Professional Documents
Culture Documents
712807/2016
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2017
Defendant.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.................................................................................................................... ii
PRELIMINARY STATEMENT.............................................................................................................. 1
THE FACTS................................................................................................................................................ 1
POINT I
KCM'S MOTION TO COMPEL DISCLOSURE FROM NEW RAM SHOULD BE
GRANTED.....................................................................................................................................4
A. New Ram Should Be Compelled To Serve Its Response To Plaintiff s
First Document Request And To Produce The Documents Requested
By Plaintiffs First Document Request............................................................4
B. New Ram Should Be Compelled To Serve Its Statement Of Names
And Addresses Of Witnesses And Statements Of Opposing Parties............8
CONCLUSION............................... 8
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TABLE OF AUTHORITIES
Page(s)
Cases
Reid v. Souks,
138 A.DJd 1091 (2d Dept 2016).....................................................................................................4
Robinson v. Meca,
214 A.DJd 246 (3d Dept 1995).......................................................................................................4
Woo v. Shimunov,
273 A.DJd 303 (2d Dept 2000)..................................................................................................... 5
Statutes
CPLR 3101(a).........................................................................................................................................4
ii
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CPLR 3122(a).........................................................................................................................................2, 5
CPLR3124......................................................................................................................................... 1,4,7
iii
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PRELIMINARY STATEMENT
Plaintiff KCM Realty Company, L.P. (KCM or Plaintiff) submits this memorandum
of law in support of its motion, pursuant to CPLR 3124, to compel Defendant New Ram Realty,
LLC (New Ram or Defendant) to (i) serve its Response to Plaintiff s First Notice of Discovery
and Inspection, dated December 19, 2016 (Plaintiffs First Document Request), and to produce
the documents requested therein, and (ii) serve its Statement of names and addresses of witnesses
and statements of opposing parties, if any. A copy of Plaintiffs First Document Request is
annexed as Exhibit 1 to the accompanying Affirmation of Mitchell J. Geller, dated May 4, 2017
THE FACTS
A full recitation of the relevant facts is set forth in the Geller Affirmation and the exhibits
On December 19, 2016, Holland & Knight LLP (Holland & Knight), KCMs counsel,
served Plaintiffs First Document Request on New Rams counsel via UPS overnight courier. (See
Geller Aff., | 9). The documents sought are directly relevant to the claims and prosecution of this
case, and New Ram has never contended otherwise. (Id, 2,9). Nevertheless, New Ram
objectionsby January 9, 2017, the date Plaintiffs First Document Request specified for
On January 18, 2017, Holland & Knight, KCMs counsel, sent a letter, via email and UPS
overnight courier, advising New Rams counsel that New Ram was in breach of its discovery
obligations because of its failure to respond to Plaintiffs First Document Request and to produce
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responsive documents. {Id,. If 11 & Ex, 31). After receiving no response to the January 18, 2017
letter, KCMs counsel followed up with additional emails on February 6th and February 17th. (Id,
Ifl 1314 & Exs. 4-5). In each instance, KCMs counsel (i) explained that New Rams failure to
object within the twenty day time period prescribed by CPLR 3122(a) foreclosed objections to
Plaintiff s First Document Request except in cases of privilege or where a request was palpably
improper, and (ii) demanded immediate production of the documents and ESI requested. (Id., ||
When, by February 22nd, New Ram still had not responded, KCMs counsel sent an
additional email seeking to schedule a call to discussand hopefully resolvethe discovery issue
in advance of the Preliminary Conference scheduled for February 28, 2017. (Id, ^ 15 & Ex. 6).
