INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX EFRAIN GALICIA, FLORENCIA TEJEDA PEREZ, GONZALO CRUZ FRANCO, JOHNNY GARCIA and MIGUEL VILLALOBOS, Plaintiffs, -againstDONALD J. TRUMP, DONALD J. TRUMP FOR PRESIDENT, INC., THE TRUMP ORGANIZATION LLC, KEITH SCHILLER and JOHN DOES 1-4, AFFIRMATION OF NATHANIEL K. CHARNY IN SUPPORT OF ORDER TO SHOW CAUSE Index No. 24973/15E Hon. Fernando Tapia, J.S.C. Defendants. NATHANIEL K. CHARNY, an attorney duly admitted to practice law before the Courts of the State of New York, affirms under penalty of perjury as follows. 1. My firm (Charny & Wheeler) is co-counsel for Plaintiffs in this matter along with Eisner & Dictor, P.C. (Benjamin Dictor) and Roger J. Bernstein, Esq. I am familiar with the facts and circumstances of this case. I make this Affirmation in support of Plaintiffs' motion for an Order compelling Defendant Donald J. Trump's attendance at the trial in this action scheduled to begin on March 6, 2019. 2. No prior application has been made for the relief sought herein. INTRODUCTION 3. Defendant Trump has been properly served with a subpoena ad testificandum to testify at the trial in this case beginning on March 6, 2019. Instead of seeking relief under CPLR 2304 through a motion to quash, fix conditions or modify the subpoena, Defendant Trump has engaged in self-help, to wit, sending a letter to Plaintiffs' counsel "rejecting" the subpoena. 1 1 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 4. RECEIVED NYSCEF: 01/30/2019 While the CPLR offers significant remedies should Defendant Trump ignore the subpoena and his obligation to this Court as he apparently intends,1 Plaintiffs choose instead to seek judicial intervention to join issue before March 6th as to the manner in which Bronx County Supreme Court will compel Defendant Trump's testimony at the trial in this matter. 5. It is submitted that there is no basis, legal, factual or otherwise, for the claim that this Court should not compel Defendant Trump's appearance. The only question under controlling law is the place and manner of Defendant Trump's appearance. PROCEDURAL POSTURE 6. The claims herein arise out of the events of September 3, 2015, when the Plaintiffs were on a public sidewalk carrying signs to protest what Plaintiffs believed to be Defendant Trump's racist beliefs regarding immigrants. On that date, several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use, and punched one of the protestors in the head in their efforts to stop the public speech and convert Plaintiffs' property. 7. After disclosure Defendants moved for summary judgment. Their motion was denied by Justice Tapia with respect to Plaintiffs' assault and battery and conversion causes of action against all of the Defendants, including Defendant Trump. Judge Tapia instructed that the matter proceed to trial. NYSECF Doc. No. 332 (Exhibit 1 hereto). 8. With regard to Defendant Trump, Justice Tapia found more than sufficient evidence of Defendant Trump's involvement in the conduct at issue. Justice Tapia explains in 1 See CPLR 2308 (listing available remedies for disobedience of a judicial subpoena). 2 2 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 his Decision that there is ample evidence of Defendant Trump's dominion and control over the other defendants: In this analysis of the doctrine of respondeat superior, it must be noted the apparent association between defendants Trump, Trump Organization, and Trump Campaign, or synonymously the man, his company, and his campaign. Defendants' motion to disassociate the actions of Schiller, Uher, and Deck from Trump, his namesake company, and campaign as a matter of law is unavailing. To the contrary, plaintiffs raise ample issues of fact that contrary to moving defendants' claims, tends to exhibit Trump's dominion and control over Schiller, Uher, and Deck. Plaintiffs point out that Trump authorized and condoned the specific type of conduct of defendants Schiller, Uher, and Deck. Furthermore, plaintiffs proffer evidence that indicates Trump's knowledge of the altercation and subsequent seizure of the banner. The employment relationship between Uher and Deck and Trump Campaign is also a disputed issue of fact. Finally, the plaintiffs presented evidence that illustrates the close relationship between Trump and Schiller, indicating Trump's behest guided Schiller's actions. The fluidity of Schiller, Uher, and Deck's employment between Trump, Trump Campaign and Trump Organization present issues of facts that need to be addressed at trial. Ex. 1 at pp. 5-6 (footnotes with record citations omitted). 9. On January 14, 2019, all counsel appeared before the pretrial part. On consent, without objection by any party or counsel, this matter is scheduled for a date certain of March 6, 2019 to pick a jury and thereafter start the trial. SERVICE OF A SUBPOENA AD TESTIFICANDUM AND ITS "REJECTION" BY DEFENDANT TRUMP 10. On December 28, 2018, Plaintiffs subpoenaed among others Defendant Trump to appear ad testificandum at the trial. A copy of this subpoena and affirmation of service is submitted as Exhibit 2 to this affirmation. 3 3 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 11. INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 By letter dated January 11, 2019 Defendant Trump's counsel (Lawrence S. Rosen) purported to "reject" said properly served subpoena ad testificandum and articulated arguments that Defendant Trump's counsel claim support their "rejection." A copy of the communication from Defendant Trump's counsel is submitted as Exhibit 3. 12. On January 14, 2019, I appeared in the PT Part with all counsel for purposes of scheduling the trial in this matter. At that time, Defendant Trump's counsel stated to me without ambiguity that Defendant Trump had no intention of making a motion to quash the subpoena, asserted that his purported "rejection" was sufficient and stated that Defendant Trump would not be appearing for testimony at trial. 13. Because New York law is exactly the opposite of Defendant Trump's intended conduct, the instant application is being made. POINT ONE THERE IS NO BASIS TO "REJECT" A SUBPOENA 14. There is no CPLR provision, or cognizable practice, that allows a party to simply "reject" a subpoena ad testificandum. 15. The closest possible justification for Defendant Trump's purported right to reject a subpoena is CPLR 2101(f), which allows "return" where there is a defect "in the form of a paper." CPLR 2101(f). 16. This provision does not apply because there is no defect as to form, and none has been stated by Defendant Trump. Defendant Trump's objections, as stated in his "rejection" letter (Exhibit 2) are exclusively substantive, and not procedural. 17. There is no recognizable basis for Defendant Trump to simply "reject" the subpoena. 4 4 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 POINT TWO DEFENDANT TRUMP MUST COMPLY WITH THE SUBPOENA 18. It has been long held that "the right to issue a subpoena ad testificandum is absolute." Turin Housing Development Fund Co. v. Suarez, 50 Misc. 3d 1220(A), 2016 WL 688800 at *6, (N.Y.City Civ.Ct., 2016) (citing Evercore Partners Inc. v. Lazard Freres & Co., LLC, 2011 NY Slip Op 32906(U), 2011 N.Y. Misc. LEXIS 5243, 3-4 (N.Y. County 2011));2 see also Beach v. Shanley, 62 N.Y.2d 241, 247, 465 N.E.2d 304, 307 (1984); Hirshfield v. Craig, 239 N.Y. 98, 117, 145 N.E. 816, 822 (1924). 19. In New York State Com'n on Government Integrity v. Congel, 156 A.D.2d 274, 280, 548 N.Y.S.2d 663, 668 (1st Dept. 1989), the First Department explains: [A party] indisputably has the power to compel the attendance of witnesses, and, accordingly, no legal wrong will be suffered by the respondents if they are forced to appear pursuant to the subpoenas' command . . . The long established rule is that privilege may not be used as a ground to quash a subpoena ad testificandum in advance of compliance[.] Simply stated, privileges may not be asserted in advance of questions actually propounded. Id. 20. Given the reality of Defendant Trump's status as a party, and that the subpoena is ad testificandum, Defendant Trump is obligated to comply with the subpoena and appear for trial testimony. 23/23 Communications Corp., d/b/a Communications Diversified v. General Motors Corporation, 172 Misc.2d 821, 824, 660 N.Y.S.2d 296, 298 (N.Y.County 1997) (citing authority); Matter of Ocean-Clear v Continental Cas. Co., 94 A.D.2d 717, 718-19, 462 N.Y.S.2d 251, 253, (2d Dept. 1983) ("a witness subject to a subpoena ad testificandum cannot raise an 2 Copies of these two slip opinions (Turn Housing and Evercore Partners) are submitted under Exhibit 4. 5 5 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 issue of privilege until he has actually appeared and been questioned"); Evercore Partners, 2011 N.Y. Slip Op. 32906(U) at p. 2, 2011 WL 5358507 at *2 (quoting Chief Judge Cardozo and explaining: "on a motion to quash a subpoena the relevancy of the proposed testimony cannot be challenged"). POINT THREE DEFENDANT TRUMP'S "WAIVER" ARGUMENT IS FRIVOLOUS 21. In his counsel's letter "rejecting" the subpoena, Defendant Trump argues that Plaintiffs have waived the right to subpoena Defendant Trump to appear at trial because Plaintiffs did not take Defendant Trump's deposition during discovery. Ex. 2 at p. 2 (arguing: "after no less than ten pretrial depositions, the Plaintiff's elected to serve and file their note of issue certifying that all discovery was complete, without re-noticing the deposition of [Defendant] Trump or seeking to renew their motion to compel his deposition" (emphasis in original)). 22. This argument is frivolous. As has been long established, there is no such thing as waiving a party's right to call witnesses to trial based on the scope of discovery. Instead "[t]here is no requirement that a party depose a witness in order to call him or her as a witness at trial." Gonzalez v. City of New York, 151 A.D.3d 629, 632, 58 N.Y.S.3d 331, 333 (1st Dept. 2017); Adoptante v. The City of New York, 2018 WL 3223137 (N.Y.Sup.) (Trial Order) at p. 3, 2018 WL 3223137 at *4 (Richmond Cty. 2018) (citing cases). 23. Justice Falanga explains the black letter rule: Proffered evidence before a trial judge is not to be limited by the scope of what passed between counsel in pretrial disclosure. For tactical, costs or other good reasons, a party may choose not to do extensive disclosure and yet may proceed to trial. They should not be limited because they did not take advantage of their pretrial rights. 6 6 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 L.F. v. K.F., 958 N.Y.S.2d 646, 30 Misc. 3d 1209(A), 2010 N.Y. Slip Op. 52336(U) at p. 2, 2010 WL 5566828, at *2 (Nassau County 2010). 24. The waiver argument is even more inapposite as it relies upon a baseless interpretation of Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636 (1997). Defendant Trump would have the Court conclude that Clinton v. Jones stands for the proposition that there is a "required procedure for compelling testimony from a sitting President [in a state court]." That is, according to Defendant Trump's counsel, a sitting president's testimony is mandated to be: (i) exclusively by video tape; (ii) taken at the White House; and (iii) occurs only as part of discovery. See Ex. 3 at p. 2. 25. First, Clinton v. Jones has nothing to do with limiting trial testimony. Instead it stands for the nearly-opposite proposition that a sitting President has no immunity from litigation arising out of his personal conduct prior to taking office -- exactly the situation here. Clinton, 520 U.S. at 695 117 S.Ct. at 1644 ("Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent."). 26. Second, the opening sentence of the paragraph in Clinton v. Jones cited by Defendant Trump is an explicit caveat that the Court's holding has no bearing on the instant question, explaining: "[O]ur decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place." Clinton v. Jones, (1997) 520 U.S. at 691-692, 117 S.Ct. at 1643. 27. There is no legally cognizable "waiver" argument to be held against the Plaintiffs and any promotion of same by Defendant Trump should be rejected as frivolous. 7 7 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 POINT FOUR DEFENDANT TRUMP'S IMMUNITY DEFENSE IS WAIVED AND IN ANY CASE IRRELEVANT TO THE SUBPOENA 28. Defendant Trump offers only one other objection which is premised entirely on a defense immunity under the Supremacy Clause that he has pled in a different case,3 but never interposed in this matter. On that basis alone, his "immunity" argument should be rejected as waived. In any case, the immunity defense is irrelevant to the subpoena ad testificandum at issue here. 29. Waiver. The immunity defense has been waived. Defendant Trump has never pled or asserted any such immunity defense, or even anything remotely similar. CPLR 3018(b); Butler v. Catinella, 58 A.D.3d 145, 150, 868 N.Y.S.2d 101, 106 (2d Dept. 2008). 