Preview
FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019
NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
13 HARRISON STREET CONDOMINIUM and
13 HARRISON LLC,
Index No. 651188/2019
Plaintiffs,
-against- AFFIRMATION IN OPPOSITION
TO MOTION TO LIFT
MICHAEL BLEICH and ALEXIS BLEICH, AUTOMATIC STAY OF
DISCOVERY PURSUANT TO
Defendants/Third-Party Plaintiffs, CPLR RULE 3214(b)
-against- Motion Sequence No. 005
ARNULF DAMERAU, ATISH BAGCHI, and
JOHN DOES 1-10,
Third-Party Defendants.
CHARLES G. BERRY, an attorney duly admitted to practice and in good standing in the
State of New York, hereby affirms under penalty of perjury pursuant to CPLR Rule 2106:
1. I am a member of the firm of Carter Ledyard & Milburn, LLP, attorneys for
plaintiffs, 13 Harrison Street Condominium (the “Condominium”) and 13 Harrison LLC (the
“Unit 2 Owner”) (together, “Plaintiffs”). I submit this affirmation in opposition to the motion of
Defendants Michael and Alexis Bleich (“Defendants”) for an order lifting the automatic stay of
discovery pursuant to CPLR Rule 3214(b) pending determination of Plaintiffs’ companion
dispositive motions.
2. Those dispositive motions, returnable at the same time as Defendants’ motion to
lift the stay of discovery, are Plaintiffs’ motion for (a) summary judgment on all four of the
causes of action in Plaintiffs’ Amended Complaint (Motion Seq. No. 3) and (b) dismissal of
Defendants’ counterclaims and virtually identical third-party complaint (Motion Seq. No. 4).
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Since this motion necessarily relates to those dispositive motions, Plaintiffs incorporate by
reference their papers filed on those related motions.
The Court’s Rejection of Defendants’ Prior Order to Show Cause
Seeking To Lift the Stay of Discovery
3. This is the second time Defendants have sought to lift the automatic stay of
discovery resulting from Plaintiffs’ dispositive motions. On the afternoon of Wednesday,
November 27, 2019, just before the Thanksgiving holiday weekend, Defendants presented a
proposed order to show cause for the same relief, along with a 17-page affirmation of their
attorney Robert A. Giacovas dated November 27, 2019 (NYSCEF Doc. No. 183) (“Giacovas
11/27/19 Aff.”) with extensive exhibits (NYSCEF Docs. Nos. 184-211) and a memorandum of
law of the same date (NYSCEF Doc. No. 212) (“Def. 11/27/19 Mem.”).
4. In opposition to Defendants’ proposed order to show cause, Plaintiffs filed an
affirmation of Charles G. Berry dated December 2, 2019 (on the morning after the Thanksgiving
holiday weekend) (NYSCEF Doc. No. 213) (“Berry 12/2/19 Aff.”), a copy of which is attached
hereto as Exhibit (“Ex.”) A.
5. That affirmation explained that Defendants’ application by order to show cause
was procedurally and substantively defective. It pointed out that Defendants had failed to sustain
their burden under CPLR Rule 2214(d) of showing that this was a “proper case” for emergency
relief. It also explained that no discovery is necessary or appropriate because (a) Plaintiffs’
motion for summary judgment is based on indisputable facts, including the By-Laws of the
Condominium, and (b) the motion to dismiss Defendants’ claims is based on the legal inadequacy
of those claims determined from the face of the pleadings.
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6. On December 4, 2019 the Court rejected Defendants’ application for an order to
show cause and filed a copy marked “Decline to Sign” (NYSCEF Doc. No. 214) (copy attached
hereto as Ex. B). 1
Significant Admissions in Defendants’ OSC Papers Omitted in the Current Papers
7. Defendants’ current application to lift the stay of discovery is brought by ordinary
motion instead of order to show cause. The supporting papers consist of an affidavit of Robert A.
Giacovas dated December 23, 2019 (NYSCEF Doc. No. 250) (“Giacovas 12/23/19 Aff.”) with
most of the same exhibits that were attached to his earlier affidavit, and a memorandum of law
also dated December 23, 2019 (NYSCEF Doc. No. 251) (“Def. 12/23/19 Lift Stay Mem.”).
