FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`Plaintiff,
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`-against-
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`TIMOTHY THUKU, as Administrator of the Estate of
`LEMMY THUKU, deceased,
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`324 E. 93 LLC, PERRY GAULT MANAGEMENT
`CO., INC., DAVID SHEPHERD and ASHLEY
`SHEPHERD,
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`
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`And a third-party action among the defendants.
`-----------------------------------------------------------------X
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`Defendants.
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`Index No. 452203/2018
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`AFFIRMATION IN OPPOSITION
`TO THE FRIVOLOUS ORDER TO
`SHOW CAUSE BY DEFENDANTS
`TO ADJOURN THEIR TWICE-
`COURT-ORDERED
`DEPOSITIONS
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`ELIZABETH EILENDER, affirms the following statements to be true under the penalty of
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`perjury pursuant to CPLR 2106(a):
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`1.
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`I am of counsel to Jaroslawicz & Jaros PLLC, attorneys for the plaintiff in this tragic
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`wrongful death action and am making this affirmation in opposition to the frivolous and truly
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`offensive Order to Show Cause by defendants 324 E. 94 LLC and Perry Gault Management, Co.,
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`Inc., the Building owner. These dilatory defendants seek to avoid appearing for a deposition which
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`has been twice Court-ordered (Exhibit A, Order #1, dated Jan. 29, 2019, Exhibit B, Order #2 [Bluth,
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`J.] dated March 26, 2019).
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`2.
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`This case involves the tragic death of a twenty-five (25) year old man, Lemmy Thuku,
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`who died in a house fire on October 27, 2016 due to the defendants 324 E. 94 LLC and Perry Gault
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`Management, Co., Inc.’s violations of law, recklessness, carelessness and negligence.
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`3.
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`After graduating from Pennsylvania State University, Lemmy Thuku worked in
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`financial services for BlackRock and resided with a roommate in defendants’ five-floor walk-up
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`apartment building on the Upper East Side.
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`4.
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`The Administrator, Timothy Thuku, is a brother of the decedent and lives in New
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`York City. Decedent’s sister, Phyllis Thuku, resides in Boston, MA, and the decedent’s parents and
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`another brother reside in Kenya—where the decedent was from.
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`5.
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`Plaintiff’s father appeared from Kenya to attend the plaintiff’s deposition in New
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`York last week.
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`6.
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`Defendants have no legitimate, non-frivolous basis to delay depositions AGAIN, and
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`we request that costs and sanctions be imposed them and their counsel for this frivolous
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`application. As the First Department has held:
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`Pursuant to 22 NYCRR 130-1.1 (a), a court “in its discretion, may award to
`any party or attorney in any civil action or proceeding before the court . . .
`costs in the form of reimbursement for actual expenses reasonably incurred
`and reasonable attorney’s fees, resulting from frivolous conduct” and, in
`“addition to or in lieu of awarding costs, the court, in its discretion may
`impose financial sanctions upon any party or attorney in a civil action or
`proceeding who engages in frivolous conduct as defined in this Part” (see also
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`Tag 380, LLC v. Ronson, 51 A.D.3d 471, 856 N.Y.S.2d 623 [2008]).
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`As defined in subdivision (c) of 22 NYCRR 130-1.1, conduct is frivolous if “(1)
`it is completely without merit in law and cannot be supported by a
`reasonable argument for an extension, modification or reversal of existing
`law; . . . .
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`Cadlerock Joint Venture, L.P. v. Sol Greenberg & Sons Intl., Inc., 94 A.D.3d 580, 581-582 (1st Dep’t 2012)
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`(Emphasis added); see also Visual Arts Foundation, Inc. v. Egnasko, 91 A.D.3d 578 (1st Dep’t 2012) (finding
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`sanctions hearing appropriate); see also Premier Capital v. Damon Realty Corp., 299 A.D.2d 158, 158 (1st
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`Dep’t 2002) (“The record amply supports the finding that defendant and Abrahams engaged in
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`frivolous conduct since their conduct was ‘completely without merit in law,’” and for other reasons).
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`7.
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`The filing of this Order to Show Cause is the very definition of “frivolous conduct,”
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`as it was done solely for delay and to frustrate the litigation.
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`8.
