Siegel v Siegel

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Siegel v Siegel 2012 NY Slip Op 32372(U) September 7, 2012 Sup Ct, NY County Docket Number: 114101/10 Judge: Manuel J. Mendez 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. _ . .. . lNED ON 911312012 __ . ... [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: a L J. MENDEZ PART 13 Justlce MARTHA L. SIEOEL, as the Executrlx of the Last Wlll and Testament of HERBERT A. SIEQEL, doceaied, INDEX NO. Plalntlff, 114101/10 08414-20 -againstLLOYD M. SIEGEL, The following papers, numbered 1 to motlon to Compel or Strikg A n e w [ 6 Notlce of Motlonl Order to Show Cause Answering Affldavlts - Exhlblts -Affldavltm - c r o i i motlon Exhlblts PAPERS NUMBERD ... 1-3 4-6 6 Replylng Affldavlts Cross-Motlon: ent and Crovi- were read on this mot1 X Yes No Motions submitted on February 16,2012, under Motion Sequence Nos. 002,003, 004,006,007 and 008, were stayed pursuant to the February 16,2012, decision of the Supreme Court, Appellate Division, First Department, under Motion No. M-67 (2012 N.Y. Sllp Op. 64480(U)). Ail matters were stayed pending a hearing and determinatlon on appeal of Motion Sequence 001, this Court s Decision and Order denying defendant s motion pursuant to CPLR $321I [a],[7], seeklng to dismiss this action. On August 14, 2012, a Decision and Order was rendered by the Supreme Court, Appellate Division, Flrst Department, unanimously afflrming this Court s decision (2012 N.Y. Slip Op. 06944), and the stay is vacated. Defendants motion submitted under Motion Sequence 002, pursuant to CPLR 53212 [a][b] and CPLR 53214 [b], seeks summary Judgmentdismlssing this action as barred by the appllcable statute of Ilmltatlons. Piaintlff submlts a cross-motion pursuant to CPLR 93124 seeking to compel defendant to comply with previous dlscovery Orders including responses to the demand for a Bill of Particulars, alternatively pursuant to CPLR 53126, to strike the defendant s answer and pursuant to 22 NYCRR 130-1. for sanctions. I , Defendant s motion submitted under Motion Sequence 003, pursuant to CPLR 2221[a][2], seeking an Order granting renewal of a previous Compliance Conference Order dated October 5, 2011 and a protective order pursuant to CPLR 93103, modlfying the October 6,201 1 Compliance Conference Order to direct plaintiff s deposition be conducted in New York, New York and not Rochester, New York, staying all party and non-party depositions pending a declslon on Motlon Sequence 002 and vacating plaintiff s CPLR 93121 notice seeking to have the defendant submit to a psychiatric examination. Defendant s motion submitted under Motion Sequence 004, pursuant to CPLR 93124 and CPLR 93126, seeks to compel plaintiff to provide adequate responses, answers [* 2] and document production and issuing a stay of plaintiff8 deposition pending compliance with interrogatories and document requests. Defendant's motion submitted under Motion Sequence 006, pursuant to CPLR 93123, seeks a protective order striking the plaintiffs Notice to Admit on the grounds that it seeks confldentiai and prlviieged Informatlon; is' an unavailable discovery device prohlbited under the circumstances of this case; and it Improperly seeks facts in dispute. Defendant's motion submitted under Motion Sequence 007, pursuant to CPLR $3103, seeks a protective order, on behalf of non-party Roslyn Slegel, staylng her deposition and quashing the subpeona duces tecum as overbroad and oppressive. Plaintiffs motion submitted under Motion Sequence 008, pursuant to 22 NYCRR 130-1., seeks costs, sanctions and attorney fees, for frivolous motion practice and in I violation of Rule 8 and Rule 10 of the Rules of the Justices of this Court and for the defendant's failure to comply with the Preilminary Conference Order dated August 3, 201I and the Compilance Conference Order dated October 6, 2011 and pursuant to CPLR 93126, seeks to have the defendant's answer to the Amended Complaint stricken. The amended complaint asserts causes of action for breach of contract; imposition of a constructive trust; unjust enrichment and conversion (Mot. Seq. 001, Exh. I). The complaint further asserts causes of action for an accounting; permanent injunction and a declaratory judgment flnding that Lloyd Siegai took proper and legal title to 261 shares of Capital Stock in Ardsiey Tenant Corporation in or about February 1986, which is null and void and contrary