Please keep this notice JERMAIN BENNETT al et Assigned 809001/2021E v. M&V Judge: FUNERAL None MANAGEMENT Recorded CORP et al Documents Received on 09/01/2021 10:21 AM # Doc 9 Document ANSWER Type WITH ...

809001/2021E RECEIVED NYSCEF: 03/31/2022 NYSCEF - Bronx Confirmation County Notice Supreme Court JERMAIN BENNETT et al Assigned 809001/2021E v. M&V FUNERAL None judge: MANAGEMENT Recorded CORP et al ...

The Special Referee reasonably concluded that the additional depositions sought by Mr. Harounian are not relevant to any claims or defenses remaining in this case.

As the Special Referee noted, the additional depositions concern subject matter for which no affirmative defense remains and on which discovery was previously denied.

At the same hearing, the Court stated that a prior discovery dispute, concerning documents related to United Hay’s tax treatment

Now, by seeking to depose United Hay’s tax counsel, accountant, and litigation counsel in an effort to further probe the company’s tax documents, Mr. Harounian is re-litigating the same unsuccessful estoppel argument (see NYSCEF 398 at 2 [“Jacob asserts that ... United Hay’s decision to treat those moneys as a distribution to Jacob bars each of the causes of action”]).1 As such, the discovery sought by Mr. Harounian is immaterial, and the Special Referee’s decisions are confirmed.

Tellingly, Mr. Harounian raised the “mistake” argument as part of his opposition to United Hay’s motion to dismiss the estoppel defense (see NYSCEF 365 at 5 [arguing “the estoppel defense cannot be dismissed” because, among other things, discovery “has raised significant questions about United Hay's claimed mistake with respect to the multiple changes to its 2014 tax returns and Jacob's 2014 K-1s”]).

Index No.: 657310/2017 Commercial Division (Hon.

Joel M. Cohen) PLEASE TAKE NOTICEthat annexedhereto is a true and correct copy of the Order of the Court dated May3, 2022, and entered andfiled in the office of the New York County Clerk on May4, 2022.

dismissed Mr. Harounian’s “estoppel” that “ ” (NYSCEF 397 at 37

’ ”] stated that a prior discovery dispute, concerning documents related to United Hay’s – of the relevant funds, was moot because “ ” ( to depose United Hay’s tax counsel, accountant, and litigation counse probe the company’s tax NYSCEF 398 at 2 [“ ’ ”]).

The “mistake” refers to United Hay’s allegedly inconsistent – “mistake” that ellingly, Mr. Harounian raised the “mistake” argument as part of his opposition to United Hay’s motion to dismiss NYSCEF 365 at 5 [arguing “the estoppel defense cannot be dismissed” because, among other things, discovery “has raised ”]).

None of the other parties have exchanged documents because we are having a dispute over the language in a confidentiality order, which I'm happy to get into right now.

None of that is going to apply to the fraud claim which was just for pure speculation about a different operating agreement existing.

... I guess to some extent I'm curious whether you are comfortable, let's assume, I went your way, that your client would never use forensic accounting to show that it didn't receive the money? In other words, you are suggesting that none ...

None of that can detract or allude the fact that Jacob admits it's not a distribution.

With respect to the discovery that Jacob is seeking, none of that relates to whether he is estopped. think much of 7 8 9 10 11 12 Candidly, I don't that a record was provided to undermine the tax treatment by the company largely through ...

All of this should have been given to us almost a year ago and none of it was.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 381, 382, 383, 384, 385, 386, 387, 388, 390 were read on this motion to

ORDERED that Plaintiff’s motion to stay certain discovery pending resolution of Plaintiff’s motion to dismiss Defendant’s affirmative defenses (Mot.

No. 006) is DENIED AS MOOT in light of the Court’s Decision and Order, dated February 1, 2022 (NYSCEF 395), resolving that underlying motion.

This constitutes the Decision and Order of the Court.

657310/2017 UNITED HAY, LLC vs. HAROUNIAN, JACOB Motion No. 007 Page 1 of 1

The following were read on this motion (NYSEF and CASE MANAGEMENT Seq 1) noticed and submitted on October 29, 2021.

“On a motion to dismiss based upon documentary evidence, dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” Klein v. Gutman, 12 AD3d 417, 418 [2nd Dept., 2004]; CPLR 3211[a][1]; see also Saxony Ice Co., Div.

Here, defendant Creighton has come forward with probative evidence demonstrating his entitlement to judgment by submitting his sworn affidavit stating that his vehicle was not involved in a collision with plaintiffs or co-defendants herein.

The only document linking defendant, Creighton’s vehicle to the subject accident is the police report which is inadmissible hearsay, see Narvaez v. NYRAC, 290 AD2d 400 (1st Dept 2002); cf.

The plaintiffs and co-defendants have failed to raise an issue of fact, thus, defendant Creighton’s motion to dismiss the complaint and all cross-claims against him is granted without opposition.

PLEASE TAKE NOTICE that the within is a true copy of an Order by the Honorable Bianka Perez, J.S.C., of the within named Court and duly entered in the Office of the Clerk on February 24, 2022.

hereby certify that, to the best of my knowledge, information and belief, the presentation of DECISION & ORDER WITH NOTICE OF ENTRY and the contentions therein are not frivolous as defined in Subsection (c) of Section 13-1.1 of the Ruled of the Chief Administrator

LEWIS JOHS AVALLONE AVILES LLP Attorneys for Defendants M&V Funeral Management Corp. and Christopher A. Boyke 1377 Motor Parkway, Sutie 400 Islandia, New York 11749

Here, defendant Creighton has come forward with probative evidence demonstrating his entitlement to judgment by submitting his sworn affidavit stating that his vehicle was not involved in a collision with plaintiffs or co-defendants herein.