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`The plaintiff Administrator was deposed on April 24, 2019. The deposition of
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`decedent’s sister, Phyllis Thuku, who traveled in from Boston, was commenced the same day, but
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`was not completed at that time. Plaintiff decedent’s father has traveled in from Kenya to attend.
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`9.
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`By way of background, defendants 324 E.93 LLC/Perry Gault Management Co., Inc.,
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`also happen to be Third-party defendants in a property damage/mechanics lien action entitled
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`Casella Construction v. 322 East 93rd Street, LLC, commenced in Index No. 155098/2017. (the “Casella
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`Action”). The Casella Action, which is pending before Justice Ling-Cohan, was filed against the
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`adjacent building (322 East 93rd Street) by a contractor who performed work long after the fire and
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`allegedly claims to be owed money.
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`10.
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`11.
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`For obvious reasons, the Casella Action is NOT CONSOLIDATED with our action.
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`Indeed, Justice Ling-Cohan denied defendants’ motion to consolidate the actions in
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`October 2018 (Exhibit C), and although defendants have moved to reargue, no decision has been
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`issued and no oral argument has been scheduled since the motion was submitted in Room 130 on
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`January 9, 2019.
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`12.
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`Accordingly, the Casella Action has nothing to do with this wrongful death action,
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`neither procedurally nor, in my opinion, even substantively.
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`Two Court Orders And Still No Defendant Has Appeared For Deposition
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`13.
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`The Court held a discovery conference on January 29, 2019, at which time Justice
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`Bluth directed (and all counsel stipulated) that depositions must proceed as follows:
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`Plaintiff on or before March 28, 2019
`Defendants 324 E. 93 LLC/Perry Gault Management on or before April 10, 2019
`Defendant David Shepherd on or before April 18, 2019
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`Defendant Ashley Shepherd on or before May 1, 2019
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`(See Exhibit A, Order #1, dated Jan. 29, 2019)
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`14.
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`Phyllis Thuku (sister) and father Isaac Thuku (father) made arrangements to travel
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`to New York to attend the deposition of Timothy Thuku (Administrator) on the March 28th court-
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`ordered date, and days earlier were here in New York City ready to proceed. Despite having the
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`Court-ordered date for plaintiff’s deposition fully two months in advance, three days before the
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`date, the defendants called my office and begged to adjourn the deposition because attorney Peter
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`Gaudioso, whom defense counsel had chosen to conduct the deposition, was involved in a trial in
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`Brooklyn (Exhibit D, Engagement Aff dated March 26, 2019).
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`15. We were not authorized to overrule the Court’s order, and so stated to defense
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`counsel. If they wished relief from the Court’s order, they would have to seek it from Justice Bluth.
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`16.
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`The next day, March 26, 2019, we appeared before Justice Bluth, who initially was
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`inclined to deny the application but because the defendants were able to agree upon new dates, to
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`take place within 30 days, Justice Bluth granted the application and amended the prior Order. The
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`new order set the following depositions dates, which were agreed to by the defendants:
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`Plaintiff: April 24, 2019
`Defendant Building: May 7, 2019
`Defendant Shepherds: TBD, as their attorney is having a baby about that time
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`See Exhibit B, Order #2, dated March 26, 2019.
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`17.
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`The Court may recall that all parties were present on March 26, 2019 before Your
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`Honor and the dates set forth in Exhibit B were fixed.
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`18.
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`19.
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`Defendants did not make a peep about any other counsel needing to be consulted.
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`Defendant did not voice any objection as to their client having to be deposed more
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`than once. Nothing.
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`20.
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`At that time, I suspect that all they wanted was to get the plaintiff’s deposition
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`adjourned because Mr. Gaudioso was on trial and then would burden all counsel and the court with
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`this purported issue of another attorney in another action wanting to question their witness.
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`21.
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`Astoundingly, a week before the new Court-ordered date, the defendants suddenly
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`claim that a different attorney—not Peter Gaudioso, apparently—in the unconsolidated Casella
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`Action could not show up on May 7th for the Building’s deposition. Because of that attorney’s
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`unavailability, our entire case would have to be upended and delayed—as though the plaintiff’s
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`family’s loss of their 25 year-old son and brother was not tragic enough.
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`22.
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`The defendants’ conduct in seeking to avoid two Court orders shows willfulness.