New Rams counsel simply responded that the parties could figure everything out at the
Ultimately, the Preliminary Conference Order, dated February 28, 2017, required New
Ram to serve its response to Plaintiffs First Document Request and produce responsive documents
on March 28, 2017. (Id., *\\ 16 & Ex. 7). Yet, New Ram failed to comply with even this extended
deadline. (Id,. *[ 17). So, on March 31st and again on April 20th, KCMs counsel sent an email
advising New Rams counsel of New Rams failure to respond, object, or produce documents in
accordance with the Preliminary Conference Order. (Id. ^ 18-19 & Exs. 8-9). Not surprisingly,
On May 1, 2017, Mitchell Geller, Esq. of Holland & Knight made a good faith effort to
resolve the issues raised by this motion. (Id., If 20). On May 1, 2017, Mr. Geller had a telephone
call with Clifford Greene, Esq., counsel for New Ram, regarding New Rams failure to serve its
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Defendant.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.................................................................................................................... ii
PRELIMINARY STATEMENT.............................................................................................................. 1
THE FACTS................................................................................................................................................ 1
POINT I
KCM'S MOTION TO COMPEL DISCLOSURE FROM NEW RAM SHOULD BE
GRANTED.....................................................................................................................................4
A. New Ram Should Be Compelled To Serve Its Response To Plaintiff s
First Document Request And To Produce The Documents Requested
By Plaintiffs First Document Request............................................................4
B. New Ram Should Be Compelled To Serve Its Statement Of Names
And Addresses Of Witnesses And Statements Of Opposing Parties............8
CONCLUSION........................................................................................................................................... 8
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TABLE OF AUTHORITIES
Page(s)
Cases
Reid v. Soults,
138 A.DJd 1091 (2d Dept 2016).....................................................................................................4
Robinson v. Meca,
214 A.DJd 246 (3d Dept 1995).......................................................................................................4
IVoo v. Shimunov,
273 A.DJd 303 (2d Dept 2000).............................................................................................. :....... 5
Statutes
CPLR 3101(a).........................................................................................................................................4
ii
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CPLR 3122(a).........................................................................................................................................2,5
CPLR3124......................................................................................................................................... 1,4,7
ill
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PRELIMINARY STATEMENT
Plaintiff KCM Realty Company, L.P. (KCM or Plaintiff) submits this memorandum
of law in support of its motion, pursuant to CPLR 3124, to compel Defendant New Ram Realty,
LLC (New Ram or Defendant) to (i) serve its Response to Plaintiffs First Notice of Discovery
and Inspection, dated December 19, 2016 (Plaintiffs First Document Request), and to produce
the documents requested therein, and (ii) serve its Statement of names and addresses of witnesses
and statements of opposing parties, if any. A copy of Plaintiffs First Document Request is
annexed as Exhibit 1 to the accompanying Affirmation of Mitchell J. Geller, dated May 4, 2017
THE FACTS
A full recitation of the relevant facts is set forth in the Geller Affirmation and the exhibits
On December 19, 2016, Holland & Knight LLP (Holland & Knight), KCMs counsel,
served Plaintiffs First Document Request on New Rams counsel via UPS overnight courier. (See
Geller Aff, 9). The documents sought are directly relevant to the claims and prosecution of this
case, and New Ram has never contended otherwise. (Id, ^ 2,9). Nevertheless, New Ram
objectionsby January 9, 2017, the date Plaintiffs First Document Request specified for
On January 18, 2017, Holland & Knight, KCMs counsel, sent a letter, via email and UPS
overnight courier, advising New Rams counsel that New Ram was in breach of its discovery
obligations because of its failure to respond to Plaintiffs First Document Request and to produce
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responsive documents. {Id,. H 11 & Ex. 31). After receiving no response to the January 18, 2017
letter, KCM s counsel followed up with additional emails on February 6^ and February ly1*1. (Id.,
11 13-14 & Exs. 4-5). In each instance, KCMs counsel (i) explained that New Rams failure to
object within the twenty day time period prescribed by CPLR 3122(a) foreclosed objections to
Plaintiff s First Document Request except in cases of privilege or where a request was palpably
improper, and (ii) demanded immediate production of the documents and ESI requested. {Id.,
When, by February 22nd, New Ram still had not responded, KCMs counsel sent an
additional email seeking to schedule a call to discussand hopefully resolvethe discovery issue
in advance of the Preliminary Conference scheduled for February 28, 2017. {Id., ^ 15 & Ex. 6).
New Rams counsel simply responded that the parties could figure everything out at the
Ultimately, the Preliminary Conference Order, dated February 28, 2017, required New
Ram to serve its response to Plaintiffs First Document Request and produce responsive documents
on March 28. 2017. (Id.,*) 16 & Ex. 7). Yet, New Ram failed to comply with even this extended
deadline. {Id,. T| 17). So, on March 31st and again on April 20th, KCMs counsel sent an email
advising New Rams counsel of New Rams failure to respond, object, or produce documents in
accordance with the Preliminary Conference Order. {Id. flj 18-19 & Exs. 8-9). Not surprisingly,
On May 1, 2017, Mitchell Geller, Esq. of Holland & Knight made a good faith effort to
resolve the issues raised by this motion. {Id., ^ 20). On May 1, 2017, Mr. Geller had a telephone
call with Clifford Greene, Esq., counsel for New Ram, regarding New Rams failure to serve its
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Response and to produce documents responsive to Plaintiffs First Document Request. Mr. Geller
stated that the Preliminary Conference Order, dated February 28,2017, required New Ram to serve
its Response to Plaintiff s First Document Request and to produce responsive documents on March
28, 2017 35 days aflo. (Id ). Mr. Geller also stated to Mr. Greene that, given the chronic failure
of New Ram to produce documents responsive to Plaintiffs First Document Request, KCM
planned to file a motion to compel if the Response and the responsive documents were not received
by Wednesday, May 3, 2017. Mr. Greene stated that New Ram would not be serving its Response
and producing responsive documents by May 3, 2017. And, while Mr. Greene suggested that
KCM would ultimately receive the responsive documents, Mr. Greene gave no date certain as to
when that might benotwithstanding the fact that Defendants Response to Plaintiffs First
Document Request was due on January 9. 2017, almost four months ago. (Id.).