30. In the varied motion practice to date in this matter, including Defendant Trump's motion for summary judgment, no mention has been made to the Court of an immunity defense or of Defendant Trump's claimed entitlement to same. 31. On February 14, 2017, Plaintiffs filed their Note of Issue and Certificate of Readiness for Trial (NYSECF Doc. No. 144). Defendant Trump has affirmed his readiness for trial by failing to seek to vacate the Certificate of Readiness within the twenty days allowed by the Rules. Schroeder v. IESI NY Corp., 24 A.D.3d 180, 181, 805 N.Y.S.2d 79, 81 (1st Dept. 2005). 3 In both of these cases, the Supreme Court has rejected the claimed defense with notable prejudice. See People by Underwood v. Trump, 88 N.Y.S.3d 830, 835, 2018 WL 6166296 (N.Y.County 2018) (misfeasance re Trump Foundation) and Zervos v. Trump, 59 Misc.3d 790, 792, 74 N.Y.S.3d 442, 444 (N.Y.County 2018) ("No one is above the law. It is settled that the President of the United States has no immunity and is 'subject to the laws' for purely private acts."). The Zervos decision is on appeal to the First Department. 8 8 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 32. INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 And dispositively, on January 14, 2019 (only two weeks ago), Defendant Trump's lawyers stated to the Court that Defendant Trump is prepared to stand for trial on March 6, 2019, and defend the claims made against him. 33. Irrelevance. Should the Court choose to forgive Defendant Trump's waiver of the immunity defense, it is nonetheless irrelevant to the subpoena ad testificandum. Defendant Trump even as a non-party must be compelled to appear for all of the same reasons set out above because he is the principal of a party corporate defendant. Standard Fruit & S. S. Co. v. Waterfront Commission of New York Harbor, 43 N.Y.2d 11, 15, 371 N.E.2d 453, 455 (1977); Gyani v. Great Neck Medical Group, 35 Misc.3d 278, 280-281, 936 N.Y.S.2d 534, 535-536 (Nassau Cty. 2012) (Per CPLR 2302-a, "[a] corporation amenable to the jurisdiction of New York court may be subpoenaed to produce a person under its control that has knowledge of the transaction at issue. . . "). POINT FIVE THE DOCTRINE OF LACHES PROHIBITS ANY REFUSAL TO TESTIFY 34. "Laches is an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party . . . Prejudice may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay." White v Priester, 912 N.Y.S.2d 127, 129–30, 2010 WL 4907146 at *2 (2d Dept. 2010). 35. The right at issue here for purposes of laches is the purported immunity defense being raised as an excuse to avoid appearance in this matter. This immunity defense has never been raised to the Court in this matter, even to this day. This is a self-evident "neglect or omission to assert a right. . ." Id. 9 9 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 36. RECEIVED NYSCEF: 01/30/2019 The prejudice if this argument is applied as Defendant Trump proposes is also apparent; Plaintiffs will be precluded from effectuating their "absolute right" to call Defendant Trump as a witness in this trial. This is the very type of prejudice envisioned by the rule of laches. 37. If the Court affirms Defendant Trump's delusory argument, the resulting prejudice is significant, against all precedent, and therefore barred by the doctrine of laches. THE PROPOSED REMEDY 38. Unless and until Defendant Trump proffers cause for modification and/or conditions regarding the subpoena, it is submitted that Plaintiffs are entitled to an order compelling Defendant Trump to appear on March 6, 2019 in Bronx County Supreme Court and all days continuing thereafter as necessary per the subpoena ad testificandum. 39. In his "rejection" letter, Defendant Trump implies that he would be available for trial testimony per his proffered interpretation of Clinton, that is by way of "a pre-trial deposition at the White House." Ex. 3 at p. 2. Plaintiffs submit instead that live testimony is preferred. It is, as Justice Modica explains, "imperative to both sides that the [party] be subjected to live questioning. The jury will then be in a better position to assess [his] demeanor. A stenographic deposition presented to the jury could simply never accomplish that; and a videotaped deposition simply lacks the same force and effect that is inherent in real-time testimony." Nelson for Chirdo v. City of New York, 60 Misc. 3d 353, 358-59, 77 N.Y.S.3d 262, 266-67 (Queens Cty. 2018).4 4 In the Nelson for Chirdo matter, the party was too infirm to travel and instead the Court compelled her live testimony by video conferencing. Nelson for Chirdo, 60 Misc.3d at 359, 77 N.Y.S.3d at 267 ("Frankly, the ruling in this case benefits both sides and promotes the ends of justice."). 10 10 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 CONCLUSION 40. For these reasons, as well as on the entire record before the Court, it is submitted that the instant application should be granted and that the Court should issue an Order compelling Defendant Trump's live appearance for testimony in Bronx County Supreme Court on March 6, 2019 and continuing thereafter as necessary. 41. In the alternative, the Court should so-Order appropriate fixed conditions or modifications to the subpoena that are necessary but that will nonetheless ensure Defendant Trump's compliance with the subpoena ad testificandum. Dated: Rhinebeck, New York January 30, 2019 Respectfully submitted: ____________________ Nathaniel K. Charny 11 11 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 EXHIBIT 1 12 of 53 INDEX NO. 24973/2015E FILED: BRONX COUNTY CLERK 01/30/2019 08/22/2018 02:02 08:32 PM AM NYSCEF DOC. NO. 342 332 RECEIVED NYSCEF: 01/30/2019 08/22/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX EFRAIN GALICIA,COURT FLORENCIA TEJEDA PEREZ, SUPREME STATE OF NEW OF THE GONZALO CRUZ FRA CO, JOHNNY GARCIA and COUNTY OF BRONX MIGUEL VILLALOBOS , EFRAIN FLORENCIA GALICIA, GONZALO -againstMIGUEL CRUZPlaintiffs, FRANCO, YORK TEJEDA JOHNNY VILLALOBOS, DONALD J. TRUMP, DONALD J. TRUMP FOR PRESIDE T, INC., THE TRUMP ORGANIZATION Plaintiffs, LLC, KEITH SCHILLER, and JOHN DOES 1-4, PEREZ, GARCIA and Index No. 24973/20 I SE Hon. Fernando Tapia NOTICE OF ENTRY Index -agamst- Hon. Defendants. DONALD DONALD TRUMP, J. J. TRUMP Fern FOR NOTICE ORGANIZATION THE TRUMP PLEASE TAKESCHILLER, NOTICE that theand attached are true and correct copies of the Decision KEITH JOHN DOES 1-4, LLC, PRESIDENT, No. INC., and Order by the Hon. Fernando Tapia, J.S.C. , dated August 20, 2018 which was entered by the Defendants. Bronx County Clerk ' s Office on August 21 , 2018 with respect to motions nos. 6 and 7. Dated: New York, ew York August 21 , 2018 TAKE PLEASE NOTICE that By: and Order by Bronx County Dated: New August Hon. the Office Clerk's York, 21, Fernando New Tapia, on August York ROGER J. BERNSTEIN ~ the J.S.C., ~ attached are dated true August and copies 2018 20, thfloor New York, NY 10017 (212) 748-4800 2018 with respect 21, rbemstein@rj blaw.com correct to which motions wa nos. EIS ER & ASSOCIATES, P.C. 2018 By: rJ~f~ ROGER Be jamin . Dictor 39 Broadway, Suite 1540 New York, NY IBy: 0006 (212) 4 73-8700 J. ben@eisnerassociates.com Roge 535 Counsel.for Plaintiffs TO: Counsel of Record for All Defendants (by NYSCEF) New ifth J. Bernstièin Avenue, NY York, (212) BERNSTE 1001 748-4800 rbernstein@riblaw.com EISNER 13 1 of of 17 53 & ASSOCIA . - - INDEX 0£f21 , 2018 02:02 11: 28 ~ INDEX NO. NO. 24973/2015E 24973/2015E !FILED: FILED: BRONX COUNTYCOUNTY CLERK 01/30/2019 08/22/2018 08:32 AM PM CLERK 08/21/2018 11:28 (FILED: BRONX ANd NEW YO= su=REME COORT- c=NTY OF RECEIVED Mlls!i>mo NYSCEF: NYSCEFc 01/30/2019 08/ ~ 0 8 NYSCEF DOC. 332 08/22/2018 DOC. NO. NO. 342 330 - COUNTY NEW YORK SUPREME COURT OF itla9 NYSCEF DOC. NO. 330 ~ PART 13 PART SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: THE OF STATE OF NEW YORK Index NQ. BRONX: _____---- -against- 0 0 [ Schedule Appearance D I -------------------------------------------------------------------X SUPREME COURT GALICIA, EFRAIN COUNTY OF Case Disposed 13 Settle Order Hon. -------------------------X 0024973/2015 FERNANDO TAPIA, Justice Supreme Court TRUMP, DONALD JEFRAIN GALICIA, Index Coot.:J -------------------------------------------------------------------X -against- Hon. N9. 0024973/ FERNANDO The following papers numbered 1 to _ _ Read on this motion, SUMMARY JUDGEMENT DEFENDANT Noticed on A ue:us t 01 2017 an d dUy 1 SUbm1·tted as N o. . Ca1end ar of on th e M ot1on DONALD J TRUMP, PAPERS NUMBERED Justice Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits The numbered papers following Read 1 to on this Replying Affidavit and Exhibits on Noticed August 2017 01 and submitted duly as SUMMARY motion, on No. the Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) Minutes to Show Notice - Referee's of MotionReport- - Order Cause - Ey-hibits Filed Papers and Affidavit Answering Exhibits Memoranda of Law Affidavit Replying and Exhibits Upon the foregoing papers this Affidavits - Exhibit "lcadiñgs - Referee's Stipulatien(s) Filed - Minutes Papers Memoranda Upon Report the of Law foregoing papers this Dated: 14 21 of of 17 53 8 and Exhibits and Affidavits Annexed Motion JUDG Calendar INDEX INDEX NO. NO . 24973/2015E 2 4 973/2015E INDEX 24973/2015E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM [FILED BRONX COUNTY CLERK 08 /21/2018 28 11: AM NYSCEF DOC. 332 DOC . NO. NO 330 NYSCEF DOC. NO. . 342 330 RECEIVED NYSCEF: 08/22/2018 NYSCEF : 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 SUPREME COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK YORK COURT SUPREME 13 COUNTY OF BRONX: BRONX: Part Part 13 OF COUNTY EFRAIN GALICIA, FLORENCIA FLORENCIA TEJEDA TEJEDA PEREZ, PEREZ, EFRAIN GALICIA, GONZALO CRUZ FRANCO, FRANCO, JOHNNY JOHNNY GARCIA GARCIA & & CRUZ GONZALO MIGUEL VILLAOBOS VILLAOBOS MIGUEL 24973-2015E Index:24973-2015E Index: Plaintiffs, Plaintiffs, J.S.C. Hon. Fernando Fernando Tapia, JS.C. Tapia, Hon. - against -- - against TRUMP FOR DONALD J. TRUMP J. TRUMP, DONALD J. FOR DONALD DONALD TRUMP, PRESIDENT, INC., THE TRUMP TRUMP ORGANIZATION ORGANIZATION LLC, LLC, THE INC., PRESIDENT, JON EDWARD GARY KEITH SCHILLER, GARY UHER, EDWARD JON KEITH SCHILLER, UHER, AND JOHN JOHN DOES DOES 3-4, 3-4, DECK, JR., DECK, JR., AND Defendants. DECISION DECISION Defendants. Plaintiffs bring this this action action against against defendants defendants alleging alleging assault assault and and battery, battery, conversion conversion and and Plaintiffs bring Donald J. Trump Defendants of property, property, negligent negligent hiring hiring and and supervision. supervision. Defendants Donald J. (Trump), destruction destruction of (Trump), Trump Schiller move The Organization, LLC LLC (Trump (Trump Organization), Organization), and and Keith Keith Schiller move for for an an order order The Trump Organization, Trump The remaining of the the defeñdañts. defendants. The remaining under CPLR 3212 granting granting summary summary judgment judgment inin favor favor of CPLR 3212 under Edward defendants, Donald J.J. Trump Trump for for President, President, Inc Inc (Trump (Trump Campaign), Campaign), Gary Gary Uher, Edward Jon Jon Donald Uher, defendants, both address Deck, Jr in aa similar similar motion motion move move for for the the same same relief. relief. This This decision decision will will address both motions. motions. Jr in Deck, I. I. Assault and and Battery Battery Assault as she she was Defendants argue argue that that plaintiff plaintiff Perez Perez assault assault and and battery battery claim claim must must fail fail as was Defendants unsuccessful inin coming coming forward forward with with evidentiary evidentiary proof proof sufficient sufficient toto demonstrate demonstrate who who precisely precisely unsuccessful "short" and committed an assault assault or or battery battery against against her. her. Perez Perez testified testified at at her her deposition deposition that that a "short" and an committed "dark-skin" "dark-skin" security guard guard that that came came out out of of Trump Trump tower tower and and identified identified himself himself as as working working for for security guard defendant Trump touched touched her her without without consent. consent. 11 Perez Perez further further testified testified that that the the security guard defendant security Trump 11Perez tr at at 35-39. Perez tr 35-39. of 17 15 32 of of 53 8 FILED : BRONX COUNTY RFILED: COUNTY CLERK 08/21/2018 11:28 AMI CLERK FILED: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM 08 /21/2018 11: 28 ANQ INDEX INDEX NO. NO . 24973/2015E 24973/20 1 5E INDEX 24 NO. 973 / 2 015E NYSCEF DOC . NO. NO 330 NYSCEF DOC. NO. . 342 330 NYSCEF DOC. 332 RECEIVED 08/22/2018 RECEI VED NYSCEF: NYSCEF : 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 who touched touched her her asked asked to to her her to to remove remove her her costume costume and and "leave the place." place." 22 Defendant Defendant Deck Deck "leave the who testified that a female protestor wearing wearing aa Ku Ku Klux Klux Klan Klan costume costume and and told told her her protestor approached female that he he approached testified "you guys need need to to move move because because this this isis not not -- it's it's not not aa safe safe environment." environment." 