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`Kroll v. Parkway Plaza Joint Venture, 10 A.D.3d 633 (2d Dep’t 2004); Emanuel v. Broadway Mall Props., 293
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`A.D.2d 708 (2d Dep’t 2002).
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`23.
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`If participation by counsel in the Casella action was so important, why did defense
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`counsel not only stay silent on March 29th but also agree to May 7th for his client’s deposition
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`without first consulting Casella counsel?
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`24.
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`The Court should not permit the defendants to continue to maneuver and avoid
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`raising their right hand and testifying.
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`25.
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`In light of what discovery and my investigation of the facts has revealed so far, we
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`are not surprised that defendant’s principal, Jeff Gault is reluctant to testify under oath.
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`26. While Mr. Gault surely sees himself as a busy man who should not have to be
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`bothered appearing more than once at a deposition, Mr. Gault and his sophisticated counsel cannot
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`ignore Court orders with impunity.
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`27.
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`Defendant’s crocodile tears of prejudice are just that. It is the plaintiff who will be
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`prejudiced by delaying the defendant’s deposition yet again.
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`28.
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`CPLR §3103 is intended to prevent prejudice, not cause it. Therefore, to delay the
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`defendant’s twice court-ordered deposition for yet a third time indeed prejudices the plaintiff.
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`29.
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`Defendants had to go back twenty-five (25) years to cite the civil court opinion by
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`Judge Braun, 9th St. Estates v. Rohatycka, 160 Misc. 2d 560, 563 (Civ. Ct.,, New York County), mod. , 162
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`Misc. 2d 502 (App. Term, 1st Dep’t 1994) which does not even stand for the proposition for which
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`defendant claims. In that case, the court directed the deposition to proceed! Id.
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`30.
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`There is not a single citation by defendants that holds that a party who happens to
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`be involved in two cases and may have to appear more than once for a deposition can dictate when
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`and where they appear, court orders be damned.
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`31.
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`In good faith, I personally advised defense counsel Mr. Zeitzoff and Mr. Gaudioso
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`that if they insisted on bringing this frivolous Order to Show Cause, I would seek costs and
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`sanctions pursuant to Uniform Court Rule, 22 NYCRR § 130.1-1.
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`32.
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`“Costs may be awarded and sanctions may be imposed where a party engages in
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`frivolous conduct” 22 NYCRR § 130-1.1(a). Conduct is “frivolous” where:
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`it is undertaken primarily to delay or prolong the resolution of the litigation,
`or to harass or maliciously injure another;
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`22 NYCRR § 130-1.1(c)(2). See Lynn v. Barnes & Nobles, Inc., 189 A.D.2d 560 (1st Dep’t 1993) (conduct
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`frivolous where intended to vex and hinder attempts to move the case forward).
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`33.
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`Here, as in Cadlerock Joint Venture, L.P. v. Sol Greenberg & Sons Intl., Inc., 94 A.D.3d 580, 581-
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`582 (1st Dep’t 2012), defendant’s Order to Show Cause to adjourn defendants’ twice-court ordered
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`deposition because a party in another unconsolidated case may also want to question the same
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`witness at some point in the future is “completely without merit in law and cannot be supported
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`by a reasonable argument for an extension, modification or reversal of existing law”. Id.
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`FILED: NEW YORK COUNTY CLERK 05/06/2019 01:10 PM
`NYSCEF DOC. NO. 226
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`INDEX NO. 452203/2018
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`RECEIVED NYSCEF: 05/06/2019
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`34.
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`Accordingly, for the reasons set forth herein, plaintiff respectfully requests that the
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`defendant’s Order to Show Cause be denied and that costs be imposed upon defendant and their
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`counsel for filing this frivolous application and forcing plaintiff’s counsel to drop everything to run
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`to Court to oppose this insanity and that the deposition of defendants 324 E 93 LLC and Perry Gault
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`Management commence forthwith.
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`35.
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`In light of the nature of this Order to Show Cause, if the defendants attempt to file a
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`Reply to plaintiff’s Opposition we request that it be summarily stricken as Replies are not permitted
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`on an Order to Show Cause without prior permission of the Court and since it was defendants who
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`drafted the Order to Show Cause, they did not provide for a Reply, none should be permitted.
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`WHEREFORE, it is respectfully requested that defendants’ motion be denied in all respects
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`with costs.
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`Dated: May 3, 2019
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`__________________________________
`ELIZABETH EILENDER
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