing produced in response to any of the specifications herein is to be marked to indicate the specific number in response to which it is being submitted, or as they are kept in the usual course of business. 19. The selection of documents from files and other sources shall be performed in such a manner as to ensure that the file or other source from which a document is obtained may be identified. 20. Documents attached to other documents or materials shall not be separated unless sufficient records are kept to permit reconstruction of the grouping. DOCUMENTS TO BE PRODUCED 1. Any and all tax returns or tax filings concerning tax years 2010 through 2014, including but not limited to any federal, state, and local, city, or municipal filings, for and on behalf of Plaintiff. 2. Any and all communications regarding taxes of Plaintiff and/or Cheetah Club for tax years 2010 through 2014. 6 9 of 23
3. Any and all documents for the years 2010 through present regarding the business of Plaintiff or Three Amigos, including but not limited to accounting records, business expenses, payroll records, income statements, financial statements, and balance sheets. 4. Any and all documents showing and/or regarding any efforts made or monies spent by the Plaintiff to enforce rights claimed under the April 6, 2011 Letter including but not limited to efforts and monies spent on Plaintiff s main entrance, as outlined by the April 6, 2011 Letter. 5. Any and all documents evidencing the damages claimed by Plaintiff in any of its causes of actions in Plaintiff s Second Amended Verified Complaint. 6. Any and all liquor licenses held by Plaintiff and/or Cheetah Club. 7. Any and all documents regarding the liquor license(s) for Plaintiff and/or Cheetah Club, including but not limited to applications, notices, decisions or dispositions, letters, emails, and other communications to, from, or concerning the New York State Liquor Authority. 8. Any and all documents submitted to any government or law enforcement agency by or on behalf of Plaintiff and/or Cheetah Club since December 1, 2010. 9. Any and all documents received by Plaintiff and/or Cheetah Club from any government or law enforcement agency since December 1, 2010. 10. Any and all violations issued to the Plaintiff and/or Cheetah Club by a government or law enforcement agency since December 1, 2010. 11. Any and all communications between Plaintiff and Defendant. 12. Any and all menus relating to food and beverage service currently and/or previously available at Cheetah Club from December 1, 2010 to the present. 7 10 of 23
Dated: December 18, 2015 New York, New York STROOCK & STROOCK & LAVAN LLP Attorneys for Defendant Alphonse Hotel Corp. By: /s/ Kevin L. Smith Deana S. Stein 180 Maiden Lane New York, NY 10038 (212) 806-5400 TO: REX WHITEHORN & ASSOCIATES P.C. Attorneys for Plaintiff 11 Grace Avenue, Suite 411 Great Neck, New York 11021 (516) 829-5000 Attn: Rex Whitehorn 8 11 of 23
Exhibit B 12 of 23
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Exhibit C 21 of 23
Stein, Deana S. From: Sent: To: Cc: Subject: Smith, Kevin Friday, March 11, 2016 10:04 AM 'Rex Whitehorn'; Aphrodite Hepheastou (ah@rwassociatespc.com) Stein, Deana S.; nflitt@rosenbergestis.com Cheetahs litigation Rex, The below memorializes and summarizes our phone call on March 8, 2016 discussing outstanding discovery issues in Three Amigos SLJ Rest., Inc. v. Alphonse Hotel Corp., et al., Index. No. 162228/2014: 1. We agreed to provide you with an additional two weeks to respond to our outstanding discovery requests (demand for expert disclosure, interrogatories), which are now due on or by March 22, 2016. 2. We discussed the following Demands to Defendant s Second Request for Discovery and Inspection as follows: a. Demand Nos. 1-2: Tax returns and related communications i. We requested these documents as relevant Plaintiff s claims for damages against Defendant Alphonse. ii. You refuse to produce these documents. b. Demand No. 3: Three Amigos business records (accounting, expenses, payroll, income statements, financial statements, etc.) i. We requested these documents as relevant Plaintiff s claims for damages against Defendant Alphonse. ii. You refuse to produce these documents. c. Demand No. 4: Docs showing/regarding efforts made or money spent enforcing its rights under the April 2011 letter, including efforts made to make the emergency exit Plaintiff s main entrance i. We requested these documents as relevant Plaintiff s claims for damages against Defendant Alphonse. ii. You refuse to produce these documents. d. Demand No. 5: Documents evidencing damages outlined in 2nd Amended Complaint i. We requested these documents as relevant Plaintiff s claims for damages against Defendant Alphonse. ii. You refuse to produce these documents. e. Demand No. 6: Liquor licenses i. You provided 1-page copy of license that is nearly impossible to read. ii. You refuse to provide a legible copy f. Demand No. 7: Documents regarding liquor license i. You provided nothing in response to this request ii. You refused to produce these documents Please let me know if any of this is incorrect. Otherwise, I will assume you agree to the above representation. We will proceed to seek enforcement. Sincerely, Kevin L. Smith Esq. Stroock & Stroock & Lavan LLP 180 Maiden Lane, New York New York,10038-4928 1 22 of 23
Tel 212 806 5594 Fax 212 806 2594 2 23 of 23