Lawi Zekry v Zekry

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Lawi Zekry v Zekry 2012 NY Slip Op 30104(U) January 18, 2012 Sup Ct, NY County Docket Number: 102550/2008 Judge: Deborah A. Kaplan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 111812012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK Index Number : IO255012008 ZEKRY, NICOLE LAW1 - NEW YORK COUNTY INDEX NO. V l ZEKRY, PINHAS fflOTlON DATE Sequence Number : 026 MOTION llQ. NO.. VACATE NOTE OF ISSUElREADlNESS MOTION CAL NO. fhm following pspmn, numbered 1 to w m mad on thb motlon to/for Notioe of Motion/ Order to Show Cause - Affldavtto Anuwdng Affldavita - Exhlbltr - hhtbftr I ... AffMavb Croers-Motion: Yes e4mummw No Upon the fongolng papsm, it k otdemd that thh m o h FILED JAN I8 2012 NEW YORK COUNJY CLERKS OFFICE _ - . . . , Datsd: 4. J.S. C . I Check one: 0 FINAL DISPOSITION WNON-FINAL DISPOSITION Check if appropriate: DO NOT POST 0 REFERENCE 0 SUBMIT ORDER/ JUDG. c SETTLE ORDER/ JUDQ. ] [* 2] At the Matchonid Tenq Part 20, of the Gupmu Court of the State ofNew Yak, held i end fbr the County ofNew Yo* at n the Co~,uthouae themf, 60 Centre Stre&, New York, New York, on the 10th day of January, 2012 PRESBNT. HON.DEBORAH A. KAPLAN X -Y3---------------I NICOLE L W ZEKRY A Plhtiff, -against- Dacidon and order Motion Seq,: 025 and 026 Index No. 102S50/2008 PlNHAS ZEKRY and DAVID BEN BAFLOUCK, COW,, FILED JAN 18 2012 D E B O M A. KAPLAN, J,: NEW YORK CoUbJmCLERK S OFFICE Motion Wuunw nos. 025 and 026 am consolidated for disposition. In motion sequence no,025, plaintiff Nicole Lawi zekry (L&) movoi for an order: (I) pursuant to CPLR 3212, granting summary judgment in her favor 88 t Habitity and compensatory dmnagua on the o first, second, third and fourth causes of action; (2) d k h g an immediate trial BS to the amount and extent of punitive damages for the third and fourth causae of action; and (3) dismissing the counterclaims asserted by ddimdaats PInbas Bkry (zakry) and R David Ben Barowk, Corp, (Barouok Corp). Def endants cmu-move for an order: (1) p m a n t to CPLR 3212 (d), denyins Lawi a motion h r summary judgment on til0 basis that facts asatid t justifL opposition may o exist but cannot be ststcd until the completion of discovery; (2)pursuant to CPLR 3 124, compelling Lawi to atlswc~ questions aet forth at her deposition held on April 29,2010, and produce the doomants requested therain; and (3) pummt to CPLR 603,severing dofandants [* 3] countmMms, in the event that M court daterminm that they cannot maintain thah a counterclaims at this time. In motion sequence no. 026, defcndmb move f&ran order, putsuent to 22 NYCRR 1202.21, vacating LBwi s note of h u e on the ground that d h o v q ia not oomplata. The p d e a uxecutedan agreement on April 20,2004, whareh they created a partnatrrhip for the purpose of operating a hair don, spa and cosmetology businma at 428 Columbus Avenue, Now York, NY (the Shareholdam Agreement), under Barouck Coq. Pummt to the Shamholdam Agreement, the &arcs, to L& and the net profits and losses were t be d M d d W ? o and 60% to Zahy. In February 2008, Lawi commenced this adan against Bmuck Corp. and Zalt~~, as ita President, Treasurer and 60% sharaholder, amwrtingthe following causes of action: reformation of the Shareholder Agreement (first); breach of contract (sacond); b d of Zakry a fiduciary duties (hr) conversion (fourth); and b u d in tha inducement (W).Wwantially tid; hi w alleges that she did not receive hur proper share of the corpomtion s profit8 ae a rsault of Zday% manipulation of the corporation sbooks and recorda, divmion of cash and other 888et8of tho corporation and false claims of grimly inflated axpaasas incurred by the wrpotatIoa She now seeks summary judgment on her f througb fourth cawas of adon. h t The proponent of a summary