8. While at first glance the new affidavit and memorandum of law appear to be
virtually verbatim copies of the prior filings, there are some significant passages in the earlier
papers omitted in the current filings. Those passages contain important admissions as to the merit
of Plaintiffs’ motion for summary judgment with respect to the first three of the causes of action
in the Amended Complaint. Those admissions that Defendants made in their prior papers but
sought to exclude from the record on this revived motion underscore that discovery is not needed
with respect to those causes of action. 2
9. In particular, the Giacovas 11/27/19 Affidavit and Defendants’ 11/27/19 OSC
Memo of Law explained that Plaintiffs held a duly noticed meeting of the Condominium on
1 Notably, Defendants’ 12/23/19 Lift Stay Memorandum of Law makes no mention at all of the Court’s
rejection of their requested order to show cause, and the Giacovas 12/23/19 Affidavit tries to ignore it,
omitting it from the “Procedural History” section and burying a single passing mention to a subordinate
clause (at ¶ 3).
2
The particular passages from the earlier papers omitted in the current papers are most of the text from the
bottom of page 5 through the middle of page 7 of the Def. 11/27/19 OSC Mem. (NYSCEF Doc. No. 212)
and ¶ 52 of the Giacovas 11/27/19 Aff. (NYSCEF Doc. No. 183). Defendants have also dropped what had
been Exs. 26-28 to that earlier affidavit, relating to the October 16, 2019 meeting of unit owners (NYSCEF
Doc. Nos. 209-211): Plaintiffs have, however, submitted copies of those documents in support of their
motion for summary judgement.
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October 16, 2019 at which Plaintiffs’ designated managers and officers were elected and
appointed and a resolution adopted clarifying that Defendants’ October 2018 attempt to waive the
Condominium’s right of first refusal prospectively was invalid and that right continued in force
and effect. See Giacovas 11/27/19 Aff. ¶ 52 and fn. 4 (“Given that . . . the owner of Unit 2 has the
clear majority and was able to elect the board of managers at [its] choosing, we acknowledged as
much in a letter to [Plaintiffs’] counsel on October 15, 2019.”); Def. 11/27/19 OSC Memo of Law
at 6 (because Plaintiffs’ designees “were, in fact, elected as managers of the board” at the October
16, 2019 meeting and they “passed resolutions that rendered void the prior waiver of the right of
first refusal . . . Plaintiffs’ first three causes of action . . . are moot.”)
10. Defendants’ admissions in their previous application to lift the stay of discovery
are binding here. They have conceded that the representatives selected by the majority Unit 2
Owner are the duly authorized managers and officers of the Condominium and that the
Condominium is entitled to exercise its right of first refusal in accordance with the By-Laws.
The Lack of Need for Discovery on Plaintiffs’ First Three Causes of Action
11. Plaintiffs seek summary judgment, moreover, not just to establish that their
designees were properly appointed and right of first refusal established as of October 16, 2019 but
also that those appointments were valid when made in January 2019 and that the right of first
refusal was effective at all times and Defendants’ effort to waive it prospectively was unavailing.
12. The determinations, sought in the first three causes of action of the Amended
Complaint, turn exclusively on the provisions of the By-Laws and the rights and powers
established there. The 75% majority Unit 2 Owner has the right to call a special meeting and to
elect managers and appoint officers. And the right of first refusal can only be exercised upon
presentation to the board of managers of a bona fide “Outside Offer.” That is established by the
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By-Laws, the terms of which are not disputed, and does not require discovery of any kind. In
fact, Defendants’ counsel has finally conceded these points.
The Lack of Need for Discovery on Plaintiffs’ Fourth Cause of Action
13. The same is true of Plaintiffs’ fourth cause of action, which seeks a determination
that Defendants’ use of the cellar floor of their unit is unlawful, violates the Certificate of
Occupancy (“C of O”) and the Condominium’s Declaration (the “Declaration”), and must be
remedied.