The Preliminary Conference Order also required the parties to exchange names and
addresses of all witnesses and statements of opposing parties and photographs. (Id., 16 &
7). KCM served a Statement complying with this requirement of the Preliminary Conference.
New Ram, however, has failed to do so. (Id., Tf 21). During the May 1, 2017 telephone call,
Mitchell Geller, Esq., KCMs counsel, also advised Mr. Greene, New Rams counsel, of this
failure and asked when a Statement would be served. (Id.). Mr. Greene gave no date certain as to
New Ram has not served its Response to Plaintiffs First Document Request, has not
produced any of the documents or ESI requested in Plaintiffs First Document Request and has not
served the Statement concerning witnesses and statements of opposing parties, as required by the
February 28, 2017 Preliminary Conference Order. (Id, 1 22). Defendants continued refusal to
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comply with the February 28, 2017 Preliminary Conference Order and its discovery obligations
POINT I
CPLR 3101(a) states that there shall be full disclosure of all evidence material and
construed. See, e.g., Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 405-407 (1968); Reid v.
Soults, 138 A.D.3d 1091, 1092 (2d Dept 2016). Discovery is permitted of any facts bearing on
the controversy that will assist in sharpening the issues for trial, ONeil v. Oakgrove Constr., Inc.,
71 N.Y.2d 521, 526 (1988), and extends to matters that may lead to the disclosure of admissible
proof, Montalvo v. CVS Pharmacy, Inc., 81 A.DJd 611,612 (2d Dept 2011), or may be used for
rebuttal or for cross-examination, Robinson v. Meca, 214 A.D.2d 246, 249 (3d Dept 1995)
(Information sought in good faith for possible use as evidence-in-chief, in rebuttal or for cross-
Hosp., 207 A.D.2d 660, 662 (1st Dept 1994). Moreover, the party opposing disclosure has the
burden of showing that the disclosure sought is improper. Roman Catholic Church of the Good
Shephard v. Tempco Systems, 202 A.D.2d 257, 258 (1st Dept 1994).
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The courts of this State have consistently compelled production of documents where, as
here, the documents are relevant and the party has refused to produce such documents. See, e.g.,
Hunt v. Odd Job Trading, 44 A.D.3d 714, 716 (2d Dept 2007) (affirming order granting motion
to compel); During v. City of New Rochelle, 55 A.D.3d 533, 534-535 (2d Dept 2008) (reversing
motion courts ruling and granting motion to compel disclosure); Rivera v. NYP Holdings Inc., 63
A.D.3d 469 (1st Dept 2009) (same); Matter ofSaratoga Property Developments, LLC v. Assessor
of the City ofSaratoga Springs, 62 A.DJd 1107, 1108-1109 (3d Dept 2009).
Moreover, a partys failure to challenge [a] notice of discovery within [the twenty day]
time prescribed [by CPLR 3122(a)] foreclose^] inquiry into the propriety of the information
sought except with regard to requests that are privileged under CPLR 3101, or as to requests that
are palpably improper. Fausto v. City of New York, 17 A.DJd 520, 522 (2d Dept 2005); see
also Hunt, 44 A.DJd at 716 (Sunbeam's failure to timely challenge the notice to produce
forecloses inquiry into the propriety of the information sought except with regard to material that
is privileged pursuant to CPLR 3101 or requests that are palpably improper (citation omitted));
Woo v. Shimunov, 273 A.DJd 303, 303 (2d Dept 2000) (The failure of a party to challenge a
notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR
Here, as described above, Plaintiffs First Document Request was served via UPS
overnight courier on December 19, 2016. {See Geller Aff, *\\ 9). New Ram did not challenge
Plaintiffs Document Request during the time prescribed by CPLR 3122(a); indeed, it never
challenged Plaintiffs First Document Request. (Id, f 2). Nevertheless, now, nearly five months
after service of the Request, New Ram has still failed to produce a single document or ESI. (Id.).