33 The The issue issue ofof whether whether "you guys or possibly possibly one one of of the the John John defendant Deck was, in fact, the the same same individual individual as as alleged alleged by by Perez Perez or Deck in fact, was, defendant 4 question of for the the jury jury to to determine. In either either Doe plaintiff argues, would be be a question Doe defendants, of fact fact 4 for determine. In plaintiff would argues, defendants, instance, is found found that that Deck Deck or or defendant defendant John John Doe Doe had, had, inin fact, fact, made made contact contact with with Perez, Perez, ifif itit is instance, defendants Trump, Trump Organization, and Trump Campaign would would be be liable liable under under the the and Campaign defendants Trump, Organization, Trump Trump doctrine of of respondeat respondeat superior. superior. Under Under the the doctrine doctrine of of respondeat respondeat superior, superior, an an employer employer may may be be doctrine held vicariously responsible responsible for for aa tort tort committed committed by by his his or or her her employee employee within within the the scope scope of of held vicariously 55 Defendants failed employment. have failed to meet their prima prima facie facie burden burden of of entitlement entitlement to to employment. Defendants have meet their to judgment on on Perez's claim as as aa matter matter of oflaw. Perez's claim law. judgment Defendants also seek seek to Defendants also to dismiss dismiss plaintiff plaintiff Galicia Galicia assault assault and and battery battery claim claim on on the the grounds grounds Schiller was acting in "The of protecting protecting one's one's that Schiller was in self-defense self-defense when when he he assaulted assaulted him. him. "The necessity of acting necessity that self against against attack attack isis aa defense defense against against liability liability for for assault assault and and battery battery as as aa justification justification for for acts acts self the otherwise would constitute which otherwise would constitute the tort." tort." 66 The facts surrounding surrounding the the altercation altercation between between The facts which Schiller and on Schiller and Galicia Galicia are are disputed. disputed. Plaintiff Plaintiff asserts asserts that that the the assault assault by by defendant defendant Schiller on Schiller Schiller made Galicia took took place place when when Schiller made physical physical contact contact with with Galicia Galicia by by tearing tearing away away aa sign sign from from Galicia Mr. Galicia's Galicia's hand. Mr. hand. 77 Defendants assert Schiller Defendants contrarily assert that Schiller had removed removed aa sign sign that that was was that had contrarily impeding traffic traffic and and Galicia, Galicia, inin fact, fact, was was the the one one who who initiated initiated the the contact. contact. impeding 8 8 After this this initial initial After ______ 2 Id at 2 11-12. lines 11-12. Id at 38, 38, lines 3 3 Deck tr at Deck tr 96-97. at 96-97. *4 Winegrad v. New Univ. Med. York Univ. NY2d 851, Winegrad v. New York Med. Center, 64 NY2d 851, 852 852 (1985) (1985) (On (On a motion motion for for summary judgment, the the Center, 64 judgment, summary proponent proponent "must "must make make aa prima prima facie facie showing showing of of entitlement entitlement to to judgment judgment as as aa matter matter of of law, law, teiidering tendering sufficient sufficient evidence to eliminate eliminate any any material material issues issues of of fact fact from from the the case"). case"). evidence to 5 5 Jones Jones v Hiro Hiro Cocktail 139 AD3d Dept. 2016). 139 AD3d 608 (1st Dept. 2016). Cocktail Lounge, 608 (1st Lounge, 6 6A 6 Jur Assault Assault -11. 6A NY Jur -- Civil Civil Aspects Aspects § 11. 7 7 Galicia tr at 79-81. 8 8 132-133. Schiller Schiller trtr at at 105-106, 132-133. 105-106, 124-125, 124-125, 2 f 17 16 43 of of o 8 of 853 INDEX INDEX 24973/2015E NO . 24973/2015E INDEX NO. NO. AM) 11:28 08/21/2018 FILED:: BRONX COUNTY CLERK 01/30/2019 08/22/2018 02:02 08:32 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 28 !FILED: 11: AM 08/2 1 /20 1 8 NYSCEF : 08/22/2018 RECEIVED RECEIVED NYSCEF: 01/30/2019 NYSCEF: 08/21/2018 330 NYSCEF NO. 332 DOC. NO. NYSCEF DOC. 342 DOC. NO. 330 his off his in Galacia off repelling Galacia in repelling in self-defense self-defense in acted Schiller assert, Schiller acted defendants by Galicia, defendants contact contact assert, Galicia, by material of facts facts issues of eliminate material issues to eliminate have failed to have failed defendants defendants abound; of of facts facts person. 99 Questions Questions abound; person. case. this case. from this from and pain and for pain damages for recover damages can recover battery can tortious battery for aa tortious action for Galicia inin action Furthermore, Galicia Furthermore, 10 Mr. Galicia of the Mr. Galicia alone. 10 plaintiff alone. the plaintiff in testimony of the testimony in the be found can be found can damages Those suffering. Those damages suffering. of pain and anxiety. anxiety. complained pain and of he complained where he Hospital where Lincoln Hospital went toto Lincoln went II 11 Plaintiffs subjective Plaintiffs subjective some she is entitled toto some is entitled or she he or which he for which sufficient injury for an injury establish an to establish to be sufficient may be pain may of pain testimony of testimony denied. are denied. claims are battery claims and battery assault and Galicia's assault on Galicia's judgment judgment on compensation. Summary Summary compeñsation. II. II. Property Destruction ofof Property & Destruction Conversion & Conversion plaintiffs' their without their banners without of plaintiffs' banners possession of took possession that defendants that took it this claim, alleged defendants In In this it is is alleged claim, Trump of sidewalk in front of Trump in front public sidewalk the public stood on the on they stood while they them while from them taking from forcibly taking by forcibly consent consent by Tower. Tower. 12 12 an or an legal ownership or legal ownership must show show plaintiff must the plaintiff conversion, the for conversion, claim for establish aa claim "To establish "To the that the show that must show and must thing and identifiable thing specific identifiable superior right possession toto aa specific right ofof possession immediate superior immediate its alteration ofof its the alteration question, toto the thing inin question, dominion over the the thing over exercised an unauthorized unauthorized dominion an exercised defendant defendant rights." plaintiffs rights." the plaintiffs condition or the exclusion of the of the exclusion or condition 13 13 to has failed failed to plaintiff has that plaintiff assert that Defendants assert Defendants them. use them. ability toto use their ability of their deprived of were deprived plaintiffs were the plaintiffs that the or that signs were altered or were altered the signs establish the establish took then took and then Schiller tore signs and the signs one ofof the tore one defendant Schiller that defendant posit that To the plaintiffs posit contrary, plaintiffs the contrary, To of their for six six weeks. weeks. banner for their baññêr possession of possession 14 14 one ofof damage toto one evidence ofof damage submitting evidence by submitting Plaintiffs by Plaintiffs the of the exclusion of the exclusion banner toto the confiscation of the the banner of unlawful confiscation Schiller and the the unlawful and by Schiller signs the signs by the 9 Id. 9 /d. 1° 10 127 AD2d 1987). Dept 1987). Misc. 937, N.Y.S.2d 547; (2nd Dept 822 (2nd AD2d 822 Abergel, 127 McCombs v. Hegarty, 130 N.Y.S.2d Levine vv Abergel, 547; Levine 937, 130 See 205 Misc. Hegarty, 205 See Mccombs 11 11 Galicia Galicia tr at 97-106. at 97-106. tr tr at 72-81. at 72-81. tr 13 13 (N.Y.Sup.Ct. Discount 1136[A {N.Y.Sup.Ct. ñdépéñdEñce Corp. Discount Corp. Inv. v. GC GC Metrics, Misc.3d 1136[A 2008) A & G G Research, 19 Misc.3d Inc., A& Metrics, Inc., 19 Research, Inv. 2008) citing citing Independence Dept.1975). 756 (2d (2d Dept.1975). A.D.2d 756 47 A.D.2d v. Bressner, Bressner, 47 14 14 81. Galicia tr tr 81. Galicia 12 Galicia 12 Galicia 3 3 of 17 17 544 of of 53 8 8 [FILED BRONX COUNTY RFILED: COUNTY CLERK 08/21/2018 11:28 AMI CLERK FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM 08/21/2018 11: 28 AM) NYSCEF DOC . NO. NO 330 NYSCEF DOC. NO. . 342 330 NYSCEF DOC. 332 INDEX INDEX NO. NO . 24973/2015E 24973/20 INDEX 2 4 973/2015E 1 5E NO. RECEIVED 08/22/2018 REC EI VED NYSCEF: NYSC EF: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 plaintiffs rights rights have have met met their their prima prima facie facie burden. burden. The The assertion assertion that that plaintiffs plaintiffs must must prove prove their their plaintiff's defendants' intended use the signs while the the signs were in is without without merit. merit. while were in defendants' possession possession is use of of the signs signs intended Defendants fail fail toto provide provide any any legal legal precedent precedent for for this this notion. notion. Swnmary judgment on on the the judgment Summary Defendants conversion and claim is denied. destruction claim is denied. conversion and destruction Ill. HI. Negligent Hiring, Hiring, Retention Retention & Supervision & Supervision Negligent The court court next next examines examines whether whether defendants defendants Trump Trump Organization Organization or or Mr. Mr. Trump Trump met met their their The burden on the burden for summary judgment on the claim that they they cannot cannot be be found found liable liable for for defendants defendants for judgment claim that summary negligent hiring, hiring, retention, retention, and and Schiller, Deck and and Uher's Uher' s intentional intentional tort tort under under the the theory theory ofof negligent Deck Schiller, supervision. Defendants Defendants argue argue that that this this claim claim must must be be dismissed, dismissed, citing citing Karoon Karoon vv New New York York City City supervision. Transit Transit Authority, Authority, "15 "Generally, where an an employee employee isis acting acting within within the the scope scope ofof his his where "Generally, or or her her cmployment, employment, thereby thereby rendering rendering the the employer employer liable liable for for damages caused any caused by the the cmployee's employee's negligence negligence under under aa any damages by respondeat of no claim theory of respondeat superior, no claim may proceed against proceed against superior, theory may employer for or the negligent is because because the employer for negligent hiring or retentien. retention. This This is hiring ifif the the employee employee was was not not negligent, negligent, there there isis no no basis basis for for imposing liability liability on on the the empleyer, employer, and and ifif the the employee employee was was imposing negligent, the the employer employer must must pay pay the the judgment judgment regardless regardless ofof negligêñt, the rcasôñableness of the the reasonableness of the hiring hiring or or retention retention or or the the adequacy adequacy ofof training." the the training." Deck Defendants argue argue since since the the acts acts were were within within the the scope scope ofof Schiller, Deck and and Uher Uher Schiller, Defendants the plaintiffs cannot maintain claim employments, the plaintiffs cannot maintain a claim against their their employers employers for for negligent negligent hiring hiring against employments, or supervision. They They additionally additionally argue argue that that plaintiffs' plaintiffs' claim claim for for negligent negligent hiring, hiring, retention, retention, and and or supervision. supervision fails as a matter of law since the supervision fails as matter of law since the record record isis devoid devoid ofof any any evidence evidence that that they they knew knew or or have known should have known should 16 16 of Deck for violence of Schiller, Deck and and Uher's Uher's propensity propensity for or violence or assaultive assaultive Schiller, 15 15 (1st Dept Dept 1997). 1997). 241 AD2d 323 241AD2d 323 (1st l' 16 Sheila C. 11 AD3d C Pavich, AD3d 120, 129-130 (1st Dept 2004) (employer knew or or should (1st Dept should have known of of the Sheila knew the employee's have known emp õyee's Povich, 11 120, 129-130 2004) (employer "propensity for for the the sort sort of of conduct conduct that that caused caused the the injury"). injury"). "propensity 4 of 18 65 of of 17 8 of 853 [FILED BRONX COUNTY RFILED: COUNTY CLERK 08/21/2018 11:28 AMI CLERK FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM 08/21/2018 28 11: ANQ NYSCEF DOC . NO. NO 330 NYSCEF DOC. NO. . 342 330 NYSCEF DOC. 332 INDEX NO. INDEX NO . 