judgrnant motion must make a p h a k i a showing of entidemat tojudpnent 88 a matter of law, tendering mflloient evidence to demonatrate the absence of any material issues of Fact (WInagradY New Yor&Cmlv.Med Ctr., 64NY2d 85 1 119853). O m a prima b i t showing has been made, the b d a n then shifts to the oppoaing party, who must proffer evidence i admissible form establishing that an lasue of fact txfsta, warranting a trial of n 2 [* 4] the acdon (Alvarez v Prosprct Hop., 68 NY2d 320 [1986J). Tho drastic rem* of summary judgment should be grantad only if there are no triable issues of h t (Rotubaktm&rs v u C q p , 46 NY2d 223 [t 9791). Th0 court s h t i m is not to amwj crectibiity (sed Ferrmtu v Anterlcnn L w g Assn., 90 NY2d 623 [199q), or resolve issues of e , mthar to determine tbut whether material imea of fhct oxlst (see Sillman v llventieth Cmtuiy-Fox Film Corp,,3 NY2d 395 11951). h w i saaks summary judgment on her first c~1u8e action for equitable of reformatJon of the Shareholders Agreement to provide har with 71.1% of s h of the B m o k Corp., h b a d of thu 40% she currently o w thereundar. 9efore mhrmation of 8 contraat may be granted, a party mwt ostablhh his [or her] right to such relief by cluar, podtiw and convincingevidence (Ribacofv Chubb Group of Im. Cos,, 2 AD3d 153, I54 [tat Dept 2003), sinceit i s pmsumd that a deliberately prapared and axeouted witten Instrumeat 8caurately refltcts thu truu Intention of tho parties (Greater N m Yor& Mu?. Co. Y UniredBaftw Im. Undewrit8rsIm. Co., 36 AD3d 44 1,442443 [1st Dcpt 20071). A claim for refomlation must be based on either mutual mistake or fiaudulantly M c d udlatarel mistake (Frash Dd Monte ua Produce N.Y. v h t b r o o k Caribs A. V; V,, AD3d 55 1 [1at Dept 20073; see also Chimart Assoc, 44 v Paul, 66 NY2d 570 [1986]), and the proponent must show i no uncertainterma not only that n mistake or fraud exists, but exactly what wa8 really agreed upon between tho parties (Qrmtw New YorkMut. Ins. Co. v Unltdd Statss Undamrters Im. Co., 36 AD3d at 443, quoting huh Fork BroahatfngCorp, v Amton, 141 AJ32d 3 12,3 15 [1st Dqt], lv dis 73 NY2d 809 [19881). L a 4 d m not seek reformation based on mutual mistake. Shu hutad urgw reformationof the Sharchaldm Agreement on the ground of Zakry a purporcad ft.audulantly 3 [* 5] hducad unilated mistake regdng his capital contribution of $472,300. With unilateral mistake, Lawi must demo- that she w 1 ~fraudulently misled by Zeluy, 8 agreement does not m r s r tho Intended agreement ( w e GreafsrN w p aa d and that their York Mur. 1 . . Co. v United States Uniierwriters k'm. Co., 36 AJ)3d 441 supra), In support of her application, Lawi claime that, pursuant to paragraph 13 of the Shareholders Agrement, the htunt w a t apportion ownerahlp of the shares between h8r and ~ o Zekq f accordan@ wlth their raspactive inItM capita1 contributions. She rnfdntah that ay n k x reprcmted that he had paid $472,800 towards tha startup cash of the bujinarrs, and that she pald ~ W O expenses, Le, $189,120, for a 40% share of the buainms, wbilc he mtahd a 609% of those sham bawd on his alleged net capital conlribution of $283,680. She contends that, during the partied d v o m p d g s , &e learned that the true startup costs were $1 76,971, rather than the amount represented by zckry, and that of the $176,971, $100~000 origimtd h m a loan from RAV,a company owned by the pardw. Sho thug arpw that, akry fraudulently mhpreaentcd his actual capital contribution, and that, accordingly, the Shareholders Agreement should be reformed t reflect h a ownenhip an 7I,]% o of the stook. The paragraph upon which L a d mti~ claim provides, in relevant part, a~ her follows: sheraownership a, The shares of [Barouck Corp,] shall be f d aa follow: To [Zukry]: 60% for the payment of $283,680,00, am his and above set