Given its failure to respond or object within the prescribed time, New Ram is foreclosed from
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raising objections to Plaintiff s First Document Request and inquiry into the propriety of the
information sought is foreclosed except with regard to material that is privileged or as to requests
The requests in Plaintiff s First Document Request neither seek privileged communications
nor are palpably improper. Rather, Plaintiffs First Document Request seeks documents directly
The gist of the Amended Complaint is that New Ram has breached the use provisions of
the Agreement of Lease, dated as of March 5, 2004 (the Lease), under which New Ram is
permitted to use the subject premises only for the erection, operation and maintenance of a hotel,
for retail stores located on the ground floor of the hotel, and for the parking of vehicles related
to the business of the hotel and such stores. In late August 2016, New Ram approached KCM
with a plan to sublease the existing hotel to a third party, who would convert the hotel to an adult
homeless shelter pursuant to an agreement with the New York City Department of Homeless
Services (DHS). By an August 25, 2016 letter, KCM advised New Ram that the proposed
conversion of the hotel to an adult homeless shelter violated the use restrictions of the Lease, that
the proposed conversion would constitute an event of default under the Lease, and that KCM would
Following significant community backlash to the plan and KCMs refusal to approve the
unauthorized use of the premises, New Ram initially indicated that it was abandoning the plan to
convert the hotel to a homeless shelter. But, just weeks later, New Ram began the conversion of
the hotel to a homeless shelter, surreptitiously renting over a quarter of the hotels rooms to DHS
(or the City of New York) to house homeless adults. The Amended Complaint asserts that New
Rams actions not only constitute a material departure fromand breach ofthe use provisions
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of the Lease, but also establish a breach of the Leases non-circumvention provision, which
prohibits New Ram from directly or indirectly attempting to circumvent the requirement that it
obtains KCMs consent for any sublease. (See Geller Aff, f 8).
Plaintiff s First Document Request requires New Ram to produce documents that are
material and necessary to the prosecution of KCMs claims in this action that New Ram has
breached and is continuing to breach the use provisions of the Lease. These document requests
include: (a) the Lease itself; (b) documents constituting or relating to communications and/or
meetings between KCM and New Ram subsequent to June 1, 2016 concerning various subjects,
including New Rams plan or proposal to convert the existing Hotel on the Premises to a homeless
shelter or to house homeless persons, and KCMs rejection of New Rams plan or proposal to
convert the existing Hotel to a homeless shelter or to house homeless persons; (c) agreements
between DHS or the City and New Ram relating to using the existing Hotel on the Premises to
house homeless persons; (d) the payment of monies by DHS or New York City to New Ram for
the housing of homeless persons; (e) documents concerning communications between New Ram
and Holiday Inn concerning or relating to New Rams use of the Hotel to house homeless persons;
and (f) documents relating to the affirmative defenses asserted in New Rams Answer. (See Geller
In light of the broad scope of discovery, Defendants violation of the March 28, 2017
deadline in the February 28, 2017 Preliminary Conference Order and Defendants continuing
breach of its discovery obligations, KCM respectfully submits that it is entitled to an order under
CPLR 3124 compelling New Ram to serve its Response to Plaintiffs First Notice of Discovery
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Pursuant to the Preliminary Conference Order, the parties also were required to exchange
names and addresses of all witnesses and statements of opposing parties and photographs.
(See Geller Aff, ^ 16 & Ex. 7). KCM has served a Statement complying with this requirement,
but New Ram has failed to do so, despite the Preliminary Conference Orders April 3. 2017
deadline. (Id. ,1[ 21 & Ex. 71. Consistent with the Preliminary Conference Order, New Ram should
be compelled to serve its Statement of names and addresses of witnesses and statements of
CONCLUSION
All of the documents sought by this motion are material and necessary to KCMs claims
and prosecution of the action. New Ram has utterly failed to comply with its discovery obligations
under Article 31 of the CPLR and has refused to disclose material and relevant documents. Given
the broad scope of disclosure under the CPLR and New Rams failure to object to Plaintiffs First
Document Request, New Ram should be compelled to serve its Response to Plaintiffs First
For the reasons set forth herein, in the accompanying Affirmation of Mitchell J. Geller, and
the exhibits annexed thereto, it is respectfully requested that KCMs motion to compel New Ram
to (i) serve its Response to Plaintiffs First Notice of Discovery and Inspection, dated December
19, 2016 (Plaintiffs First Document Request), and to produce the documents requested therein,
and (ii) serve its Statement of names and addresses of witnesses and statements of opposing parties,
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