24973/2015E 24973 /20 15E INDEX NO. 24973/2015E RECEIVED 08/22/2018 RECEIVED NYSCEF: NYSCEF : 01/30/2019 08/21/20 1 8 RECEIVED NYSCEF: 08/21/2018 behavior. Plaintiffs Plaintiffs inin their their opposition opposition failed failed toto present present any any theory theory as as toto how how this this alleged alleged behavior. no these employees' employees' duties duties and and furthermore furthermore provided no intentional tort was was outside outside the the scope scope ofof these provided intentional tort proof ofof any any prior prior bad bad acts acts or or disciplinary disciplinary actions actions that that would would indicate indicate aa propensity propensity for for the the alleged alleged proof action for for negligent negligent hiring, hiring, retention, retention, and and supervision supervision isis tortious conduct. conduct. Plaintiffs Plaintiffs cause cause ofof action tortious dismissed. dismissed. IV. IV. Respondeat Superior Superior Respondent of an The doctrine ofof respondeat respondeat superior superior generally generally imposes imposes liability liability for an employee employee for acts acts of The doctrine upon the the employer employer ifif the the employee employee was was acting acting within within the the scope scope ofof his his employment. employment. upon 17 17 Determination of whether whether acts acts are are within within the the scope scope ofof employment employment for for purposes purposes ofof vicarious vicarious Determination of an liability, require an inquiry inquiry into into whether whether they they advance advance the the interests interests ofof the the employer employer inin some way require some way liability, and are are not not done done solely solely toto benefit benefit the the employee. employee. and 18 18 Defendant Trump Trump moves moves toto dismiss dismiss all all remaining remaining claims claims against him as as he he was was not not against him Defendant never in the involved in the altercation altercation and and never exercised dominion dominion or or control control over over the the seized seized banner. banner. involved exercised Similarly, Trump, Trump Trump Campaign, Campaign, and and the the Trump Trump Organization Organization move move toto dismiss dismiss because because Similarly, Trump, Uher defendants defendants Uher and and Deck Deck were were not not their their employees employees or or agents agents and and therefore therefore vicarious vicarious liability liability fails to fails to apply. apply. Specifically, Specifically, they they argue argue that that defendants defendants Uher Uher and and Deck Deck were were never never employed employed by by them, and and were, were, instead instead ofof employees employees ofof XMark, XMark, aa third-party, third-party, independent independent contractor. contractor. them, In this the doctrine doctrine ofof respondeat respondeat superior, superior, itit must must be be noted noted the the apparent apparent In this analysis analysis ofof the association between between defendants defendants Trump, Trump, Trump Organization, and and Trump Trump Campaign, Campaign, or or Organization, Trump association the synonymously the man, man, his his company, company, and and his his campaign. campaign. Defendants Defendants motion motion toto disassociate disassociate the the synonymously actions of Schiller, actions of Uher, and and Deck Deck from from Trump, Trump, his his namesake namesake company, company, and and campaign campaign as as aa Schiller, Uher, law is matter ofoflaw is unavailing. unavailing. To To the the contrary, contrary, plaintiffs plaintiffs raise raise ample ample issues issues ofof fact fact that that contrary contrary toto matter 17 COrnell 17 State Of NY2d 1032, 1033 (1979). Cornell vV State of New New York, 46 NY2d (1979) . YOrk, 46 1032, 1033 18 N.X. v 18 Medical Center, NY2d 247 N.X. v Cabrini Cabrini Medical Center, 97 97 NY2d 247 (2002). (2002). 5 of 19 766 of of 17 of 853 [FILED BRONX COUNTY RFILED: COUNTY CLERK 08/21/2018 11:28 AMI FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM CLERK 08/21/2018 2 8 11: ANG NYSCEF DOC . NO. NO 330 NYSCEF DOC. NO. . 342 330 NYSCEF DOC. 332 INDEX INDEX NO. NO . 24973/2015E 24973/20 1 5E INDEX NO. 24973/2015E RECEIVED 08/22/2018 RECE I VED NYSCEF: NYSCE F: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 moving defendants' defendants' claims, claims, tends tends toto exhibit exhibit Trump's Trump's dominion dominion and and control control over over Schiller, Uher, Schiller, Uher, moving and and Deck. Deck. Plaintiffs point out out that that Trump Trump authorized authorized and and condoned condoned the the specific specific type type ofof conduct conduct ofof Plaintiffs point defendants Schiller, Uher, and and Deck. Deck. Schiller, Uher, defendants B 19 Furthermore, plaintiffs plaintiffs proffer proffer evidence evidence that that indicates indicates Furthermore, of the of altercation and and subsequent subsequent seizure of the baññer. banner. Trump's knowledge knowledge of the the altercation seizure Trump's 20 20 The employment employment The relationship between between Uher Uher and and Deck and Trump Trump Campaign Campaign isis also also aa disputed disputed issue issue ofof fact. fact. Deck and relationship 21 21 Finally, the plaintiffs presented evidence that illustrates illustrates the the close close relationship relationship between between Trump Trump the presented evidence that plaintiffs Finally, actions.22 22 and Schiller, indicating Trump's Trump ' s behest guided Schiller's actions. The fluidity ofof Schiller, Uher, behest guided Schiller's The fluidity Schiller, Schiller, Uher, indicating and and Deck's Deck' s employment employment between between Trump, Trump, Trump Trump Campaign Campaign and and Trump Trump Organization Organization present present and of facts facts that at trial. issues of that need to be be addressed at trial. need to addressed issues V. V. Punitive Damages Punitive Damages Defendants' motion motion seeking summary judgment judgment striking striking plaintiffs' plaintiffs' The branch branch ofof Defendants' seeking summary The for punitive punitive denied. of punitive requests for damages is denied. The award of punitive damages under the the circumstances damages is The award under damages circumstances requests ____. " Dictor 19 Dictor Aff, to reporters regarding protestors at rally: microphone Exhibit 28 28 (Trump reporters protestors at a campaign campaign rally: "[Tjhe "[T]he microphone Aff, Exhibit (Trump speaking speaking to regarding -- whole place which liked just took took the the whole place over. over. And And the the audience, audience, which liked him, him, I mean, mean, they they were him -- they're they're saying, saying, they just were him they 'What's going That will will never with me. don ' t know know ifif I'll I'll do do the the fighting fighting 'What's going on? on? How How could could this this happen? happen? That never happen happen with me. I don't Dictor Aff, myself, or or ifif other other people people will") Aff, Exhibit 27 (Trump (Trump speaking speaking to to reporters reporters regarding regarding protestors protestors at at aa Exhibit 27 myself, wilf'); ; Dictor campaign rally: : "The man you roughed he was so obnoxious obnoxious and and so so loud, loud, he he was screaming. had campaign rally you say up, "The man was roughed was sc I had was so eùùihig. up, he say was room yesterday. 10,000 people the room yesterday. 10,000 people. And 10,000 10,000 people. And this this guy guy started started screaming screaming by by himself. himself II don't don't know, know, rough rough people in the been -- maybe maybe he he should should have been roughed roughed up because it was he should should have have been up, because it was absolutely disgusting what he have been what he up, he up absolutely disgusting was doing"); Dictor Aff, was doing"); Dictor Aff, Exhibit 27 (Trump (Trump respcñdiñg responding to to protestors protestors at at aa campaign campaign rally: him out out into into the the Exhibit 27 rally: "Throw "Throw him cold! You know. their know. Don't Don't give give them them their their coat. coat. No No coats. coats. No No coats! coats! Confiscate their coats!"). coats!") . cold! You Confiscate 20 20 Dictor December Exhibit 23 Magazine 23 (In (In aa December 9, 2015 2015 interview interview with with TIME TIME Magazine regarding this this specific specific protest, DictorAff,Aff, Exhibit 9, protest, regarding defendant makers. with Trump: trouble With the records. The planters were The planters we have, defendant Trump : "They were trouble makers. With records, by the way, with records. we have, records, by way, "They they're plantings. called the BéGutification Avenue. expensive It's Fifth We plants. they're very expensive plantings. It's called the Beautification of Fifth Avenue. We have these very expensive plants. have these expensive of very very And are putting their cigarettes on these guys out the they're them. They're their cigarettes out on the thing, they're sitting in them. They're sitting there waiting, And these guys are there thing, putting waiting, sitting sitting were dressed of the the plants. plants. They dressed as as Ku Ku Klux Klux Klan. Klan . You know that? that? You You know know when when holding the the signs, signs, sitting sitting on on top top of You know holding They were first dressed as Ku okay. think came out were Klux Would you that was Ku first came out they were dressed as Ku Klux Klan, okay. Would you think that if somebody was dressed as Ku they dressed as Klan, they they if somebody Klux were dressed were sitting Klux Klan-you Klan-you know, know, they they were dressed as as Ku Ku Klux Klux Klan. Klan. And And they they were sitting in in the the planters, planters, they they were sitting on on were sitting plants. did a lot change plants"). the plants. They we had had to top of we to change the the plants"). damage, top of the They did a lot of of damage, 21 21 tr at Uher tr (Uber testifying that did not at 39 39 (Uher he did not believe believe he he was Deck tr Uher that he was ever ever paid paid by by XMark); XMark); Deck tr at at 27-32 27-32 (Deck (Deck testifying he was was hired hired to to preform services for for the the Trump he preform security Trump Organization). Organization). testifying testifying security services 22 22 See See Schiller Schiller trtr 52-54 52-54 (Schiller (Schiller unable unable to to clearly clearly identify identify his his empicyer). employer). 6 6 of 20 87 of of 17 8 of 853 INDEX INDEX NO. NO . 24973/2015E INDEX 2 4973/2015E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM [FILED BRONX COUNTY CLERK 08/21/2018 28 11: AM) DOC . NO. NO 330 NYSCEF NYSCEF DOC. 332 DOC. NO. . 342 330 NYSCEF : 01/30/2019 08/2 1 /20 1 8 RECEIVED RECEIVED NYSCEF: 08/22/2018 NYSCEF: 08/21/2018 discretion of warranting the allowance of rests inin the the discretion of the the trier trier ofof facts. facts. of same same rests allowance the warranting 23 23 It is for the the trier trier ofof It is for facts whether defendants conduct justifies such such an an award, award, which which must must rise rise toto the the justifies conduct whether defendants determine facts to to determine motive." malice" 24 level of or motive." 24 Accordingly, itit isis "evil or "evil or malice" or of "spite "spite Accordingly, level ORDERED that plaintiff plaintiff Gonzalo Cruz Franco's claims claims are are dismissed dismissed as as he he has has Franco's Gonzalo Cruz ORDERED that and itit is withdrawn his in this this action; and is further further in withdrawn his claims claims action; of for negligent negligent hiring, hiring, retention, retention, and and supervision supervision ORDERED that cause of action for plaintiffs cause action ORDERED that plaintiffs is further are and further are dismissed; and itit is dismissed; sought by defendants defendants are are denied. denied. ORDERED that all reliefs sought all other other reliefs ORDERED that by decision of the court. the This constitutes the decision of the court. constitutes This 2018 Dated: August August 20, 20, 2018 Dated: Hon. Fernando Hon. F rnand NY Bronx, NY Bronx, apia ²³ 23 NY2d 940. 61 AD2d Inc. v Columbia CG ümbic Broadcasting Le Mistral, Inc. System, AD2d 491, 491, 495, 495, app. app. dismd dismd 46 46 NY2d 940. System, 61 Mistral, Broadcasting ²* Marinaccio 24 NY 3d (2013). Town of 20 NY 3d 506 Marinaccio v Town 506 (2013). Clarence, 20 of Clarence, 17 of 17 21 98 of of 53 8 J.S.C. m INDEX !FILED= 0£f 21 ~ 2018 08/21/2018 11 =28 PM IN DEX NO. NO . 24973/2015E 2 4 9 7 3/20 15E FILED: BRONX COUNTYCOUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM IFILED BRONX CLERK 11:28 : AM) NYSC EF DOC. DOC . NO. NO. 342 331 NEW YO SU REME COURT- C NTY OF RECEIVED ~ N ¥D NYSCEF: NYSC EF: 01/30/2019 08/ 2 1 20 1 8 NYSCEF 332 08/22/2018 - COUNTY OF yg COURT NEW YORK SUPREME NYSCEF 331 DOC. NO. PART 13 0 ase Di posed ettle Order 0 chedule Appearance 0 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: --- --------------------------------------------------------------X SUPREME COURT OF THE STATE OF NEW YORK Index NQ. GALICIA, EFRAIN COUNTY OF BRONX: ...----------------------against- 0024973/201 S FERNANDO X TAPIA, Hon. Justice Supreme Court TRUMP, DONALD JEFRAIN GALICIA, Index N9. 