forth of the total sham in r t r for the considemtionof the eun know-how and managerial uxporfonccs, and i f tu of nh m r 4 [* 6] management and avaflabllity of selling and work force and personnel, which he hm invested I the corporation and in a n facilitating the consttuction of the premises. To mwi:40% for the payment of $189,120.0O as hereinabove sat ] forth. (id, 13 Shim Ownership at 9). The law I ~Il-sottled the padus intention should be detarmined h m the s that latrguage umployed within the four comers of their agmrnent, and that where the lansuage is clear and unaquivocal, interpretation is a matter of law to bo dotndned by the court ( H t u r d Acc. & Indem. Co. v Wesolowski,33 NY2d 169 [19731; see also American B p r w Bank v Wnimyul, Inc., 164 AD2d 275 [lst Dapt 19901, appeal dmid77 NY2d 807 119913). Contrary to Lad s contention, the language in the aforementioned paragraph does not provide for the distribution of the budnas 8 ebarcs basad solely on tbt partiat respdve financial aapitat contributions. Wbile the pmvinlon olaatly and unambiguowly provides for Lawi s receipt of 40% of tho &ares based solely on her financial contribution of $189,120, Zukry e receipt of 60% of the a h was based not only on his payment of $283,680, but ala0 his p e m d investment i the business, Including, htar afia,his knowledaa and managerial n expdencas, his work force and personnel, snd hi8 facilitation of the wnatruotion of the pmnim. Therefore, even asmrming, arguundo, that L a d could damonatrate that zakry mierepresentad his actual Initial capital contribution to the busharia, &e MISto demonstrata, i n no umrtain terms, that, the language of the Shareholders Agreement provided for the division of ahare ownership based soluly on the parties respective Mbid h i d contribution (SouthFork Bruadcmtlng Corp v Fenton, 141 AD2d at 314). Since hwi fall8 to meet her initial burden 88 S [* 7] the movant to establish a prima hcit entittament to sumrnaty Judgmenton her fmt cw of a action for reformation, it is not necessary to aonsidar whether Zekry r opposItlon papara were sufliduntto raise e triable issue of fact regatdiqg the amount of his purported inwtmant in the b&ws (sea Wtnegard w New York Univ. Med Or.,64 NY2d 85 1 [1985I). L a d also moves for summary judlpnent on her aacond cause of d o n for bruauh of contract based upon Zekry s purported f h h e ta prod& her fair share of the profits of the business from 2004 throu& 2008. EssmtMly, she elairna that Zekry purportedly removed caah revenueti h m the bugitless s & and did not deposit all these Amds into the bushass shank , account, nor provide her with her distributive share of thetie flnds, pursuant t the tarms of the o ShareholdersAgreement. In wpport of har allqptioons, she explains the procedure purportedly followed by her, during the period she workud in the bus-, for kcaping daily and d y records of its cash and credih receipt fbr tho sawices rendered by the styli at^. She rpaintaInsthat these records were handwritten by the mmptioniats of the business, including harsalf, and,also e n t d into the businem s computer. !&e submits the report of her 0xpart, Anthony P. Valmti, the manaplngdircctor of Stroz Fritdbarg U P S Global Businass Intelligence and Invaati@ons Division, who opines, b d upon the buBltless s computer gmeratedprltttout of gross snlm for 2004 of $841,856, and its f u d d tax return reporting total gross raceipta of $S99,697, that tha business under reported income in the amount of S 140,429, of which Lawi should have received a distributive slhara (Expert Report dated 5/16/11, at 4-5). H Mr o p i n that, a masonable o e ~ estlmatc of f b t m actual operational d t a for Bhrouuk Corp. on a good faithhast effort basis would be at laast consiatent with their actual results for 2004, or $140,000, m aM for the ul period 2005 through May 3 1,2008 (Report at 5). 