14. As set forth more fully in Plaintiffs’ papers in support of its motion for summary
judgment, the fourth cause of action is based on undeniable evidence that Defendants have been
using the cellar portion of their unit for illegal “dwelling”, namely, bedrooms and bathrooms that
are not permitted under either the C of O or the Declaration. Defendants do not deny, nor could
they, that their children have been sleeping in the cellar space and that real estate listings for their
unit showed rooms in the cellar as “bedrooms” or “sleeping areas.”
15. Among other things, that is made clear from photographs and real estate listings of
Defendants’ Unit 1, which were identified and authenticated at the deposition of their former real
estate broker, David Kornmeier, taken September 5, 2019, the transcript of which is submitted in
support of Plaintiffs’ summary judgement motion. As also set forth in Plaintiffs’ summary
judgment papers, there can be no dispute as to the illegality of Plaintiffs’ use of the cellar portion
of Unit 1. Again, no discovery is needed to establish these facts.
The Lack of Need for Discovery on Defendants’ Claims
16. By the same token, the three purported causes of action in Defendants’
counterclaims (and the virtually identical claims in their cross-complaint) require no discovery
because all those claims fail as a matter of law. The overlong Giacovas 12/23/19 Affidavit wastes
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much ink on shrill accusations that Mr. Damerau – who is not even a party – has a nefarious
scheme to scare off prospective buyers and force Defendants to sell their unit to him on the cheap.
Even if there were any basis to such unfounded assertions as that Mr. Damerau’s “goal is to buy
and de-convert the Condominium in order to develop it (and others) for a commercial purpose”
(id. ¶ 37), those claims cannot salvage the legally inadequate claims of tortious interference and
breach of fiduciary duty, as explained in Plaintiffs’ papers on their motion to dismiss those
claims.
Plaintiffs’ Dispositive Motions Were Brought Promptly after the
October 16, 2019 Meeting of Unit Owners, Not To Interpose Any Delay.
17. The Giacovas 12/23/19 Affidavit is mistaken in asserting that the timing of
Plaintiffs’ filing of its dispositive motions is evidence of an ulterior purpose to delay proceedings
and avoid discovery.
18. In fact, as was made plain at the November 19, 2019 conference before Principal
Law Clerk Nina Cangiano, the dispositive motions were filed as soon as possible after the
October 16, 2019 meeting of unit owners which was the occasion for Defendants’ belated and
begrudging admission that Plaintiffs’ designees were duly authorized managers and officers of the
Condominium and that the right of first refusal was intact and the attempted prospective waiver
thereof nullified.
19. Plaintiffs would have moved earlier for summary adjudication, but we felt that the
actions taken at the October 16, 2019 meeting would eliminate the slightest doubt as to Plaintiffs’
entitlement to the relief sought in at least the first three of the causes of action in their Amended
Complaint. See ¶¶ 9-10, above. Since I as lead counsel for Plaintiffs was out of the country on a
long-planned trip for two weeks shortly after the October 16 meeting, we worked to pull together
the two dispositive motions as soon as possible after my return on November 8.
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20. The timing of the dispositive motions was made plain in a letter to the Court from
Charles G. Berry dated November 18, 2019 (Ex. C), in connection with the scheduled conference
with Ms. Cangiano the next day. That letter noted the timeliness of the dispositive motions
“[p]articularly in light of the recent re-election of managers of the Condominium and adoption of
the resolution confirming the invalidity of Defendants’ attempts to waive the right of first refusal
in the absence of a bona fide outside offer.” Id. at 4. The letter also addressed the ineffectiveness
of Defendants’ efforts to serve Mr. Damerau with their third-party complaint and EuroAtlantic
with a subpoena, as well as the harassing nature of efforts to get documents and testimony from
Plaintiff Unit 2 Owner’s architects – all matters touched upon in the rambling Giacovas 12/23/19
Affidavit. 3
It Is Defendants Who Have Caused Delay and Abused the Discovery Process.