0024973/ -------------------------------------------------------------------X -againstHon. FERNANDO The following papers numbered 1 to _ _ Read on this motion, SUMMARY JUDGEMENT DEFENDANT . d as N 0. . Ca1end ar of Noticed on A UITT.lll t 01 2017 an d d u Iy su bm1tte on th e M ot10n DONALD Justice J TRUMP, PAPERS NUMBERED ___________-----------X Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits The numbered papers following Read 1 to on this on Noticed August 2017 01 and as sühiiiitted duly SUMMARY motion. Replying Affidavit and Exhibits on No. the Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) Minutes to Show Notice - Referee's of MotionReport- - Order Cause - Exhibits Filed Papers Affidavit Answering and Exhibits Memoranda of Law Affidavit Replying and Exhibits Upon the foregoing papers this Affidavits - Exhibit "Icadi-.p - Referee's Stipulatioñ(s) Report - Minutes 0 ...... "O Filed 11) t:: Papers ~ 11) Memnmnda ~ of Law b <......B (.) ll) Upon 0.. the foregoing papers this "' ll) ~ ·-"' ~ ·-::E -~"' ll) 0 "O ll) ...... ...... ...... 0 Cll ;:::l ,-..., Cl ated: ; 1.0 I 2,-C)/f> .. 22 10 17 1 of o f 53 8 and Exhibits and Affidavits Annexed Motion JUDG Calendar [FILED : BRONX BRONX COUNTY OFILED: BRONX COUNTY COUNTY CLERK CLERK 01/30/2019 08/21/2018 11:28 AM CLERK 08 FILED: 08/22/2018 08:32 02:02 AM PM /21/2-0.18 11: 28 ANQ NYSCEF DOC. DOC . NO. NO . 342 33 1 NYSCEF DOC. 331 NO. NYSCEF 332 INDEX INDEX NO. NO . 24973/2015E 24973/2015 E INDEX NO. 24973/2015E RECEIVED 08/22/2018 RECEIVED RECE I VED NYSCEF: NYSC EF: 01/30/2019 08/21/2018 NYSCEF: 08/21/2018 SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK YORK SUPREME 13 COUNTY OF BRONX: BRONX: Part Part 13 OF COUNTY TEJEDA EFRAIN GALICIA, FLORE CIA TEJEDA PEREZ, FLORENCIA EFRAIN PEREZ, GALICIA, & GONZALO CRUZ CRUZ FRANCO, FRANCO, JOHNNY JOHNNY GARCIA GARCIA & GONZALO MIGUEL VILLAOBOS VILLAOBOS MIGUEL 24973-2015E Index: 24973-2015E Index: Plaintiffs, Plaintiffs, Hon. Fernando Fernando Tapia, JS C. J.S.C. Tapia, Hon. - against -- - against J. DONALD J. TRUMP, TRUMP, DONALD DONALD J.J. TRUMP TRUMP FOR FOR DONALD TRUMP ORGANIZATION PRESIDENT, INC. , THE TRUMP ORGANIZA TIO LLC, LLC, THE PRESIDENT, INC., KEITH SCHILLER, GARY UHER, UHER, EDWARD EDWARD JON JON KEITH GARY SCHILLER, JOHN DOES DECK, JR., AND JOHN DOES 3-4, AND 3-4, DECK, JR., Defendants. DECISION DECISION Defendants. and battery, Plaintiffs bring this this action action against against defendants defendants alleging alleging assault assault and battery, conversion and Plaintiffs and conversion bring destruction of of property, property, negligent negligent hiring hiring and and supervision. supervision. Defendants Defendants Donald Donald J.J. Trump Trump (Trump), (Trump), destruction The Trump Organization, Organization, LLC LLC (Trump (Trump Organization), Organization), and and Keith Keith Schiller move for an an order order Schiller move for The Trump of the the defendants. defendants. The The remaining remaining under CPLR CPLR 3212 3212 granting granting summary summary judgment judgment inin favor favor of under Donald defendants, Donald J.J. Trump Trump for for President, President, Inc Inc (Trump (Trump Campaign), Campaign), Gary Gary Uher, Uher, Edward Edward Jon Jon defendants, motion Jr in a move same relief. Deck, Jr in a similar similar motion move for for the the same relief. This This decision decision will will address address both both motions. motions. Deck, L I. Assault Assault and and Battery Battery argue Defendants Defendants argue that that plaintiff plaintiff Perez Perez assault assault and and battery battery claim claim must must fail fail as as she she was was unsuccessful inin coming coming forward forward with with evidentiary evidentiary proof proof sufficient sufficient to to demonstrate demonstrate who who precisely precisely unsuccessful "short" or committed an assault committed an assault or battery battery against against her. her. Perez Perez testified testified at at her her deposition deposition that that aa "short" and and "dark-skin" Trump tower tower and and identified identified himself himself as as working working for for "dark-skin" security security guard guard that that came came out out ofof Trump touched defendant defendant Trump touched her her without without consent. consent. Trump 11 Perez Perez further further testified testified that that the the security guard guard security 11 Perez tr at Perez tr at 35-39. 35-39. 2 11 23 of 8817 53 2 of of [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 11:28 AM NYSCEF DOC. 332 342 DOC . NO. NO. 331 NYSCEF 331 DOC. NO. INDEX INDEX NO. NO.. 24973/2015E INDEX 2 4 97 3 / 2 0 15E NO RECEIVED 08/22/2018 RECEI VED NYSCEF: NYSC EF: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 place." 2 2 Defendant "leave the who her asked asked toto her her toto remove remove her her costume costume and and "leave the place." Defendant Deck Deck her touched who touched costume and Klan testified that that he he approached approached aa female female protestor protestor wearing wearing aa Ku Ku Klux Klux Klan costume and told told her her testified environment." The issue "you guys need toto move move because because this this isis not not -- it's it's not not aa safe safe environment." 33 The issue ofof whether whether guys need "you one of or possibly of the the John John defendant Deck was, was, inin fact, fact, the the same same individual individual as as alleged alleged by by Perez Perez or one defendant Deck possibly determine. In Doe plaintiff argues, argues, would would be be aa question question ofof fact fact 44 for for the the jury jury toto determine. In either either plaintiff Doe defendants, defendants, contact with instance, is found found that that Deck Deck or or defendant defendant John John Doe Doe had, had, inin fact, fact, made made contact with Perez, Perez, ifif itit is instance, defendants Trump, Trump Trump Organization, Organization, and and Trump Trump Campaign Campaign would would be be liable liable under under the the defendants Trump, an employer employer of respondeat respondeat superior. superior. Under Under the the doctrine doctrine ofof respondeat respondeat superior, superior, an may be be doctrine doctrine of may held responsible for for aa tort tort committed committed by by his his or or her her employee employee within within the the scope scope ofof responsible held vicariously vicariously 5 5 Defendants entitlement of entitlement to employment. Defendants have have failed failed toto meet meet their their prima prima facie facie burden burden of to employment. judgment on on Perez's Perez's claim claim as as aa matter matter ofof law. law. judgment claim on Defendants also also seek seek toto dismiss dismiss plaintiff plaintiff Galicia Galicia assault assault and and battery battery claim on the the grounds grounds Defendants "The of protecting one's of one's that was acting acting inin self-defense self-defense when when he he assaulted assaulted him. him. "The necessity Schiller was that Schiller necessity protecting as a justification self attack isis aa defense defense against against liability liability for for assault assault and and battery battery as justification for for acts acts attack self against against altercation between which otherwise would would constitute constitute the the tort." tort." 66 The The facts facts surrounding surrounding the the altercation between which otherwise defendant on Schiller Schiller and Galicia Galicia are are disputed. disputed. Plaintiff Plaintiff asserts asserts that that the the assault assault by by defendant Schiller on Schiller and Schiller made a sign from Galicia took place place when when Schiller made physical physical contact contact with with Galicia Galicia by by tearing tearing away a sign from Galicia took away Schiller had sign that Mr. s hand. hand. 77 Defendants Defendants contrarily contrarily assert assert that that Schiller had removed removed a sign that was was Mr. Galicia' Galicia's impeding traffic and and Galicia, Galicia, inin fact, fact, was was the the one one who who initiated initiated the the contact. contact. 88 After After this this initial initial traffic impeding 22 Id 11-12. /d at at 38, lines 11-12. 38, lines 3 3 Deck tr at Deck tr at 96-97. 96-97 . * Winegrad 4 York Univ. Univ. Med. NY2d 851, for summary Winegrad v. New New York Med. Center, 64 NY2d 851, 852 852 (1985) (1985) (On (On aa motion motion for judgment, the the Center, 64 judgment, summary proponent matter of of law, "must proponent "must make make aa prima prima facie facie showing showing of of entitlement entitlement to to judgraêñt judgment as aa matter tendering sufficient sufficient law, têñdaring evidence to eliminate eliminate any any material material issues issues of of fact fact from from the the case"). case") . evidence to 5 5 Dept. 2016). 139 AD3d Jones v Hiro Cocktail Lounge, Jones Hiro Cocktail Lounge, 139 AD3d 608 608 (1st (1st Dept. 2016). 66 6A 11. 6A NY Jur Jur Assault Assault --- Civil Civil Aspects Aspects§§ 11. 7 7 Galicia Galicia tr tr at at 79-81. 79-81. 8 Schiller tr at 8 132-133. Schiller tr at 105-106, 132-133. 105-106, 124-125, 124-125, 2 24 12 17 3 o f 53 8 3 of 8 INDEX INDEX NO. NO. 24973/2015E INDEX 24973/2015E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 2 8 11: AM NYSCEF DOC. 332 342 DOC . NO. NO. 331 NYSCEF 331 DOC. NO. RECEIVED NYSCEF: 08/22/2018 NYSCEF: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 Galacia off acted contact by Galicia, defendants defendants assert, assert, Schiller acted inin self-defense self-defense inin repelling Galacia off his his Schiller contact repelling by Galicia, 9 9 Questions Questions ofof facts facts abound; abound; defendants defendants have have failed failed toto eliminate eliminate material material issues issues ofof facts facts person. person. from this case. case. this from for damages Furthermore, Galicia Galicia inin action action for for aa tortious tortious battery battery can can recover recover damages for pain pain and and Furthermore, alone. suffering. Those damages damages can can be be found found inin the the testimony testimony ofof the the plaintiff plaintiff alone. suffering. Those Lincoln Hospital Hospital where where he he complained complained ofof pain pain and and anxiety. anxiety. went toto Lincoln went 10 10 Mr. Mr. Galicia Galicia 1I 11 Plaintiff subjective Plaintiffss subjective or she she is testimony ofof pain pain may may be be sufficient sufficient toto establish establish an an injury injury for for which which he he or is entitled entitled toto some some testimony are denied. denied. claims judgment compensation. Summary judgment on on Galicia's Galicia's assault assault and and battery battery claims are compensation. Summary II. II. Conversion & & Destruction Destruction of of Property Property Conversion In this claim, claim, itit isis alleged alleged that that defendants defendants took took possession possession ofof plaintiffs' plaintiffs' banners banners without without their their In this in sidewalk consent by forcibly forcibly taking taking from from them them while while they they stood stood on on the the public public sidewalk in front front ofof Trump Trump consent by Tower. Tower. 12 12 legal or "To establish aa claim claim for for conversion, conversion, the the plaintiff plaintiff must must show show legal ownership or an an establish "To ownership and must show that superior immediate superior right right ofof possession possession toto aa specific specific identifiable identifiable thing thing and must show that the the immediate alteration of of its its defendant exercised an an unauthorized unauthorized dominion dominion over over the the thing thing inin question, question, toto the the alteration exercised defendant the plaintiff plaintiffss rights." rights. " condition or the the exclusion exclusion ofof the or condition 13 13 Defendants Defendants assert assert that that plaintiff plaintiff has has failed failed toto their to establish the signs signs were were altered altered or or that that the the plaintiffs plaintiffs were were deprived deprived ofof their ability to use use them. them. establish the ability Schiller tore one of of the signs and To the the contrary, contrary, plaintiffs plaintiffs posit posit that that defendant defendant Schiller tore one the signs and then then took took To 14 Plaintiffs evidence of damage of their their banner banner for for six six weeks. weeks. 14 Plaintiffs by by submitting submitting evidence of damage toto one one ofof possession possession of the exclusion of exclusion Schiller and the signs by Schiller and the the unlawful unlawful confiscation confiscation ofof the the banner banner toto the of the the signs by the 9 Id. ld. 9 1° 10 See See Misc. 937, 130 N.Y.S.2d 127 AD2d v. Hegarty, AD2d 822 822 (2nd (2nd Dept Dept 1987). 1987). Mccombs Hegarty, 205 205 Misc. 937, 130 N.Y.S.2d 547; 547; Levine Levine v Abergel, Abergel, 127 McCombs v. tr tr at at 97-106. 97-106. 12 Galicia tr at 72-81. 12 Galicia tr at 72-81. 