to law (Mot. Seq. 002, Exh. 1). in order to prevail on a motion for summary judgment pursuant to CPLR $3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admisslbie evidence, ellmlnatlng ail material issues of fact (Klein v, City of New York, 89 N.Y. 2d 833,676 N.E. 2d 648,662 N.Y.S. 2d 723 [ISSS]). To establish prima facie entitlement to summary judgment CPLR §3212[b], requires an affldavit of merit by a party with personal knowledge of the facts. Once the moving party has satisfled these standards, the burden shifts to the opponent to rebut that prima facle showing, by producing contrary evldence in admissible form, sufficient to require a trial of material factual issues (Amatuiii v. Deihi Constr. Corp., 77 N.Y. 2d 626, S71 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]), in determining the motion the Court must construe the evidence in a ilght most favorable to the non-moving party (SSBS Realty Corp. v. Public Service Mut. ins. Co., 263 A.D. 2d S83,677 N.Y.S. 2d 136 [N.Y.A.D. lot 19981 and Martin v. Briggs, 235 A.D. Dept., Dept., 2d 193,663 N.Y.S. 2d 184 [N.Y.A.D. Iat 19971). The affirmation of an attorney having no personal knowledge of the facts is hearsay, insufflclent for purposes of summary judgment, and a basis for denlal without a need to address the sufflclency of the opposing papers (Batista v. Santiago, 26 A.D. 3d 326,807 N.Y.S. 2d 340 [N.Y.A.D. lot 20061 and Currle v. Wiihouski, 93 A.D. 3d 916, ). Dept., 941 N.Y.S. 2d 218 [N.Y.A.D. Znd Dept., 20121). Pursuant to CPLR §213[2], claim of breach of contract has a SIXyear statute of limitations which accrues from the date of breach. An executory contract is not extinguished by the death of a party, an administrator or executor as an agent acting on behalf of the estate has the right to seek performance of a contract (DiSclplo v. Sullivan, 30 A.D. 3d 660,816 N.Y.S. 2d 676 [N.Y.A.D. 3d Dept., 20061 citing to Gura v. Herman,277 A.D. 462,238 N.Y.S. 230 [N.Y.A.D. 2ndDept., ISZD]). Pursuant to CPLR §213[1], a constructive [* 3] trust claim has a six year statute of limitations which commences, from the time of the wrongful act givlng rise to a duty of restitution, and not from when the fraud Is discovered (Knobel v. Shaw, 90 A.D. 3d 493,936 N.Y.S. 2d 2 [N.Y.A.D. 1 Dept., 20111). A wrongful act occurs when the property Is acquired wrongfully from the date of acquisition, or the date the trustee wrongfully withholds the lawfully acquired property breaching the agreement with the beneficiary (Zane v. Minion, 63 A.D. 3d 1151,882 N.Y.S. 2d 266 [N.Y.A.D. 2 dDept., 20091). A cause of action for conversion, pursuant to CPLR §213[8], if stated as fraud, has year a SIX statute of iimitations. A cauie of action for converslon, pursuant to CPLR §214[3], stated based on replevin or a possessory interest, has a three year statute of limitations (Garber v. Ravitch, 186 A.D. 2d 361,688 N.Y.S. 2d 163 [N.Y.A.D. 1 Dept., 1992l). A claim for conversion pursuant to CPLR §214[3], where possession Is lnltlally lawful, does not begin to run until there Is a demand for return of the possession and a refusal to do so (in Re Rausman, 50 A.D. 3d 909,866 N.Y.S. 2d 203 [N.Y.A.D. 2 d Dept., ZOOS]). Pursuant to CPLR §213[1], cause of action for unjust enrlchment has a six year statute of llmltation and seeks relief which is equitable in nature. A claim that the defendant is seeking to keep of proflts or retain the value of property, has a six years statute of limitations (Knobei v. Shaw, 90 A.D. 3d 493, supra). Defendant under Mot. Seq. 002, seeks an Order dismissing thls action and granting summary judgment ciaimlng that there are no issues of fact and this actlon Is barred by the statute of limitations. Defendant relying on the amended complaint and the affldavit of Martha Siegel dated January 18,2011 (Mot. Seq. 002, Exhs. 1 & 2 ), clalms that the agreement relied upon by the plaintiff was signed on March 30, 1986, more than twenty flve years ago, therefore ail the asserted causes of action are time-barred. Defendant claims that the statute of iimltatlons on cause of action for breach of contract is six years and based on an October 8,2004 letter from Thomas Hoffman, Esq., the action was commenced 19 days after the statute of limltatlons expired. Plaintiff opposes summary Judgment claimlng that the statute of llmltatlons was raised in Mot. Seq. 001, as part of defendant s reply to her cross-motion for summary judgment and was