The only document linking defendant, Creighton’s vehicle to the subject accident is the police report which is inadmissible hearsay, see Narvaez v. NYRAC, 290 AD2d 400 (1st Dept 2002); cf.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368 were read on this motion to

Upon the foregoing documents, and for the reasons stated on the record following oral argument on February 1, 2022, it is ORDERED that Plaintiff’s motion to dismiss Defendant’s affirmative defenses is denied as to the first affirmative defense (failure to state a claim) and is otherwise granted; and it is further ORDERED that Plaintiff upload a transcript of the proceedings to NYSCEF upon receipt.

This constitutes the Decision and Order of the Court.

657310/2017 UNITED HAY, LLC vs. HAROUNIAN, JACOB Motion No. 006 Page 1 of 2 2/1/2022

657310/2017 UNITED HAY, LLC vs. HAROUNIAN, JACOB Motion No. 006 Page 2 of 2

Unless a party files a Notice of Exception pursuant to Section 9 above, any decision or order by Special Referee Cardello shall have the same force and effect as if issued by - | the Court.

In the event those fees and disbursements exceed the Retainer deposited with Special Referee Cardello, the Obligated Parties will be billed for the excess in accordance with Section 13(c) below.

Uponthe final disposition ofthis action, the full amount paid for the services and expenses of Special Referee Cardello may be reallocated amongst the Obligated Parties, as the Court in its discretion shall determine.

Special Referee Cardello may issue a written decision and order, as soon as pfacticable after the telephonic disclosure conference, based upon the Discovery Letters.

Special Referee Cardello may request additional letters, affidavits and/or other information during or after the telephonic disclosure conference which will aid in the renderingofhis decision.

I hereby direct that the 6 documents identified on United Hay’s document-by-document privilege log dated July 8, 2021 and produced to me bearing Bates Numbers HAY-IN CAMERA_00000099-108 must be produced to defendant Jacob Harounian no later than November 1, 2021.

The remaining documents which are set forth on United Hay’s categorical privilege log dated April 29, 2021 do not need to be produced to defendant Jacob Harounian.

am in receipt of additional documents provided by Stanley Ruchelman and the Ruchelman Law Firm and forwarded to me by United Hay on October 22, 2021 to conduct an in camera review and determine whether disclosure thereof is also required pursuant to my Decision dated September 27, 2021.

I will advise the parties in short order as to whether or not any of those documents must be produced.

If the reader of this email is not the intended recipient, you are hereby notified that any forwarding, dissemination, use, distribution or copying of this email, its contents, and/or its attachments, or the taking of any action in reliance on the contents thereof is strictly prohibited.

), entered May 27, 2021, which denied nonparty appellant Shahriar Homapour’s notice of exception to an April 28, 2021 decision of the Special Referee finding that he had waived common interest, work product, and trial preparation privileges, and ordering him to produce documents withheld on such grounds, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the notice of exception granted, and the decision of the Special Referee vacated.

Accordingly, waiver should not be found absent “evidence from which a clear manifestation of intent ... to relinquish [the right in question] could be reasonably inferred” (id.; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006] [same]; Wilmington Trust v MC-Five Mile Commercial Mtge.

of the State of N.Y., 194 AD3d 1140, 1141 [3d Dept 2021] [waiver “must be explicit, unmistakable, and unambiguous,” and “cannot be inferred by a doubtful or equivocal act”] [internal quotation marks omitted], lv dismissed 37 NY3d 1046 [2021]).

Appellant had asserted each of the three privileges at issue (which, again, were those for common interest, work product and trial preparation) in his written responses and objections to the subpoena duces tecum.

Finally, it is not alleged that appellant or his counsel expressly orally waived the privilege claims at issue, nor does the record reflect that appellant engaged in any gamesmanship with respect to his privilege claims or that he ever “misled [defendants-respondents] to [their] prejudice into the belief that a waiver was intended” (Jin Ming Chen, 165 AD3d at 589 [internal quotation marks omitted]).

At the outset, the Court finds that the Special Referee was not bound by principles of judicial estoppel or waiver to deny Defendant’s motion to compel.

The Court’s statements during various prior hearings did not rise to the level of binding orders that prevent the Special Referee from exercising discretion with respect to the scope of particular discovery requests.

Nevertheless, the Court agrees with the Special Referee that the existing record did not support the breadth of discovery sought by Defendant.

Plaintiff disagrees, arguing that even if Mr. Harounian did engage in such malfeasance (which he denies), it would not, as a matter of law, provide a justification for Defendant’s purported withdrawal of funds from United Hay.

The Court’s decision on that expected motion may provide greater clarity as to the appropriate scope of future discovery requests in this action.

None of the other parties have exchanged documents because we are having a dispute over the language in a confidentiality order, which I'm happy to get into right now.

None of that is going to apply to the fraud claim which was just for pure speculation about a different operating agreement existing.

... I guess to some extent I'm curious whether you are comfortable, let's assume, I went your way, that your client would never use forensic accounting to show that it didn't receive the money? In other words, you are suggesting that none ...

At the outset, the Court finds that the Special Referee was not bound by principles of judicial estoppel or waiver to deny Defendant’s motion to compel.

The Court’s statements during various prior hearings did not rise to the level of binding orders that prevent the Special Referee from exercising discretion with respect to the scope of particular discovery requests.

Nevertheless, the Court agrees with the Special Referee that the existing record did not support the breadth of discovery sought by Defendant.

Plaintiff disagrees, arguing that even if Mr. Harounian did engage in such malfeasance (which he denies), it would not, as a matter of law, provide a justification for Defendant’s purported withdrawal of funds from United Hay.

The Court’s decision on that expected motion may provide greater clarity as to the appropriate scope of future discovery requests in this action.