13A 13 Misc.3d 1136[A 1136[A (N.Y.Sup.Ct. Corp. v. GC GC Metrics, Independence Discount A&G Research, Inv. Inv. v. Metrics, Inc.,19 Inc., 19 Misc.3d (N.Y.Sup.Ct. 2008) 2008) citing Discount Corp. G Research, citing Independence Dept.1975). (2d 47 A.D.2d 756 v. Bressner, 47 A.D.2d 756 (2d Dept.1975). Bressner, 14 Galicia tr 81. 14 Galicia tr 81. 11 Galicia 11 Galicia 3 4 of 25 13 17 53 8 4 of 8 INDEX INDE X NO. NO . 24973/2015E 24973/20 INDEX 2 4973/2015E 15E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 28 11: AM) NYSCEF DOC. 332 342 DOC . NO. NO. 331 NYSCEF 331 DOC. NO. RECEIVED NYSCEF: 08/22/2018 NYSCEF: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 plaintiffs rights have have met met their their prima prima facie facie burden. burden. The The assertion assertion that that plaintiffs plaintiffs must must prove prove their their rights plaintiff's without merit. is without intended use ofof the the signs signs while while the the signs signs were were inin defendants' defendants' possession possession is merit. intended use judgment on the judgment on the Defendants fail toto provide provide any any legal legal precedent precedent for for this this notion. notion. Swnmary Defendants fail Summary conversion and destruction destruction claim claim isis denied. denied. conversion and III. HI. & Supervision Supenrision Negligent Hiring, Hiring, Retention Retention & Negligent met or Mr. The court court next next examines examines whether whether defendants defendants Trump Trump Organization Organization or Mr. Trump met their their Trump The defendants burden for summary summary judgment judgment on on the the claim claim that that they they cannot cannot be be found found liable liable for for defendants burden for Schiller, Deck and and Uher's Uher's intentional intentional tort tort under under the the theory theory ofof negligent negligent hiring, hiring, retention, retention, and and Deck Schiller, York supervision. Defendants argue argue that that this this claim claim must must be be dismissed, dismissed, citing citing Karoon Karoon vv New New York City Defendants supervision. City Transit Authority, Transit Authority, ¹³ 15 where of his "Generally, where an an employee employee isis acting acting within within the the scope of his scope "Generally, liable for or her her employment, employment, thereby thereby rendering rendering the the employer employer liable for or caused under any caused by by the the employee's employee's negligence negligence under aa damages any damages no claim proceed against of respondeat of respondeat superior, no claim may proceed against theory superior, may theory is because because the employer employer for for negligent negligent hiring hiring or or retention. retention. This This is the the employee employee was was not not negligent, negligent, there there isis no no basis basis for for ifif the on and if the employee was the if the employee was imposing liability on the employer, and employer, liability imposing of negligent, the the employer employer must must pay pay the the j=dgmast judgment regardless regardless of negligent, of the or retention or the reasonableness the of the reasonableness of the hiring hiring or retention or the adequacy of adequacy training." the the training." Deck and Uher Defendants argue argue since since the the acts acts were were within within the the scope scope ofof Schiller, Deck and Uher Schiller, Defendants the employments, the plaintiffs plaintiffs cannot cannot maintain maintain aa claim claim against against their their employers employers for for negligent negligent hiring hiring employments, or supervision. supervision. or They additionally additionally argue argue that that plaintiffs' plaintiffs' claim claim for for negligent negligent hiring, hiring, retention, retention, and and They supervision fails evidence that supervision fails as as aa matter matter ofof law law since since the the record record isis devoid devoid ofof any any evidence that they they knew knew or or have should should have known known 16 16 of Deck or assaultive assaultive of Schiller, Deck and and Uher's Uher's propensity propensity for for violence violence or Schiller, 13 15 241 241 1997). Dept 1997). AD2d 323 AD2d 323 (1st (1st Dept 129-130 (1st Dept 2004) C. 11 AD3d have known known of of the C. Povich, Pavich, 11 AD3d 120, (1st Dept 2004) (êmp Gyer (employer knew knew or or should should have the employee's employee's 120, 129-130 for "propensity for the the sort sort of of conduct conduct that that caused caused the the injury"). injury"). "propensity 16 16 Sheila Sheila 4 14 26 17 53 5 of 5 of 8 INDEX INDEX NO. NO. 24973/2015E INDEX 24973/2015E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 28 11: AM NYSCEF DOC. 332 342 DOC . NO. NO. 331 NYSCEF 331 DOC. NO. RECEIVED NYSCEF: 08/22/2018 NYSCEF : 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 behavior. Plaintiffs in their opposition failed toto present present any any theory theory as as toto how how this this alleged alleged failed opposition Plaintiffs in their behavior. of these employees' employees' duties duties and and furthermore furthermore provided provided no no intentional tort was outside the the scope scope of these outside tort was intentional that bad acts actions that would would indicate indicate aa propensity propensity for for the the alleged alleged proof of actions or disciplinary prior bad acts or of any disciplinary any prior proof of for negligent hiring, hiring, retention, retention, and and supervision supervision isis tortious conduct. Plaintiffs cause action for negligent cause of action Plaintiffs conduct. tortious dismissed. dismissed. IV. IV. Respondeat Superior Superior Respondeat superior The of respondeat superior generally imposes imposes liability liability for for acts acts of of an an employee employee doctrine of respondeat The doctrine generally within upon the the employee was acting within the the scope scope of of his his employment. employment. employee was ifif the employer the employer upon acting 17 17 of scope Determination of acts within the the scope of employment employment for for purposes purposes of of vicarious vicarious acts are are within whether Determination of whether advance the of the the employer employer inin some some way way liability, require an inquiry into into whether whether they they advance the interests interests of an inquiry require liability, employee. and not done solely to benefit the the employee. to benefit done and are are not solely 18 18 Defendant Trump moves to dismiss all remaining claims claims against against him him as as he he was was not not to dismiss all remaining moves Defendant Trump dominion exercised altercation and never never involved in the the altercation and exercised dominion or or control control over over the the seized seized banner. banner. involved in Organization and the Similarly, Trump, Trump Campaign, and the Trump Organization move move toto dismiss dismiss because because Campaign, Similarly, Trump, Trump Trump or agents defendants Uher and Deck were were not not their their employees employees or agents and and therefore therefore vicarious vicarious liability liability Uher and Deck defendants Uher argue that defendants to apply. Specifically, they argue that defendants Uher and and Deck Deck were were never never employed employed by by fails apply. fails to Specifically, they of XMark, of employees employees instead them, and were, instead of of XMark, aa third-party, third-party, independent independent contractor. contractor. and were, them, of respondeat of the doctrine In this analysis of the doctrine of respondeat superior, superior, itit must must be be noted noted the the apparent apparent In this analysis defendants between association between defendants Trump, Trump Organization, and and Trump Trump Campaign, Campaign, or or association Organization, Trump, Trump his and his his campaign. the synonymously the man, his company, and campaign. Defendants Defendants motion motion toto disassociate disassociate the the company, man, synonymously and Deck Deck from his actions of Uher, and from Trump, his namesake namesake company, company, and and campaign campaign as as aa of Schiller, actions Trump, Uher, Schiller, unavailing. law is To the plaintiffs matter of To the contrary, plaintiffs raise raise ample ample issues issues of of fact fact that that contrary contrary toto matter of law is unavailing. contrary, 17 (1979). New York, NY2d 1032, 1033 (1979). Cornell v State 46 NY2d Cornell State of 1032, 1033 York, 46 of New 97 NY2d 247 (2002). Cabrini Medical Medical Center, v Cabrini 97 NY2d 247 {2002). Center, ¹S N.X. 18 N.X. 5 of 15 276 of 17 53 8 [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM FILED BRONX COUNTY CLERK 08/21/2018 11:28 AM NYSCEF DOC. 332 342 DOC . NO. NO. 331 NYSCEF 331 DOC. NO. INDEX INDEX NO. NO. 24973/2015E INDEX 24973/2015E NO. RECEIVED NYSCEF: 08/22/2018 NYSC EF: 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 defendants' control over moving defendants ' claims, claims, tends tends toto exhibit exhibit Trump's Trump's dominion dominion and and control over Schiller, Uher, Schiller, Uher, moving and Deck. and Deck. type of conduct specific Plaintiffs point point out out that that Trump Trump authorized authorized and and condoned condoned the the specific type of conduct ofof Plaintiffs defendants Schiller, Uher, and and Deck. Deck. defendants Uher, Schiller, 19 19 evidence that Furthermore, plaintiffs plaintiffs proffer proffer evidence that indicates indicates Furthermore, Trump's knowledge ofof the the altercation altercation and and subsequent subsequent seizure seizure ofof the the banner. banner. knowledge Trump's 20 20 The employment The employment issue disputed relationship between between Uher Uher and and Deck Deck and and Trump Trump Campaign Campaign isis also also a disputed issue ofof fact. fact. relationship 21 21 Finally, the plaintiffs plaintiffs presented presented evidence evidence that that illustrates illustrates the the close close relationship relationship between between Trump Trump the Finally, actions.22 22 The fluidity Schiller's and indicating Trump's Trump's behest behest guided guided Schiller's actions. The fluidity ofof Schiller, Uher, and Schiller, Schiller, Uher, Schiller, indicating Organization present and Deck ' s employment employment between between Trump, Trump, Trump Trump Campaign Campaign and and Trump Trump Organization present and Deck's of facts that that need need toto be be addressed addressed atat trial. trial. issues of facts issues V. V. Punitive Damages Damages Punitive plaintiffs' The branch branch ofof Defendants' Defendants' motion motion seeking seeking summary summary judgment judgment striking plaintiffs ' striking The requests for punitive punitive damages damages isis denied. denied. The The award award ofof punitive punitive damages damages under under the the circumstances circumstances for requests 19 Dictor 19 rally: : "{T]he Exhibit 28 "[T]he microphone Aff, Exhibit 28 (Trump (Trump speaking speaking to to reporters reporters regarding regarding protestors protestors at at aa campaign campaign rally microphone Dictor Aff, which liked him -- they're were him just took took the the whole place over. over. And And the the audience, audience, which liked him, him, I mean, mean, they they were they're saying, saying, -- they whole place they just will never with me. That will I'll do do the never happen happen with me. I don't don't know know if the fighting fighting 'What's going on? on? How How could could this this happen? happen? That 'What's going if I'll Dictor Aff, Exhibit 27 protestors at or ifif other myself, other people people will"); Aff, Exhibit 27 (Trump (Trump speaking speaking to to reporters reporters regarding protestors at aa will"); Dictor regarding myself, or he was screaming. I had "The man was roughed was so was screaming. man you you say say was roughed up, up, he he was so obnoxious obnoxious and and so so loud, had campaign rally : "The campaign rally: loud, he himself. I don't 10,000 people. the room room yesterday. yesterday. 