FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 v. NOTICE OF MOTION FOR SANCTIONS PURSUANT TO CPLR 3126 MOTION MADE BY: RETURN DATE, TIME and PLACE: SUPPORTING PAPERS: RELIEF REQUESTED: Defendants Shoshana Tal, BH Tal Real Estate Inc., and President Property Group Ltd., by their attorney, 09:30 am on April 21, 2017 at Motion Submissions Part (Room 130), Supreme Court of the State of New York, County of New York, 60 Centre Street, NY, NY. Affirmation of Good Faith Effort to Confer with Opposing Counsel attached hereto; Affirmation of Service attached hereto; Affirmation of David Yerushalmi, Esq., duly affirmed on February 14, 2017, and filed concurrently herewith; the exhibits annexed thereto; Affidavit of Charles Kellner, duly signed and notarized on January 31, 2015, and filed concurrently herewith; the exhibits annexed thereto; the Memorandum of Law in Support of Motion for Sanctions filed concurrently herewith; and all prior pleadings and proceedings in this action. An Order pursuant to CPLR 3126 and New York common law on spoliation for sanctions (1) to dismiss the Second Amended Complaint with prejudice due to Plaintiff s reckless, if not willful, spoliation of evidence, which Plaintiff concedes would exonerate Defendants; or alternatively, (2)(a) ruling as a matter of fact and law (for purposes of summary judgment proceedings and/or trial) that Plaintiff was fully 1 of 6
FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 aware of, and approved, Shoshana s employment with a putative competitor of Plaintiff in early 2008, long before Shoshana began her own firm, Defendant BH Tal, and that Plaintiff approved of Shoshana s dual licensure from 2008 through August 2011, during which time she maintained her Douglas Elliman email and LIMO privileges with Plaintiff s full knowledge and approval and, as a result, Shoshana is not liable to Plaintiff for breach of contract or breach of a duty of loyalty arising out of her employment with, or operating of, BH Tal or any other putative competitor between 2008 and 2011; and (2)(b) precluding Plaintiff from presenting any evidence or argument contrary to the ruling set forth in (2) above; or, alternatively, (3) ruling that Defendants are entitled to an adverse inference charge (for purposes of summary judgment proceedings and/or trial) that Defendant Tal notified Plaintiff of her putatively competitive employment with Itzhaki Properties in 2008 and of her desire for dual licensure and Plaintiff agreed and precluding Plaintiff from presenting any evidence or argument to the contrary. Defendants also seek attorney s fees and costs associated with this motion, including all fees associated with the work performed by D4 and paid for by Defendants pursuant to this Court s prior orders, and such further and other relief as the Court deems just and appropriate. ANSWERING PAPERS: Dated: Brooklyn, New York February 13, 2017 Per stipulation of the parties and so ordered by the Court, all answering papers, if any, are to be served by e-filing on or before March 31, 2017. LAW OFFICES OF DAVID YERUSHALMI, P.C. // // By 640 Eastern Parkway Suite 4C Brooklyn, New York 11213 Tel: 646.262.0500 Fax: 801.760.3901 Attorneys for Defendants 2 of 6
FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 SERVICE BY NYSEF TO ALL PARITES: COLE HANSEN CHESTER LLP Michael S. Cole, Esq. 767 Third Avenue 24 th Floor New York, New York 10017 Tel: 212.599.1535 Attorneys for Plaintiff 3 of 6
FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 v. AFFIRMATION OF GOOD FAITH EFFORT TO CONFER WITH OPPOSING COUNSEL 1. I,, as counsel for all Defendants in this action, and as the attorney moving on behalf of all Defendants for sanctions pursuant to CPLR 3126 ( Motion ), declare under penalty of perjury, that I have made every good faith effort to confer with opposing counsel to resolve the discovery disputes set forth in the Motion pursuant to 22 NYCR 202.7(a). 2. Specifically, as set forth with more particulars in my affirmation and in the Affidavit of Charles Kellner, both of which are filed in support of the Motion, the Court initially took up this issue of Plaintiff s reckless spoliation of materially relevant and exculpatory evidence in the context of Defendants earlier motion to compel wherein the Court ordered the appointment of a forensic IT expert mutually acceptable by all parties. Upon the conclusion of the work of the forensic IT expert and following a status conference, the parties stipulated and the Court so ordered a briefing schedule for this Motion. Dated: February 13, 2017 Brooklyn, New York 640 Eastern Parkway, #4C Brooklyn, NY 11213 4 of 6
FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 v. AFFIRMATION OF SERVICE I,, declare under penalty of perjury, that I have served a copy of the following: Notice of Motion for Sanctions pursuant to CPLR 3126 and all accompanying documents referenced therein by e-filing via NYSEF and that all parties have consented to the use of e-filing for this case. Dated: February 13, 2017 Brooklyn, New York 640 Eastern Parkway, #4C Brooklyn, NY 11213 5 of 6
FILED: NEW YORK COUNTY CLERK 02/13/2017 08:25 PM INDE NO. 650440/2012 v. Pursuant to 22 NYCRR 130-1.1, the undersigned attorney admitted to practice law in the Courts of New York State, certify that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: February 13, 2017 Signature: LAW OFFICES OF DAVID YERUSHALMI, P.C. 640 Eastern Parkway Suite 4C Brooklyn, New York 11213 Tel: 646.262.0500 Facsimile: 801.760.3901 email: david.yerushalmi@verizon.net Attorneys for Defendants NOTICE OF MOTION FOR SANCTIONS 6 of 6