denied. Plaintiff claims, the statute of llmltatlons for breach of contract and breach of a constructive trust is six years, but the statute of llmltatlons for conversion Is three years. Plaintiff claims the causes of action alleged In the complaint did not accrue untli September 23,2010, when she sought performance under the March of 1986 agreement, which was refused by the defendant. The October 8,2004 letter reflects negotiations to further clarify the terms of the March of 1986 agreement. Defendant reaffirmed March of 1986 agreement with his March 18,2005 note. Plaintiff claims that the municipal bearer bonds were retained by Herbert Slegei, he made annual bond dlstrlbutions to Lloyd Siegel starting In March of 1986, In reliance on the agreement and as valid consideration. As of September 23,2010, Lloyd Siegel breached and repudlated the agreement and Interfered with Herbert Siegel s possessory interest In the apartment. This Court finds defendant relles on the hearsay affirmation of his attorney and the affldavit of Martha Slegel submitted on a prlor motion. The Supreme Court Appellate Division Flrst Department stated In Its August 14, 2012 Decision and Order, that the record presented material issues of fact, such as the nature of the relationship between the decedent and the defendant, nelther parties is entltied to summary Judgment. Defendant has not eilminated those Issues of fact. Defendant has not.estabiished that this action Is untimely. The cornplaint alleges Lloyd Siegel repudlated the March 1986 agreement by refusing to surrender either the value of, or the capital stock on September 23,2010, when [* 4] it wa ught to be recovered by the estat D fendant reiie n hearsay ridenc 1 lncludlng the unauthenticated letter of Thomas Hoffman, Esq., and has not eliminated any issues of fact related to establishing that the March of 1986 agreement was altered, breached or repudlated, before, or as of October 8, 2004, or prior to September 23,2010. On March 18,2006, Lloyd Siegel afflrmed In writing that half of the co-operatlve apartment was owned by Herbert Siegei. Plaintiffs causes of actlon for breach of contract and constructlve trust and unjust enrichment each have a s x year statute of Ilmltations, and i are timely as alleged. The pialntifF s cause of actlon for conversion has a three year statute alleged to have began to run after September 23, 2010, and is timely. of ilmltations IS Defendant s motion papers do not speclflcally address the causes of actlon for an accounting; permanent Injunction or a declaratory Judgment. Defendant s motion for summary judgment, submltted under Motion Sequence. 002, is denled. Pursuant to CPLR Q 3130 [b], a motlon for summary judgment pursuant to CPLR Q 3212 stays disclosure until a determination of the motion, unless the Court order othennrise. The stay can be vacated by the Court if there is a determlnatlon of a legitimate need for discovery (Reiiiy v. Oakwood Heights Community Church, 269 A.D. 2d S82,704 Dept., 20001). N.Y.S. 2d 829 [N.Y.A.D. 2nd Pursuant to CPLR 93124, the Court may compel compliance upon fallure of a party to provide dlscovery. it is within the Court s discretion to determine whether the materlals sought are materiai and necessary as legitimate subJect of inquiry or are being used for purposes of harassment to ascertaln the existence of evidence (Roman Catholic Church of the Good Shepard v. Tempco Systems, 202 A.D. 2d 267,608 N.Y.S. 2d 647 [N.Y.A.D. lot Dept. 19941). Pursuant to CPLR s3126, there must be a showing of a wlllful vlolation of a prior Order for discovery or that the failure to provide dlscovery was willful, contumacious or due to bad faith. This would include predlcate failure to provlde the discovery sought Dept. (Siegman v. Rosen, 270 A.D. 2d 14,704 N.Y.S. 2d 40 [N.Y.A.D. lot 20001). The court has broad discretion In supervising dlsciosure and to grant a protective order pursuant to CPLR 53103 (148 Magnolla, LLC v. Merrimack Mut. Fire ins. Co., 62 A.D. 3d 486,878 N.Y.S. 2d 727 [N.Y.A.D. 1 Dept., 20001). The test concernlng discovery is one of usefulness and reason and as such should lead to dlsciosure of admisslble proof. Partles to an action are entitled to reasonable dlscovery of any relevant facts to the actlon (Allen v. Croweii-Collier PubLCo., 21 N.Y. 2d 403,288 N.Y.S. 2d 449,236 N.E. 2d 430 [1968]). Dlsciosure sought Is required to lead to relevant evidence, and should not