10,000 people. And And this this guy guy started started screaming screaming by don't know, know, rough rough 10,000 people in the 10,000 people by himself was absolutely what he up, have been been -- maybe maybe he he should should have have been been roughed roughed up up because because itit was disgusting what he he should should have absolutely up, he disgusting rally: : "Throw "Throw him Dictor Aff, Exhibit 27 was Aff, Exhibit 27 (Trump (Trump responding responding to to protestors protestors at at aa campaign campaign rally him out out into into the the was doing") doing"); ; Dictor Confiscate their coats!"). You know. know. Don't Don ' t give give them them their their coat. coat. No No coats. coats. No No coats! coats! Confiscate their coots!"). cold! cold! You 20 Dictor 20 December specific protest, Magazine Exhibit 23 this Dictor Aff, Aff, Exhibit 23 (In (In aa December 9, 2015 2015 interview interview with with TIME TIME Magazine regarding this specific protest, 9, regarding With records, with records. records. The Trump: were trouble The planters planters we have, trouble makers. makers. With records, by by the the way, we have, defendant Trump : "They defendant way, with "They were We have have these these very they're expensive plantings. plantings. It's It's called called the the Beautification Beautification of of Fifth Fifth Avenue. Avenue. We expensive plants. plants. they're very very expensive very expensive They're sitting there waiting, And guys are are putting putting their their cigarettes cigarettes out out on on the the thing, thing, they're they're sitting sitting in in them. them. They're sitting there And these these guys waiting, were dressed You know know that? You know when of the the plants. plants. They dressed as as Ku Ku Klux Klux Klan. Klan . You that? You know when holding the signs, signs, sitting sitting on on top top of They were holding the Would you were dressed was dressed they first came came out out they they were dressed as as Ku Klux Klux Klan, Klan, okay. okay. Would you think think that that if was dressed as as Ku if somebody somebody they first were dressed Klan-you were sitting Klux know, they they were dressed as as Ku Ku Klux Klux Klan. Klan. And And they they were were sitting sitting in the the planters, they were sitting on on Klux Klan-you planters, know, they we had the plants. plants. They did aa lot lot of of damage, damage, we had to to change change the the plants"). plants") . top of the They did top of 2¹ 21 Uher Deck tr at 27-32 at 39 39 (Uher (Uher testifying testifying that that he he did did not not believe believe he he was was ever ever paid paid by by XMark); XMark); Deck tr at 27-32 (Deck (Deck Uher tr tr at he was was hired hired to to preform preform security security services services for for the the Trump Trump Organization). Organization). testifying he testifying 22 22 Schiller tr See tr 52-54 52-54 (Schiller (Schiller unable unable to to clearly clearly identify identify his his employer). employer). See Schiller 6 7 of 28 16 53 17 8 7 of 8 INDEX INDEX NO. NO . 24973/2015E INDEX 24973/2015E NO. [FILED: 08/21/2018 11:28 AM) FILED:: BRONX COUNTY CLERK 08/22/2018 01/30/2019 08:32 02:02 AM PM IFILED BRONX COUNTY CLERK 08/21/2018 28 11: AM NYSCEF DOC. 332 DOC . NO. NO 331 NYSCEF 331 DOC. NO. . 342 RECEIVED NYSCEF: 08/22/2018 NYSCEF : 01/30/2019 08/2 1 /20 1 8 RECEIVED NYSCEF: 08/21/2018 of facts. facts. warranting the allowance allowance ofof same same rests rests inin the the discretion discretion ofof the the trier trier of the warranting 23 23 It iS It is for for the the trier trier ofof must which facts determine whether whether defendants defendants conduct conduct justifies justifies such such an an award, award, which must rise rise toto the the to determine facts to motive." 24 Accordingly, itit is level of or malice" malice" or or "evil motive." 24 is "evil or of "spite "spite level Accordingly, ORDERED ORDERED dismissed as he that plaintiff plaintiff Gonzalo Gonzalo Cruz Cruz Franco's Franco's claims claims are are dismissed as he has has that withdrawn his claims claims inin this this action; action; and and itit isis further further his withdrawn ORDERED ORDERED that plaintiffs plaintiffs cause cause ofof action action for for negligent negligent hiring, hiring, retention, retention, and and supervision supervision that and are and itit isis further further are dismissed; dismissed; 0 RD ERED ORDERED denied. that all all other other reliefs reliefs sought sought by by defendants defendants are are denied. that the the court. court. This constitutes the decision decision ofof the constitutes This Dated: August 20, 20, 2018 2018 Dated: August Hon. n. Fernando H rn nd Bronx, NY NY Bronx, ²³ Le Mistral, Inc. 23 Columbia Inc. v Columbia Broadcasting System, System, 61 61 AD2d AD2d 491, 491, 495, 495, app. Mistral, Broadcasting apia NY2d 940. 940. dismd 46 app. dismd 46 NY2d 24 24 Town of Marinaccio v Town of Clarence, 20 NY NY 3d 3d 506 506 (2013). (2013). Marinaccio Clarence, 20 7 of 17 29 17 53 8 of 8 J.S.C. FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 EXHIBIT 2 30 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 31 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 32 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 33 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 EXHIBIT 3 34 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 35 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 36 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 37 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 38 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 39 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 40 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 EXHIBIT 4 41 of 53 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) 50 Misc.3d 1220(A) Unreported Disposition (The decision is referenced in the New York Supplement.) Civil Court, City of New York, New York County. TURIN HOUSING DEVELOPMENT FUND COMPANY, INC., Petitioner/Landlord, v. Alfredo SUAREZ, et al., Respondents/Tenants. No. 82366/2012. Feb. 18, 2016. Opinion JACK STOLLER, J. *1 Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion. Notice of Motion (Seq.# 10) and Supplemental Affirmation Annexed 18 Notice of Motion (Seq.# 11) and Supplemental Affirmation Annexed 19, 20 Affirmation In Opposition (Seq.# 11) of Petitioner 21 Affirmation In Opposition (Seq.# 11) of Petitioner's counsel 22 Notice of Motion (Seq.# 12) and Supplemental Affirmation Annexed 23, 24 Notice of Motion (Seq.# 13) and Supplemental Affirmation and Affidavit Annexed 25, 26, 27 Affirmation In Support (Seq.# 13) of Petitioner's former agent 28 Affirmation In Support (Seq.# 13) of Petitioner's counsel 29 Notice of Cross–Motion (Seq.# 14) and Supplemental Affirmation Annexed 30 Papers Numbered Affirmation In Opposition (Seq.# 14) of Petitioner 31 Notice of Motion (Seq.No.5) and Supplemental Affidavit and Affirmation Annexed.... 1, 2, 3 Reply Affirmation (Seq.# 14) to Petitioner's Opposition 32 Affirmation In Opposition (Seq.# 5) 4 Affirmation In Opposition (Seq.# 14) of Petitioner's counsel 33 Order to Show Cause (Seq.# 6) and Supplemental Affirmation Annexed 5, 6 Affirmation In Opposition (Seq.# 6) of Petitioner 7 Affirmation In Opposition (Seq.# 6) of Petitioner's counsel 8 Reply Affirmation (Seq.# 6) 9 Notice of Cross–Motion (Seq.# 7) and Supplemental Affirmation Annexed 10, 11 Notice of Motion (Seq.# 8) and Supplemental Affirmation and Affidavit Annexed 12, 13, 14 Affidavit in Opposition (Seq.# 8) 15 Order To Show Cause (Seq.# 9) and Supplemental Affirmation Annexed 16, 17 Reply Affirmation (Seq.# 14) to Petitioner's counsel's Opposition 34 Upon the foregoing cited papers, the Decision and Order on this Motion are as follows: Turin Housing Development Fund Company, the petitioner in this proceeding (“Petitioner”), commenced this summary proceeding against Alfred Sanchez (“Respondent's late husband”), seeking a money judgment and possession of 609 Columbus Avenue, Apt. 6L, New York, New York (“the subject premises”) on the basis of nonpayment of maintenance. Petitioner obtained a judgment based upon a failure to answer. A warrant of eviction issued and was executed. Cruz Sanchez (“Respondent”) moved to be restored to possession. The parties entered into a stipulation dated July 9, 2013 (“the Stipulation”) vacating the judgment and warrant and restoring Respondent to possession. The © 2019 Thomson Reuters. No claim to original U.S. Government Works. 42 of 53 1 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) Court then entered into an order dated August 1, 2013 (“the Order”) finding that Petitioner's conduct in this proceeding warranted a hearing to determine if sanctions should be imposed and, if so, how much. The proceeding was then marked off calendar. Now various movants move for various kinds of relief. The Court consolidates these motions for resolution herein. 1 As noted above, the Stipulation vacated the judgment and warrant, restored Respondent to possession of the subject premises, and adjourned so much of the motion as sought a judgment sounding in attorneys' fees to July 31, 2013. The Court reserved decision that day and entered into the Order on the following day. *2 The Order found that the subject premises is located in a residential cooperative building subject to a subsidy pursuant to 12 U.S.C. § 1715z–1, known colloquially as “Section 236”; that Respondent's late husband was a proprietary lessee of the subject premises; and that Respondent's late husband died in September of 2007. The record shows that the rent demand pursuant to RPAPL § 711(2) and the notice of petition and petition, dated more than four years after Respondent's late husband died, only named Respondent's late husband and no other party. The record also shows that Petitioner only purported to serve Respondent's late husband and no other party with the rent demand and the petition, again years after Respondent's late husband died. The Order found that the then-managing agent for Petitioner (“the managing agent”) entered into an affidavit pursuant to 50 U.S.C. § 3931 swearing that she had spoken with Respondent's late husband to investigate whether he was in the military on a date after he had, in fact, died; that the managing agent admitted that she executed the affidavit without reading it and that that was her standard practice; that the managing agent swore in another affidavit in support of a default judgment that she did not know of any reason why Respondent's late husband would not be able to answer the petition even though Petitioner's records indicated that, had Respondent's late husband been alive at that time, he would have been ninety years old; and that Petitioner had written knowledge of Respondent's tenancy at the subject premises—which extended back to 1979, thirty-three years before the commencement of this proceeding—and still proceeded to evict her without ever naming or serving her. The Order found that Petitioner's eviction of Respondent “is clearly an action without any merit in law.” The Order further found that Petitioner was made aware of Respondent's unlawful eviction claim in May of 2013, but that Petitioner did not restore Respondent to possession of the subject premises until two months later, after she had retained counsel. The Court noted that Petitioner's counsel signed the petition pursuant to 22 N.Y.C.R.R. § 130–1.1. The Court granted Respondent's motion for sanctions “to the extent of setting the matter down for a hearing to provide Petitioner, its agents and counsel with a reasonable opportunity to be heard prior to a final determination on whether Petitioner and its attorneys engaged in frivolous conduct ..., whether cost and/or sanctions ... should be imposed on Petitioner and/or [Petitioner's] attorney[ ], and if so the appropriate amount of said costs and/ or sanctions.” The Court made this determination, it noted, despite Petitioner's assertion in opposition to Respondent's motion that Respondent committed some type of fraud by not living in the subject premises and evading HUD requirements for annual re-certification. The file shows that Respondent served Petitioner with a copy of the order with notice of entry pursuant to CPLR § 5513(a) on August 6, 2013. *3 No party objects to a restoration of this matter to the Court's calendar. Respondent sued Petitioner in a plenary action in Supreme Court, and there had been some question as to removal of this proceeding as such, but the Court resolved this question in the negative. The Court therefore grants Respondent's motion to restore this proceeding to the Court's calendar herein. 2 The motions of Petitioner and Petitioner's counsel 3 to vacate the Stipulation and the Order raise a threshold issue. Accordingly, the Court addresses the motions to vacate the Stipulation and Order before reaching the other motions. Petitioner and Petitioner's counsel argue that Respondent has not been residing in the subject premises as her primary residence, thus perpetuating a fraud upon Petitioner and the Court and warranting vacatur of the judgment and warrant. As evidence of Respondent's failure to primarily reside in the subject premises, Petitioner and Petitioner's counsel show unrebutted documentation of another summary proceeding that another owner of subsidized housing (“the other © 2019 Thomson Reuters. No claim to original U.S. Government Works. 43 of 53 2 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) landlord”) commenced against Respondent in a different part of the New York County Housing Court. An order of that Court part found that Respondent lives at this other address (“the other apartment”). Petitioner and Petitioner's counsel argue that Respondent's failure to maintain the subject premises as her primary residence renders ineffective her claim that she was harmed by an illegal eviction, and furthermore that Respondent should not have been restored to the subject premises in the first instance. See 24 C.F.R. § 236.710(a) (if an occupant of Section 236 housing is a shareholder in a cooperative, the benefits therein are only available to cooperative members who occupy the dwelling units) . 