21. Defendants’ accusations of “bad faith attempts to halt discovery” (Giacovas
12/23/19 Aff. p. 11) simply mischaracterize the proceedings. Defendants fail to acknowledge that
Plaintiffs long ago produced documents and indeed proposed making a representative of Plaintiff
Unit 2 Owner available for deposition by Defendants. On April 5, 2019 Defendants noticed the
deposition of Plaintiff 13 Harrison LLC (i.e., Unit 2 Owner) for June 21, 2019. On June 12, 2019
counsel for Plaintiffs Leonardo Trivigno wrote Defendants’ counsel in an email: “We would
appreciate your advising as to dates in July when you can proceed with the deposition you noticed
of 13 Harrison, which will be by Mr. Braverman, to be followed at the same time and place by the
depositions of defendants Alexis and Michael Bleich.” (Ex. D). Defendants’ counsel responded
that “due to conflicts with other matters in July, we will need to schedule depositions in the first
two weeks of August” (id.) but never followed up to do so. The harassing nature of Defendants’
3
The issues of Defendants’ failure to serve Mr. Damerau and EuroAtlantic are addressed in companion
motions and should be rendered moot in any event by granting of Plaintiffs’ dispositive motions.
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efforts to obtain irrelevant discovery from non-parties is underscored by their failure to take the
deposition of the representative of Plaintiffs who was made available over six months ago.
The Dispositive Motions Promote Judicial Economy.
22. While Defendants argue that lifting the stay of discovery would promote judicial
economy, just the opposite is true. Since no discovery is needed to establish Plaintiffs’ claims
and defeat Defendants’ claims, the most expeditious and cost-effective way to proceed is to
determine the dispositive motions. Indeed, that is the very reason for the salutary rule of CPLR
3214(b), which is presumptively applicable in this Part. Staying discovery while the dispositive
motions are decided will put an end to the multiple side-shows Defendants seek to stir up. The
parties’ rights under the governing By-Laws can be determined with finality without discovery,
and the Court can avoid having to deal with irrelevant slurs and insinuations and wasteful motion
practice.
23. For the foregoing reasons, we respectfully request that Defendants’ motion to lift
the automatic stay imposed by CPLR 3214(b) be denied in its entirely.
Dated: New York, New York
January 10, 2020
/s/ Charles G. Berry
Charles G. Berry
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FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 13 HARRISON STREET CONDOMINIUM and 13 HARRISON LLC, Index No. 651188/2019 Plaintiffs, -against- AFFIRMATION IN OPPOSITION TO MOTION TO LIFT MICHAEL BLEICH and ALEXIS BLEICH, AUTOMATIC STAY OF DISCOVERY PURSUANT TO Defendants/Third-Party Plaintiffs, CPLR RULE 3214(b) -against- Motion Sequence No. 005 ARNULF DAMERAU, ATISH BAGCHI, and JOHN DOES 1-10, Third-Party Defendants. CHARLES G. BERRY, an attorney duly admitted to practice and in good standing in the State of New York, hereby affirms under penalty of perjury pursuant to CPLR Rule 2106: 1. I am a member of the firm of Carter Ledyard & Milburn, LLP, attorneys for plaintiffs, 13 Harrison Street Condominium (the “Condominium”) and 13 Harrison LLC (the “Unit 2 Owner”) (together, “Plaintiffs”). I submit this affirmation in opposition to the motion of Defendants Michael and Alexis Bleich (“Defendants”) for an order lifting the automatic stay of discovery pursuant to CPLR Rule 3214(b) pending determination of Plaintiffs’ companion dispositive motions. 2. Those dispositive motions, returnable at the same time as Defendants’ motion to lift the stay of discovery, are Plaintiffs’ motion for (a) summary judgment on all four of the causes of action in Plaintiffs’ Amended Complaint (Motion Seq. No. 3) and (b) dismissal of Defendants’ counterclaims and virtually identical third-party complaint (Motion Seq. No. 4). 9104696.3 1 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 Since this motion necessarily relates to those dispositive motions, Plaintiffs incorporate by reference their papers filed on those related motions. The Court’s Rejection of Defendants’ Prior Order to Show Cause Seeking To Lift the Stay of Discovery 3. This is the second time Defendants have sought to lift the automatic stay of discovery resulting from Plaintiffs’ dispositive motions. On the afternoon of Wednesday, November 27, 2019, just before the Thanksgiving holiday weekend, Defendants presented a proposed order to show cause for the same relief, along with a 17-page affirmation of their attorney Robert A. Giacovas dated November 27, 2019 (NYSCEF Doc. No. 183) (“Giacovas 11/27/19 Aff.”) with extensive exhibits (NYSCEF Docs. Nos. 184-211) and a memorandum of law of the same date (NYSCEF Doc. No. 212) (“Def. 11/27/19 Mem.”). 