be, overly broad or unnecessary and therefore palpably Improper (Perez v. Board of Educ. Of Clty of New York, 271 A.D. 2d 261,706 N.Y.S. 43 [N.Y.A.D. 1 Dept., 20001). A protective order may be applied to non-party witnesses if the discovery sought is not materiai and necessary to the case, and would result in unnecessary attention to a collateral matter (Greasy Spoon v. Jefferson Towers, 181 A.D. 2d 639,681 N.Y.S. 2d 1006 Dept., 19921and Biittner v..Berg and Dorf, 138 A.D. 2d 439,626 N.Y.S. 2d 868 [N.Y.A.D. lmt [N.Y.A.D. 2ndDept., 19881). Pursuant to CPLR §3130[1], a party is prohibited from the servlce of interrogatories upon a party served with a demand for a blll of particulars. A party may utilize either discovery device but not both (Splerer v. Bloomingdale s, 17 A.D. 3d 262,793 N.Y.S. 2d 403 [N.Y.A.D. lDt 20061). Dept., A subpoena may not be used as a discovery device or to condone a flshing expedition to determine the existence of evidence ( Law Firm of Ravi Batra v. Rabinowich, [* 5] 77 A.D. 3d 532,909 N.Y.S. 2d 706 [N.Y.A.D. 1 Dept., 20101). The standard for a motion to quash a subpoena duces tecum is whether the lnformatlon sought is utterly irrelevant to any proper inquiry (Ayubo v. Eastman Kodak Co., inc., 168 A.D. 2d 641,661 N.Y.S. 2d 944 [N.Y.A.D. lmt 19901). The burden of estabilshing whether the information aought Is Dept., irrelevant Is on the party being subpoenaed (Veiez v. Hunts Point Muitl-Sew. Ctr., Inc., 29 AD3 . :d 104,811 N.Y.S. 2d 6 [N.Y.A.D. lot 20081). Dept., Pursuant to CPLR 5 2221 [a][2], a party may seek to stay, vacate or modify an Order by motion before the Judge that signed it. Renewal Is not avaliabie to parties that seek a second chance because of failure to exercise due diligence (Chelsea Piers Management Dept., v. Forrest Electric Corporation, 281 A.D. 2d 262,722 N.Y.S. 2d 29 [N.Y.A.D. Id 20011 and Berkas v. McMiiian, 40 A.D. 3d 563,835 N.Y.S. 2d 388 [N.Y.A.D. 2 dDept. 20071). Frivolity as defined by 22 NYCRR l3O-1.d1 requires conduct which Is continued when Its lack of legal or factual bash should have been apparent to counsel or the party. The remainder of the submitted motlons whlch include, plalntlff s cross-motion submitted under Motion Seq. 002, Motion Seqs. 003,004,006,007 and 008, seek discovery, protective orders, or sanctions, related to the Preliminary Conference Order and Compliance Conference Order, dated October 6, 201 1. The Preliminary Conference was conducted on August 3,201 1, the attorneys for the parties were unwilling to cooperate in the preparation of the Order whlch required over an hour of the Court s time in negotiatlng and attempting to ascertain the extent of the discovery and provide suitable dates for its completion. Plaintiff s attorney advised the Court that discovery demands had been served on defendant as of June 6,2011, with no objection or responses provlded as of August 3,201 I Defendant s attorney advised the Court he was attempting to appeal the decision flied April 16,2011, under Motion Sequence 001, and additional time was requested. Defendant s counsel objected strenuously to an inspection of the premises scheduled to take place on October 21, 201 1. The Preliminary Conference Order dated August 3, 201I ,directed that plaintiff serve the demand for a Bill of Particulars by August 16,2011, with the defendant sewing responses by September 16,2011. Defendant s counsel dld not obJect to this part of the Order. Defendant was directed to provide responses to the remainder of plaintiffs June 0, 201 1 demands by October 21, 201I. Defendant was directed to serve a demand of a bill of particulars on the plaintiff by September 13,2011, with plaintiff providing responses by October 10, 201 I Authorizations were to be sewed by October 21, 2011. Depositions of the . parties were to be conducted on or before December 9,201 1, and non-party wltnesses to be deposed on January 16,2012, with time and location to be agreed upon by counsel. A compliance conference was scheduled for February 16,2012. On September 14, 201 1, plaintiffs counsel became aware that defendant was filing his motion for summary judgment submltted under Motion Sequence 002. The Court was contacted by plaintiff s counsel and advised that defendant s motion sought previously requested relief and that defense counsel was attempting to use the summary Judgment motion to stay Court Ordered by September 16,2011, discovery responses. Attempts