6 [* 8] Additionally, Lawi clatrna that the dgntflcant cash revenueugeneratad by the businm were placed into its safb and removal by zakry, approximately once a wwh, ostensibly for deposit into the business s bank accowk She contend8 that she later learnad, fkom a review of the bwhs a bank account records, that he rarely deposited cash t m (Exhibit 24, the h l n b u s h a s bank accounts h m Cidbank datad 32/03 through OS/OS). She thus argwstfrrrt, Zukry s purported actions in, Inter a h ,wrongfblly diwrthg the 4revenues of the budmu, . without providing her with her distributive amount, entitles her to summary judgment on her h c h of contract claim. Zakry opposes Lawi s motion, a r & ~ that thara am quoations of fact and cralibilhy that preclude summary judgaant, Refbrrlng to h w i n deposition, he maSataIPs that, as tho parson who collected the cash in the busheas, h i had tba opportunity to access this w money, and do whatwer she wanted with It. He refen to those excarpta of her deposition, wherein she testified, amon,gother things, that she collected the cash and oredit card papants from clents in the busin= (Zclay a Exhibit 3, Lawl a deposition held on 4128111 at 191, that she bad keya to tha (id at 10) and t the aafa where the money WBS kept (id a 24), and that she o t sometha received cash, as a oash bonus and for certain scdcas she purforrnud i the businem n (id at 59). H maintains that he did not ateal a penny h m the income of the don (af ¬ldavit e dated 7/6/11 at 15). H also disputes the accuracy of the weekly and daily records relied on by e Lad, arguing that she h c r ~ ~ l f - t d them recorch to prove that there w88 a cash profit h the business. Additionally, he notes that her apart s mport d not account for the paymant of the m business s expenaw, including sdariw of the stylists, some of whioh 8ha acknowledged were mmtimas paid i cash ( L ad s deposition at 149-150). Zekry fhther aubmita doomantation, n 7 [* 9] wbiah he claims reflect Lawi s receipt of uash fhm the b u s h , that she has not acknowledged in this action. In raply, hwi contends, Inter ulfu,that Zekry M s t raise a triablo iasw of k, o t arguing that some of the documentation he submits are either pmuluded, irrelevant or not pvioualy produced. Here, L fails to make a prima fide showlng of ancitlement t judgment 89 a a d o matter of law on her second c w of action for breach of contmt (WI Alvarw v Prospact Hosp., a 68 NY2d 320 [19861). The elements of a cmw of action to recover damages for breach of contract are the existence of a contraot, pldntlflpsperformance under the contract, &fendant s breach of hin obligations under the contract, and damagea mlting fbm that breaoh ( H m f sY &ward Park How. Cop., 79 AD3d 425 [1at Dopt 20101; Furla v hria, 1 16 AD2d 694 [2d h p t 19861). While L a d demonstrates that the ShacehoIdmAgreement provida for, fntsr alia, tho distribution of profits 40% to Lawi and 60?? zakry, after the deduction of all expanaas to @ m i s Exhibit 4, Shareholders Agreement, 6 at 2), she f& to demomtrate BS a matter of law that he breached this provisioa. Her cldm Is primarily reliant upon her mitation of the purportad fkts regardingthe manner that caah and oredit payments for services were recordud, and her claim that akry removed th0 cash revenues that were in the business s safe, without distributing her proportionate share of the profits to her. This court no& that h w i submits a copy of a wmputer printout, whiah mflect total SmhSales of $841,856 in 2004 for the business. While h i alleges that this amount was caldated fiom the sums enwed by her into w the businas s computer, and that this amount also confotlp~ With the daily and weekly m r a od SEte created, the record is notably absent of thu daily and wcukly