4. In opposition to Defendants’ proposed order to show cause, Plaintiffs filed an affirmation of Charles G. Berry dated December 2, 2019 (on the morning after the Thanksgiving holiday weekend) (NYSCEF Doc. No. 213) (“Berry 12/2/19 Aff.”), a copy of which is attached hereto as Exhibit (“Ex.”) A. 5. That affirmation explained that Defendants’ application by order to show cause was procedurally and substantively defective. It pointed out that Defendants had failed to sustain their burden under CPLR Rule 2214(d) of showing that this was a “proper case” for emergency relief. It also explained that no discovery is necessary or appropriate because (a) Plaintiffs’ motion for summary judgment is based on indisputable facts, including the By-Laws of the Condominium, and (b) the motion to dismiss Defendants’ claims is based on the legal inadequacy of those claims determined from the face of the pleadings. 2 9104696.3 2 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 6. On December 4, 2019 the Court rejected Defendants’ application for an order to show cause and filed a copy marked “Decline to Sign” (NYSCEF Doc. No. 214) (copy attached hereto as Ex. B). 1 Significant Admissions in Defendants’ OSC Papers Omitted in the Current Papers 7. Defendants’ current application to lift the stay of discovery is brought by ordinary motion instead of order to show cause. The supporting papers consist of an affidavit of Robert A. Giacovas dated December 23, 2019 (NYSCEF Doc. No. 250) (“Giacovas 12/23/19 Aff.”) with most of the same exhibits that were attached to his earlier affidavit, and a memorandum of law also dated December 23, 2019 (NYSCEF Doc. No. 251) (“Def. 12/23/19 Lift Stay Mem.”). 8. While at first glance the new affidavit and memorandum of law appear to be virtually verbatim copies of the prior filings, there are some significant passages in the earlier papers omitted in the current filings. Those passages contain important admissions as to the merit of Plaintiffs’ motion for summary judgment with respect to the first three of the causes of action in the Amended Complaint. Those admissions that Defendants made in their prior papers but sought to exclude from the record on this revived motion underscore that discovery is not needed with respect to those causes of action. 2 9. In particular, the Giacovas 11/27/19 Affidavit and Defendants’ 11/27/19 OSC Memo of Law explained that Plaintiffs held a duly noticed meeting of the Condominium on 1 Notably, Defendants’ 12/23/19 Lift Stay Memorandum of Law makes no mention at all of the Court’s rejection of their requested order to show cause, and the Giacovas 12/23/19 Affidavit tries to ignore it, omitting it from the “Procedural History” section and burying a single passing mention to a subordinate clause (at ¶ 3). 2 The particular passages from the earlier papers omitted in the current papers are most of the text from the bottom of page 5 through the middle of page 7 of the Def. 11/27/19 OSC Mem. (NYSCEF Doc. No. 212) and ¶ 52 of the Giacovas 11/27/19 Aff. (NYSCEF Doc. No. 183). Defendants have also dropped what had been Exs. 26-28 to that earlier affidavit, relating to the October 16, 2019 meeting of unit owners (NYSCEF Doc. Nos. 209-211): Plaintiffs have, however, submitted copies of those documents in support of their motion for summary judgement. 3 9104696.3 3 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 October 16, 2019 at which Plaintiffs’ designated managers and officers were elected and appointed and a resolution adopted clarifying that Defendants’ October 2018 attempt to waive the Condominium’s right of first refusal prospectively was invalid and that right continued in force and effect. See Giacovas 11/27/19 Aff. ¶ 52 and fn. 4 (“Given that . . . the owner of Unit 2 has the clear majority and was able to elect the board of managers at [its] choosing, we acknowledged as much in a letter to [Plaintiffs’] counsel on October 15, 2019.”); Def. 11/27/19 OSC Memo of Law at 6 (because Plaintiffs’ designees “were, in fact, elected as managers of the board” at the October 16, 2019 meeting and they “passed resolutions that