to contact defendant s attorney for a conference call were unsuccessful, and conference was scheduled for October 6, 201 1, so that both parties could present their positions. [* 6] Defense counsel appeared In Court on October 6,201 1, seeklng a conference on the record before a court reporter, and lnslstlng a stay was In effect based on hls pendlng appeal and motlon for summary judgment. Plaintiff a counsel presented documents lncludlng reply papers and a brlef submltted by defendant to the Supreme Court Appellate Dlvlslon First Department, on Motion Seq. 001, to demonstrate that there was prlor mentlon of the statute of Ilmltatlons. Plalntlffs counsel clalmed that the prevlously ordered discovery was necessary to refute defense counsel s new claims that Lloyd Slegel signed documents under duress, and to proceed wlth the case. Plalntiffs counsel advlsed the Court that fallure to proceed wlth dlsccrvery would preJudlcehls cllent an older woman, and that he was belng forced to repeatedly make travel arrangements from Rochester and cancel them based on defense counsel s delay tactlcs, lncludlng frlvolous motlons. Defense counsel indicated he was contemplating withdrawing the appeal but insisted that he was golng to be successful In havlng the actlon dlsmissed on statute of llmltatlons grounds, therefore the discovery was unnecessary. The Court determlned that the stay of discovery pendlng the motlon for summary judgment should be vacated and a new discovery order Issued. Plalntlffs counsel suggested conducting depositions of his client In Rochester or defense counsel s offlce In Port Chester New York , especlally slnce there was a possible dlfflculty In obtalnlng space In New York County. Discussions resulted In an agreement between counsel that deposltlons would be spllt to avoid some of the additional travel from Rochester. The October 6,201 1, Compliance Conference Order extended the tlme for Defendant s responses to plalntlffs demands for a blll of particular to October 14,2011 and permltted defendant to serve his own demand for a blll of partlculars by October 18, 201 1. Deposltlons of the parties were extended to December 16,2011, and non-party witness were to be deposed by January 16, 2012. A compliance conference was scheduled for February 16,2012. Upon revlew of all the papers submltted, thls Court flnds, that the defendant shall not be compelled to provlde responses to plalntlffs demands for Interrogatories, lncludlng those served on June 6,201 1. Defendant provlded responses to plalntlffs demand for a blll of particulars and flrst demand for productlon of documents, however these documents state numerous objections and appear to be Incomplete. Defendant has stated a basis in Motion Sequence 003, to dlrect that depositions be conducted In New York County because of hls cllent s lnablllty to attend deposltions In Rochester. Defendant has not stated a basls to issue a protective order preventlng plalntlff from seeking psychlatrlc evaluatlon or medlcal records. Defendant has placed his physlcal and mental condltlon at Issue based on his claims that he signed documents while under mental duress and physical coerclon. Defendant has stated a basis in Motlon Sequence 004, to compel more complete responses to Interrogatories and for document productlon. Plalntlff s claims that the documents sought related to Florence and Meyer s estates are already in the defendant s excluslve possession or knowledge, are not sufflcient. Defendant has not stated a basls to obtaln the protective orders sought In Motion Sequences 000 and 007. Lloyd Slegel has put his mental and physlcal condltlon at Issue based on hls claims of duress and coerclon. Roslyn Slegel was defendant s wife at the tlme of the alleged occurrences, documentation was provlded that at one tlme she attempted to mediate an agreement between Herbert and Lloyd Slegel concerning estate assets. The documents sought by the subpeona duces tecum relates to the estates of Florence and Meyer Siegel, distribution of assets, and Lloyd and Herbert Slegel s relationship, It Is relevant and shall be provlded. Plaintiffs motlon for sanctions submltted [* 7] under Motion Sequence 008, shall be denled, there have been disputed discovery requests by all parties to this action and defendant s actions will not be sanctloned. Accordingly, It is ORDERED, that defendant s motion submitted under Motlon Sequence 002, pursuant to CPLR 