recorch supporting Bucb [* 10] caloulations for that period. Thus, thm is a question of hct as t the acQuplGcy of suoh o calculations, whioh &lay 1 ontitlcd to challenge and question, 8 Accdh@y, tlm expert s opinions, which arc basad on mattem that am Strictly f8ctusl,and d l i dispute, ahodd bod be n left for the trier of fact to determine whather to aucept ur rqjaet them (sod N&on v Schwartz, AD3d - 933 NYS2d 880 [2d Dspt 20113). Furtherf L a d relies on her own awrdons that Zakty rcmovd cash ftom the businuss s safa. However, her deposition r0fluot.mthat keys to the &e were not only held by Zckry, but also Zuk&s &or, JwMe, and humelf (1;swl a dopoaition at 144445). Thmfomf othars beside Zekry had accm t the contents of the o s thus raising a question of f b t aa to a whuther it was ztltry who moved aa& therefbm, as claimud by Lad. Additionally, whfla Lswi acknoddgaa that tho Shareholders Agreement providos for the dtstdbdon of net proflts (id at 106-107), she admitted that her daily and weekly records did not Include operating exptnsea of the bwinem (Id. at 91), at 59,113). and that she occasionally received cash from tha buainaas (id She ala0 stated that, while the weekly records p m d u d mflsot paymenb t the o stylists, t v do not indicate whethar they were paid In caab or otharwfsa (fa! at 191-192), but h aho, hoyever acknowledged that some @lists were a times paid i cash (Id at 58,149-150). t n Thus, them are Etlso questions of fact as to what, if any, o q m w s ware paid in cash, and the amount of nut prolats, if my, that are due and owha to h i under the Skholdors Agraament. w Since Lawi r own deposition and exhibits trttse questions of fact that pmluda summary judgment on her claim for breach of contract, this uourt n d not consider the doomantation submitted by Zekry, some of which ha acknowledges wodd ba excfudod at trial, but worn submitted for the purpose of denying summary judgment (see Ruhncump v Arrow 9 [* 11] Lawi also moves for summary judgment on her third and fourth caws ofaction for breach of ffduciary duty and conversion, essentially based on the ~ame albgations oupprtLng her bmch of contract claim. A breach of fiduciary duty claim r q m the existence of a ed a fIdudsry raIadonsMp, misconduct by the defendant, and damages dlrootly m dby mch m misconduct (Burry v Madison Park Owner LLC, 84 AD3d 699 [1st Dept 20113; ouarfno u North Country Mfg8. Bunkfng Coy., 79 AD3d 805 [2d Dept 2010]). It is well add that n mJodty aharoholdat i a closely held corporation owoi a flduohy duty t minority shmholdam (Cenfro n o hprtmriul Cemprssa S.A.v America Movil, S A.B. da C V., 17 NY3d 269 [20111; sea also . . Brunetti Y Murallam, 1 1 AD3d 280 [lst Dept 20041, affd orp d @ e d 59 AD3d 220 [lst Dept ZOOS]), As for convdon, it quires %n unauthohdmumption and exercise of the right of ownmhip over good belonging to another to the axdusion of the owner'^ rights (Peters Gr#h Woodward fnc. v WCSC,Inc., 88 AD2d 883,883 [lst Dept 19821). Qoods may include [mJoney, i sptcifically identifiable (ld at 883). f Since the basis of these chhm r8sta on Zskry a purported m r t provide hor u o e with the net profits h r n 2004 through 2008, arising fiom the a s h revanua ha putportadly removed h m the business, and, as pviounly discussed, there are f aotual i a mgarding these ma allqationa, Lad s application for ~ u t l l m mJudgmenton her c l h for h of fiduciary duty y & and uonvursion is denied. That branch of hwi s application for punitive dameges is also denied. In view of the numerous Issuesof fact preaent i this action, a determinationcannot be mad&as a matter of n faw, m t whether Zakry engaged In any willftl, wanton and mklaas misconduct" (me Giblh Y o 10 [* 12] Murphy, 73 NY2d 769,772 [19881). h w i also m o w for ~umtnary judgment dismiseing the thhtuen countemlaims asaarted