rendered void the prior waiver of the right of first refusal . . . Plaintiffs’ first three causes of action . . . are moot.”) 10. Defendants’ admissions in their previous application to lift the stay of discovery are binding here. They have conceded that the representatives selected by the majority Unit 2 Owner are the duly authorized managers and officers of the Condominium and that the Condominium is entitled to exercise its right of first refusal in accordance with the By-Laws. The Lack of Need for Discovery on Plaintiffs’ First Three Causes of Action 11. Plaintiffs seek summary judgment, moreover, not just to establish that their designees were properly appointed and right of first refusal established as of October 16, 2019 but also that those appointments were valid when made in January 2019 and that the right of first refusal was effective at all times and Defendants’ effort to waive it prospectively was unavailing. 12. The determinations, sought in the first three causes of action of the Amended Complaint, turn exclusively on the provisions of the By-Laws and the rights and powers established there. The 75% majority Unit 2 Owner has the right to call a special meeting and to elect managers and appoint officers. And the right of first refusal can only be exercised upon presentation to the board of managers of a bona fide “Outside Offer.” That is established by the 4 9104696.3 4 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 By-Laws, the terms of which are not disputed, and does not require discovery of any kind. In fact, Defendants’ counsel has finally conceded these points. The Lack of Need for Discovery on Plaintiffs’ Fourth Cause of Action 13. The same is true of Plaintiffs’ fourth cause of action, which seeks a determination that Defendants’ use of the cellar floor of their unit is unlawful, violates the Certificate of Occupancy (“C of O”) and the Condominium’s Declaration (the “Declaration”), and must be remedied. 14. As set forth more fully in Plaintiffs’ papers in support of its motion for summary judgment, the fourth cause of action is based on undeniable evidence that Defendants have been using the cellar portion of their unit for illegal “dwelling”, namely, bedrooms and bathrooms that are not permitted under either the C of O or the Declaration. Defendants do not deny, nor could they, that their children have been sleeping in the cellar space and that real estate listings for their unit showed rooms in the cellar as “bedrooms” or “sleeping areas.” 15. Among other things, that is made clear from photographs and real estate listings of Defendants’ Unit 1, which were identified and authenticated at the deposition of their former real estate broker, David Kornmeier, taken September 5, 2019, the transcript of which is submitted in support of Plaintiffs’ summary judgement motion. As also set forth in Plaintiffs’ summary judgment papers, there can be no dispute as to the illegality of Plaintiffs’ use of the cellar portion of Unit 1. Again, no discovery is needed to establish these facts. The Lack of Need for Discovery on Defendants’ Claims 16. By the same token, the three purported causes of action in Defendants’ counterclaims (and the virtually identical claims in their cross-complaint) require no discovery because all those claims fail as a matter of law. The overlong Giacovas 12/23/19 Affidavit wastes 5 9104696.3 5 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 much ink on shrill accusations that Mr. Damerau – who is not even a party – has a nefarious scheme to scare off prospective buyers and force Defendants to sell their unit to him on the cheap. Even if there were any basis to such unfounded assertions as that Mr. Damerau’s “goal is to buy and de-convert the Condominium in order to develop it (and others) for a commercial purpose” (id. ¶ 37), those claims cannot salvage the legally inadequate claims of tortious interference and breach of fiduciary duty, as explained in Plaintiffs’ papers on their motion to dismiss those claims. Plaintiffs’ Dispositive Motions Were Brought Promptly after the October 16, 2019 Meeting of Unit Owners, Not To Interpose Any Delay. 17. The Giacovas 12/23/19 Affidavit is mistaken in asserting that the timing of Plaintiffs’ filing of its dispositive motions is evidence of an ulterior purpose to delay proceedings and avoid discovery. 