93212 [a][b] and CPLR 53214 [b], seeklng summary judgment and dismissing this action as barred by the applicable statute of limitations, Is denled and It further ORDERED, that plalntiff s cross-motion to compel defendant to comply with previous discovery Orders including responses to the demand for a Bill of Partlculars, alternatively, to strike the defendant s answer and for sanctions, is granted to the extent that, defendant shall to provlde supplemental responses to plalntlffs demand for a Bill of Particulars, document demand and omnlbus demands on or before November 2,2012, failure to do so shall result in defendant s answer belng deemed strlcken, and it is further, ORDERED, that the Orders of this Court dated August 3,201 1 and October 5,201 I, are modlfled and that portion of the Ordem directing defendant to provide responses to plalntlffs lnterrogatorles is vacated, pursuant to CPLR §3130[11, plalntlff Is prohibited from the service of Interrogatories upon the defendant, having also served a demand for a bill of particulars, and it further, ORDERED, that defendant s motion submltted under Motlon Sequence 003, seeking an Order granting renewal and modification of the Compliance Conference Order dated October 6,201 1 and a protective order; dlrectlng plalntlffs depositlon be conducted In New York, New York and not Rochester, New York, staying all party and non-party depositions pending a declslon on Motion Sequence 002 and vacating plalntlffs notice seeking to have the defendant submit to a psychlatrlc examination, Is granted to the extent that the Order of this Court dated October 6,201 I, Is modifled to state deposltions of all parties shall be conducted In New York County, on or before January 18,2013, at 10:00a.m., failure to appear at deposition shall result In that party belng precluded from testifying at the time of trial, and it Is further, ORDERED, that the remainder of Motion Sequence 003 is denled, and it is further, ORDERED, that Defendant s motion submitted under Motion Sequence 004, seeking to compel plaintlff to provide adequate responses, answers and document production and staying plaintiff 8 deposition pending compliance with interrogatories and document requests, Is granted to the extent that plaintiff shall provide supplemental responses to defendant s demands for Interrogatories and document requests, on or before November 2,2012, failure to do so shall result In plaintiffs Amended Summons and Complaint belng deemed strlcken and this case dlsmlssed, and It Is further, ORDERED, that the remainder of Motlon Sequence 004 Is denied, and it Is further, ORDERED, that defendant s motion submitted under Motlon Sequence 006, seeking a protective order striking the plaintiffs Notice to Admit on the grounds that It seeks confldentlal and prlvileged informatlon; is an unavailable discovery device prohlblted under the circumstances of this case, is denled, and it Is further, ORDERED, that defendant s motion submitted under Motion Sequence 007, seeking a protective order, on behalf of non-party Roslyn Siegel, staylng her deposltion and [* 8] quashlng the subpeona duces tecum as overbroad and oppressive, is denied, and it Is further, ORDERED, that the non-party deposition of Rosiyn Slegel is to be conducted on February 22,2013 at 1O:OOam in New York County, and the document production 8ought by subpoena duces tecum shall be provlded to plaintlff by January 18,2013, failure of Rosiyn Slegel to comply shall result In a flnding that she Is In Contempt of Court; and It is further, ORDERED, that the remaining non-party deposition8 shall be conducted In New York County, to be completed on or before, February 28,2013, and it is further, ORDERED, that plalntlff s motion submitted under Motlon Sequence 008, seeklng costs, sanctions and attorney fees, for frivolous motlon practice and for the defendant's faliure to comply with the Prellmlnary Conference Order and the Compllance Conference Order, and seeking to have the defendant's answer stricken, is denied, and it is further, ORDERED that the parties shall appear for a Status Conference, in IAS Part 13, room 307 at 80 Centre Street, New York, New York at 93Oa.m. on March 27,2013. ENTER: MANUEL J. hENDEZ, Dated: September 7, 2012 Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: DO NOT POST 0 REFERENCE . . . FllED SEP 13 MI2 CLERK'S OFFICE NEW W R K

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