by Zeky and Barouok C o p for: breach of fiduciary duty (fmt); breach of contract ( m n d ) ; conversion (third); unjust enrichment (fourth);reformation (fifth); fraud in the inducement (sixth); gross mismanagement (wventh); misappropriation (eighth); accounth~ (ninth); pudtiva damages (tenth); fraud (elevmth); slander (twelfth); and attorneys' f a I (thbenth) (T,awi's Exhibit 2 VarMBed h w o r and Countercldm dated 3/12/08). In support of , her application, she argues that Zekry'a Invocation of his Fifth Amendment privilege during bis deposition held on A p d 29,201 1 prevented her &om obtaining discovory relevant to their claims. Zekry appaaaar this branch of Lad'smotion, claiming that he properly d m i t t d a CPLR 3 116 errata shaut, within 60 days from the day of hi^ deposition, which revokes his h v d o n of the Fifth Amen'dment with respect to cartah quastions mlatad to hie oounterclaIms. H ,thw requests that defendant's counterulajms not be dismissed, or alternately, the e countarchaims bo severed, pursuant to CPLR 603, In reply, hwi claim8 that the changm contained in Z ~ ~ I Yemta sheet are 'S outddc the soope of CPLR 3 116, and, ftrther that allowing the changes would unfairly prejudice her. CPLR 3 116 (a) provides, in relevant part, h i t : "the deposition shall be submitted to tho Witness fbr examination and shall be read to or by him or k , any changes i form or rand n substance which the witness d h to make ahdl be entered at tha end of the deposition with a statement of the mr~ by the given witnads fbr makin8 them....N changaa to tho transcript may be o 11 [* 13] made by the witness more than dxty days after submission to the witness for exdmtion. It has boon hold that a witnaas may make substantive changas to his or her deposition testimony provided the changoa are accrompaded by a statument of the reasons therefor (Clllo Y R q j ~ aGorp, 295 AD2d 257,2!37 [lat Dept 2002]), l A review of Znkry a deposition dsclosas that he invoked Me Fifth Amendment prlvllege as t every aubatantive question asked of him, Inchdin8 those addremslng defendants o countercldr~~ (Lad s Exhibit 26, Zekry s depdion held on 4/29/11). In his arrata sheet, May revokes hfs pdvilegu to a limited scape of q h o m , and raspond#to certain questiom, including thow u o d n g the counterclaims. The ruamn p v i d u d is his purported belief that when ht originally anawered the qudons, he * was propdy Utilldng @a] Fifth Amendment rights m d would not be penalized for doing ~ 1 ;ho now bclieves that he can mmer the q d o n a aa b e haa] dona mWly and dll r d n them (&lay s ws]Fifth Atlwndment righta in arura wm [ha haa) as& h Ex.21, the Errata Sheet dated 7/64 1 at 76) It is noted that, in Zckry s deposition, it w89 statcd that he wag invoking hi8 privilege basad upon advice given to hhn by his odminal attorney, which conflicted with the advice of his counsel in thh action, Hero, zkkry s emta ahcct WBS properly prepared i that tho changw w m made n within 60 days of the submission of the deposition to him on May 20,201 1 (sars Zakry a Exhibit 20, Comspondcncu h m Lad s c o w e l to hkty e c o w l &tad May 20,201 1), and that it contains the requiaitc statement of the reasom h r the c h q o (CNo v Re&fid Corp., 295 ADZd 257, supra), Them corrections, however, raise issuea that ahoutd bast be I& to the trier of as to w h e k they are mdiblc, and i they am not found credible, a determine BS to tho f 12 e, [* 14] inferenmi to be drawn from that finding (see, fd; Blnh Y Bawd USA.,286 AD2d 613 [lst Dopt 20013). Additionally, as pmiowly clhwaud, them me numerous h t u a l Issues r a i d in the record that are related to defendants counterclaim$ thus warrantin8 the denial of kwf a motion for dlltnmaryjudgment diemissing defendant s counterclaims. Accordhgly, Lad s motion, in motion aquanca no. 