18. In fact, as was made plain at the November 19, 2019 conference before Principal Law Clerk Nina Cangiano, the dispositive motions were filed as soon as possible after the October 16, 2019 meeting of unit owners which was the occasion for Defendants’ belated and begrudging admission that Plaintiffs’ designees were duly authorized managers and officers of the Condominium and that the right of first refusal was intact and the attempted prospective waiver thereof nullified. 19. Plaintiffs would have moved earlier for summary adjudication, but we felt that the actions taken at the October 16, 2019 meeting would eliminate the slightest doubt as to Plaintiffs’ entitlement to the relief sought in at least the first three of the causes of action in their Amended Complaint. See ¶¶ 9-10, above. Since I as lead counsel for Plaintiffs was out of the country on a long-planned trip for two weeks shortly after the October 16 meeting, we worked to pull together the two dispositive motions as soon as possible after my return on November 8. 6 9104696.3 6 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 20. The timing of the dispositive motions was made plain in a letter to the Court from Charles G. Berry dated November 18, 2019 (Ex. C), in connection with the scheduled conference with Ms. Cangiano the next day. That letter noted the timeliness of the dispositive motions “[p]articularly in light of the recent re-election of managers of the Condominium and adoption of the resolution confirming the invalidity of Defendants’ attempts to waive the right of first refusal in the absence of a bona fide outside offer.” Id. at 4. The letter also addressed the ineffectiveness of Defendants’ efforts to serve Mr. Damerau with their third-party complaint and EuroAtlantic with a subpoena, as well as the harassing nature of efforts to get documents and testimony from Plaintiff Unit 2 Owner’s architects – all matters touched upon in the rambling Giacovas 12/23/19 Affidavit. 3 It Is Defendants Who Have Caused Delay and Abused the Discovery Process. 21. Defendants’ accusations of “bad faith attempts to halt discovery” (Giacovas 12/23/19 Aff. p. 11) simply mischaracterize the proceedings. Defendants fail to acknowledge that Plaintiffs long ago produced documents and indeed proposed making a representative of Plaintiff Unit 2 Owner available for deposition by Defendants. On April 5, 2019 Defendants noticed the deposition of Plaintiff 13 Harrison LLC (i.e., Unit 2 Owner) for June 21, 2019. On June 12, 2019 counsel for Plaintiffs Leonardo Trivigno wrote Defendants’ counsel in an email: “We would appreciate your advising as to dates in July when you can proceed with the deposition you noticed of 13 Harrison, which will be by Mr. Braverman, to be followed at the same time and place by the depositions of defendants Alexis and Michael Bleich.” (Ex. D). Defendants’ counsel responded that “due to conflicts with other matters in July, we will need to schedule depositions in the first two weeks of August” (id.) but never followed up to do so. The harassing nature of Defendants’ 3 The issues of Defendants’ failure to serve Mr. Damerau and EuroAtlantic are addressed in companion motions and should be rendered moot in any event by granting of Plaintiffs’ dispositive motions. 7 9104696.3 7 of 8 FILED: NEW YORK COUNTY CLERK 01/10/2020 04:45 PM INDEX NO. 651188/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/10/2020 efforts to obtain irrelevant discovery from non-parties is underscored by their failure to take the deposition of the representative of Plaintiffs who was made available over six months ago. The Dispositive Motions Promote Judicial Economy. 22. While Defendants argue that lifting the stay of discovery would promote judicial economy, just the opposite is true. Since no discovery is needed to establish Plaintiffs’ claims and defeat Defendants’ claims, the most expeditious and cost-effective way to proceed is to determine the dispositive motions. Indeed, that is the very reason for the salutary rule of CPLR 3214(b), which is presumptively applicable in this Part. Staying discovery while the dispositive motions are decided will put an end to the multiple side-shows Defendants seek to stir up. The parties’ rights under the governing By-Laws can be determined with finality without discovery, and the Court can avoid having to deal with irrelevant slurs and insinuations and wasteful motion practice. 23. For the foregoing reasons, we respectfully request that Defendants’ motion to lift the automatic stay imposed by CPLR 3214(b) be denied in its entirely. Dated: New York, New York January 10, 2020 /s/ Charles G. Berry Charles G. Berry 8 9104696.3 8 of 8