025, Is d d c d i its endruty. n In m t o saquenca no. 025, defendants mom-mow for an order compcllin~ oin Lawi to anawer certain questions that she purportedly did not mwer d u b 4 her deposition bald on Apdl29,2010,and produce tha documents r q m d thaela, au e Lawi oppsts &fendants application, arguing that the history in this case rcgardhg discovery demonstrates that defendants diswwry requests arc i n d d and improper, i that they suck to obtain discovery after havhg missed the coutt-ordmd dadline fbr swing n dowment q w s t s and interrogatories, and, as a d , waived m right to cUscovaty, Tho t have y mlevant prior history mfcrrad t by Lad, includes: (1) a Complimce Codmnw Order o pmvidb that dafendant must m e any requusta for discovery and inspection, aa wall ae any interrogatories, by August 6,2010 (Afjirmation of Manvin Maycll dated 7/6/11, Exhiiit A, CompU;anceConftmnce Order dated 7/21/10); (2) a Decision and Order denying defendants raquest for an atemion of the sfomentionad deadline, wharaln it held, intar uflu,that def a&ta haw Mlad to demonatrsta p d c w for their moat recent faflure to comply with a this court s compliance ordtr and timely m e their requests upon [Lawi1 (Id, Exhibit B,Notice of Cross Motion dated 1 / U 0Exhibit C, h h i o n and Order dated 71/7/11) (the Prior order); 011; and (3) a second Compliance Order prcrvidhg that party depoaidona and all other dincovary waa to be completed by April 30,201 1, and requiring Lawi to fila a nota of issue on or before May 13 [* 15] 30,201 1 (id;Exhibit D,Compliance Odor dated 2/16/11). P m a n t to CPLR 3 124, a party seeking disclosm may move to compel compliance or a tespofl13r3,"if a w o n fdls to raspond t or comply with any requat, nodca, o CPLR 3 101 (a) requires '%I1 dtsclosuro of all interrogatory, drmand, question or evidcncc matter material and nece888ryn to prosecute or defend an action (Romm Cutholic Church o Good Shephsrd Y Tempo f&s., 202 AD2d 257,257 [lst Dept 19941). However, "[a] f party ia not entitled to unlimited, uncontrolled, unfetttrcd Cusclosure, and tho aupwiaion of discovary is genarally left to the t f court's broad discretion" (Ggner v Mwcy Mad. Ctr.,83 rd AD3d 998 [2d Dept 20111). Hem, the c w propdy wt forth dimwry ddlha, allowing defendants ample o opportunity to m e domununtation damands or interrogatories on Lawi.. The record cleerfy reflects that defend- did not d e any effort to comply with these deadlines, nor darnonstrata any good,reason for having failed to do do. As a mdt, this court, in it decision dated January 7, 2011, denied defendants' request for an a t d o n of time in which to m e discovery demands on L,awi'. D48pitu the Prior Order, Zakry now s h to obtain docurnants and more detailad w mponsea, claiming that the t r d p t of hwi's depodtion "showa numerous ruquata for information which was dthheld" (Zekry's affidavit dated 7/6/11 at 24). Defendants, howwar, do not point to page numbers therein, or make arBuments &ut specific quetdona that warn purportedly not answered, but rnurely provides tha unth transcript of Lawi's deposition for the 'f defendants bal ¬wcd such denial w hpropcdy panted by thta court, the remedy I that f 8ueh purported error w l l a timely motion for reargument, pursuant ta CPLR 2221 or a timely m ~ appeaf, pursuant to CPLR 55 13 (see BmdfuzY C/& o New York,2 AD3d 285 [1st Dept 2 0 ] , f 03) which WBS not done. Thus, this order is final (fd). 14 [* 16] court to dft through. Nonothelaas, this court has reviewed the tram~cript.The transcript dlscbsw: (1) one instance where defendantit counsel sought the production of the daily rccords &om the business that were in Lad s poasregsion (zakry s Exhibit 3, kiwi s deposition takan at 29), and (2) dx htances where defendants' aounsal a s k d Lawi qudona, to whhh she could not rtcall the answers to (Id, at 31,43,48,52-53,6263, and 153), and that he requested that a spx be left in the transcript so that she could fill it In after B~C Shad aa opportunity to asombin the answer to [the] question[s] (fd a 3 1). t As argued by L d defendants sought to a, trarufom her deposition into (1) EL de fhcto iutmogatory, by asking bcr to later provide hfomtion for thow questions that want beyond Lawi s knowledge at the dma of the dopoddon, and (2) an opportunity far gtnaral document dlscovcry, by making a new quest for the production of documents. In light of the defendanta failure to am ¬Iitself of the opportunities praviously provided i the compiiance orders, and the rwulting determinationin the Prior Order, n defendanta waived any right they had to additional discovery (Colon Y Yen Ru An, 45 AD3d 359 [1st Dept 2OOTJ;Rossnbwg & Estfs,P.C. ~t Bergos, 18 AD3d 218 [1st Dept 200q). Thmhro, defendants cross-motion to cornpal is denied. Ia motion suquence no. 026, defbndantsrnovo for an order, pursuant to 22 NYCRR 5 202.21 (e), vacating Lawi s note of h u e on the ground that discovery is not complett~ Tha section relied on by defandmts, provides In relevant part, 89 follows: [wJithin20 days aftur service of a note of m and cerdficata of e m b s , any party to the action may move to vacate the note of ime, upon af ¬ldavitshowfng i what reqecta the case is not n ready for Mal, and the court may YItCBfo the nota of lasue if it appears that a material fact in the c d c a t a of readinase is incorrect, or that the certificate of readha MISto comply with the requirements of this section in Borne material raspaet, .. 15 [* 17] (22 NYCRR 8 202.21 [e]). In support of dafmdantd claim that dscovory a not been compdcd, they rely on: (1) hwi s purported Mlwa to produce douuments and m w e r s to certain qWgtiona during her deposition; and (2) thu failure of the temporary receiver, appointed, in COMdOKI with the opamdon of Barouck Corp., to file an accounting. As previoualy dhuesed, discovery ta not outstanding with respect to defundants fitst basis. With respect to the second bash, defbndants allege, i a concIusory fashion, that tbs receiver s accountingis ralwant to the issues i thh 0898 n n regding the valw of Barouck Corp. Thfs court notes that C P n 6404 m d a temprary qw receiver to keep written accounts, inter aZia, ibmidng receipts and expenditures, Whioh ahall ba open to inspection by any parson haviug an appmnt intorest In the proparty and upon motion ...of any person havingan apparent interest in the proptsty, the court may rcquh ...presentation of a tempomy receiver s accounts .... Here the failure to hpect the accounts does not just.& the vacatur of the note of issue (Rosanberg h &th, P.C Y Bwgos, 18 AD3d 218, supra). . Further, defendants fail to indcata in what manner suoh accounts are relevant to any factn currently in digputa. Therefore, defendants fail to demonmtc a basis for v w t i n Lawi s note of ~ Swue. Thus, the motion is denied. All mattun not specifically addremud are denied. Accordingly, it is ORDERED that the parties respective motion and cross-modon, in motion sequence no. 025, am denied; and It in fiuthar ORDERED that defendants motion, in motion scqumco no. 026, for an order Vacating the note of f u is also denfad, and it is fbrther m 16 [* 18] ORDERED, that the pdeer are directed to appear on February 13,2012, in Part 4 4 60 Centra Street, New York, NY 10007, at 9:30 A.M. for trial, and it i fhther s ORDERED that counsel for Plaintif ¬'h directed to serve the within order, with Notice ofBntty, within tan days of mtry, upon counsel for Defendant. This constitutes the Dcuision and Order of the Court. ENTER: '72cLKucec HON.DEBORAH A. J.S.C. DEBORAH A K A P M J.S.C. FILED NEW YORK COUNN CLERK'S OFFICE 17

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