4 Even though the Order was not obtained on default, the Court may consider a motion to vacate a judgment based upon newly-discovered evidence and fraud, both of which Petitioner and Petitioner's counsel allege here. See, e.g., Prote Contr. Co. v. Board of Educ., 230 AD3d 32 (1st Dept.1997). Be that as it may, even assuming arguendo that Respondent made a misrepresentation to Petitioner and to the Court, not every misrepresentation or omission rises to the level of fraud. Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 350 (1999). Compare Held v. Kaufman, 91 N.Y.2d 425, 431 (1998) (a misrepresentation must be material in order for a party to have a cause of action sounding in fraud), Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (1999) (an act of deception, entirely independent or separate from any injury, is not sufficient to state a cause of action under a theory of fraudulent concealment). Assuming arguendo that Respondent maintains her primary residence somewhere other than the subject premises, and further assuming arguendo that Respondent misrepresented her primary residence in the prior motion practice, Petitioner and Petitioner's counsel lose sight of the fact that this is a proceeding sounding in nonpayment of maintenance. Neither Petitioner not Petitioner's counsel allege that Respondent owed arrears in maintenance at the time she was evicted. To the extent that a vacatur of the Order and the Stipulation would reinstate the judgment and warrant against Respondent, it would do so with complete disregard of the merits of this proceeding. *4 Nor do Petitioner or Petitioner's counsel raise any issue that Respondent's late husband died long before commencement of this proceeding in his name. Even if, assuming arguendo that Respondent was not living at the subject premises, and even if, assuming arguendo that whomever was responsible for paying maintenance for the subject premises owed arrears, RPAPL § 711(2) contains specific requirements for maintaining a nonpayment summary proceeding against a deceased tenant, which Petitioner did not comply with, notably joinder of a survivor of Respondent's late husband. Again, to the extent that Petitioner and Petitioner's counsel seek to reinstate the judgment and warrant in this nonpayment proceeding via a vacatur of the Order and the Stipulation, they fail to show that any purported misrepresentation or fraud had any bearing on Petitioner's ostensible cause of action against Respondent's late husband for nonpayment of maintenance. Accordingly, assuming arguendo that Respondent engaged in fraud or misrepresentation about her primary residence, such misrepresentation was not material to a nonpayment proceeding. Given that the Order determined that Petitioner and Petitioner's counsel could be subject to sanctions, it seems that the true gravamen of their motions is to vacate that part of the Order exposing them to sanctions. Petitioner and Petitioner's counsel argue that Respondent could not have suffered the damages she alleges if she was not actually rendered homeless by the execution of a warrant of eviction procured, in part, by an undeniably false affidavit of the managing agent. Petitioner's and Petitioner's counsel's argument could theoretically bear some relevance to, say, a cause of action of Respondent sounding in damages pursuant to RPAPL § 853. But the Order and the hearing the Order contemplates do not sound in such damages. Rather, the Order finds that a hearing is appropriate to determine sanctions against Petitioner and Petitioner's counsel. A purpose of sanctions is to advance the public interest, Tag 380, LLC v. Estate of Howard P. Ronson, 69 AD3d 471, 475 (1st Dept .2010), in part to prevent malicious litigation tactics. Levy v. Carol Mgmt. Corp., 260 A.D.2d 27, 34 (1st Dept.1999), Kernisan v. Taylor, 171 A.D.2d 869, 870 (2nd Dept.1991). Neither Petitioner nor Petitioner's counsel dispute that the managing agent committed an act of fraud on the Court by executing a false non-military affidavit nor that Petitioner should have commenced a summary eviction proceeding only against a party who had been dead for four years. Even assuming arguendo that the person evicted as a result of such actions was a fraudfeasor of the first order, the Court has an independent interest in discouraging such violations of law and Court procedures as Petitioner has engaged in. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 44 of 53 3 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) Petitioner argues that it terminated the employment of the managing agent who executed a false affidavit in support of the warrant of eviction, and that such termination satisfies the Court's policy concerns. However, not only is the point of the hearing the Court has already ordered to determine whether this is the case as a factual matter, but the Court's finding that the managing agent's execution of such affidavits without reading them was a standard procedure raises a question about how isolated her own actions, in fact, were. *5 Moreover, a failure of a tenant to occupy an apartment as a primary residence is a ground for eviction in many types of regulated housing. Landlords commencing such holdover proceedings predicated upon this ground must often satisfy specific requirements concerning predicate notices and pleading. See, e.g., 9 N.Y.C.R .R. § 2524.2(c)(2). If the nonprimary residence of a tenant constituted an excuse to evict him or her without naming or serving him or her in a nonpayment proceeding, which is essentially what Petitioner and Petitioner's counsel argue, landlords would have a ready-made avenue to avoid predicate notice requirements to evict such tenants. No discernible authority supports such a course of action. Accordingly, the Court denies the motions of both Petitioner and Petitioner's counsel's motions to vacate the Stipulation and the Order, without prejudice to Petitioner's and Petitioner's counsel's positions regarding Respondent's primary residence in the context of other litigation between these parties. 5 Similar reasoning informs the Court regarding the subpoenas duces tecum Respondent seeks to quash, served both on Respondent, the other landlord, and Respondent's nephew, among other people. Petitioner is explicit in the subpoenas it serves that the purpose of the subpoenas is to ascertain Respondent's primary residence. Respondent's residence, primary or not, at the subject premises or not, is emphatically no excuse to commit perjury in a non-military affidavit, and is similarly no excuse for the commencement of a summary proceeding without naming or serving a party known to a petitioner as a proprietary lessee and a member of the household. An application to quash a subpoena duces tecum should be granted where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. Anheuser–Busch, Inc. v. Abrams, 71 N.Y.2d 327, 331–332 (1988), People v. Marcus Garvey Nursing Home, Inc., 57 AD3d 201, 202 (1st Dept.2008), Ayubo v. Eastman Kodak Co., 158 A.D.2d 641, 642 (2nd Dept.1990). While this is a high hurdle to clear, Respondent clears it in this case. Respondent's residency at the subject premises has no tendency—utterly no tendency—to make it more or less likely that Petitioner should countenance the execution of false non-military affidavits. Nor does the primary residence of Respondent have any tendency to make it more or less likely that Petitioner should have commenced an eviction proceeding against her without naming or serving her. Damages that Respondent may or may not have suffered are not the issue. The Court has a separate interest in penalizing the conduct Petitioner engaged in independent of the conduct of Respondent. Be that as it may, Petitioner's entire motion to vacate the judgment pursuant to CPLR § 5015 is predicated upon the proposition that Petitioner did not know the extent of Respondent's nonprimary residence at the subject premises until after the Order. The Order otherwise held, and so it is law of the case, that Petitioner knew of Respondent's proprietary tenancy at the subject premises and her presence on the household composition of the subject premises. Assuming arguendo that Petitioner turned out to have been mistaken about Respondent's primary residency, Petitioner cannot travel back in time and retroactively justify a failure to name and serve her. Accordingly, as the subpoenas duces tecum Petitioner served on Respondent, the other landlord, and other parties seek production at the hearing of documentation of Respondent's primary residence, the Court grants Respondent's motion to quash all of the subpoenas duces tecum. *6 Petitioner also subpoenaed Respondent's counsel, seeking documentation that Respondent's counsel actually represents Respondent. In general, an attorney is presumed to have authority to represent his or her client. Carpenter v. New York Trust Co., 174 A.D. 378, 383 (1st Dept.1916), aff'd sub nom., Rock Island Butter Co. v. Rowland, 221 N.Y. 720 (1917), In re Estate of Bogom, 181 A.D.2d 989 (4th Dept.1992), Will of Locke, 21 A.D.2d 248, 252 (3rd Dept.), leave to appeal denied sub nom. In re Locke, 15 N.Y.2d 482 (1964), Silvaria v. Intrepid Museum Found., 2003 N.Y. Misc. LEXIS 2031 (S.Ct. N.Y. Co.2003). Accordingly, as loath as the Court is to encourage yet more motion practice on this matter, the proper means by which to challenge the authority of © 2019 Thomson Reuters. No claim to original U.S. Government Works. 45 of 53 4 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) a party's attorney is by motion practice prior to the trial (or hearing), Weinstock v. Long, 29 Misc.2d 795 (S.Ct. Westchester Co.1961), citing O.G. Orr. & Co. v. Fireman's Fund Ins. Co., 141 Misc. 330, 333 (S.Ct. Greene Co.1931), rev'd on other grounds, 235 A.D. 1 (3rd Dept.1932), not to spring it on a party at a hearing itself. Accordingly, the Court grants Respondent's motion to quash the subpoena duces tecum on Respondent's counsel. However, the right to issue a subpoena ad testificandum is absolute. Evercore Partners Inc. v. Lazard Freres & Co., LLC, 2011 N.Y. Misc. LEXIS 5243, 3–4 (S.Ct. N.Y. Co.2011), citing Hirshfield v. Craig, 239 N.Y. 98, 117 (1924). See Also Beach v. Shanley, 62 N.Y.2d 241, 248 (1984), New York State Com. on Government Integrity v. Congel, 156 A.D.2d 274, 280 (1st Dept.1989) (even an assertion of a privilege is not sufficient to quash a subpoena in advance of the witness' testimony). Accordingly, the Court denies so much of Respondent's motion as seeks to quash all of the subpoenas ad testificandum that Petitioner served, without prejudice to any evidentiary objections Respondent may have to any testimony any party adverse to Respondent seeks from any subpoenaed witness, and without prejudice to any offers of proof Respondent may request of the Court and other evidentiary rulings the hearing Court may render in its sound discretion. 6 Respondent moves for sanctions against Petitioner and Petitioner's counsel for service of the subpoenas duces tecum and for their CPLR § 5015 motion to vacate the judgment. Respondent does not dispute that she has been essentially harboring tenancies in two federallysubsidized apartments at the same time. Even though Respondent's conduct as such is not before the Court, and the Court does not now make any findings preclusive on the rights of any parties in future litigation, for the limited purposes of Respondent's instant sanctions motion, Respondent's occupancy of two federally-subsidized apartments deprives subsidized housing to people who need it and who may be waiting for it and exacerbates the very shortage of affordable housing that subsidized housing was designed to ameliorate in the first place. In light of such inequitable conduct by Respondent, the Court does not find that Petitioner's and Petitioner's counsel's motion to vacate the Stipulation and the Order, nor their service of the subpoenas the Court has quashed, were so out of line as to warrant a finding of frivolity sufficient to justify sanctions. Compare Pawar v. The Stumble Inn, 2012 N.Y. Misc. LEXIS 5056 (S.Ct. N.Y. Co.2012). Accordingly, the Court denies Respondent's motion for sanctions (aside from the sanctions already the subject of a hearing to be held pursuant to the Order). 7 *7 Respondent also moves to hold Petitioner in contempt for service of a subpoena during the pendency of a stay against the subpoena. The order that Respondent accuses Petitioner of disobeying, in effect during the pendency of a prior motion to quash, stated, “let the subpoena be stayed pending the hearing and determination of the motion.” After that, the motion was not determined, as the parties engaged in motion practice before Supreme Court over the issue of whether this proceeding would be removed and joined with that action. Given the history of the motion practice, the Court finds that a reasonable interpretation of the injunction “let the subpoena be stayed pending the hearing” operates to relieve the party subpoenaed from an obligation to comply with the subpoena. This interpretation would not render contemptuous service of another subpoena as Petitioner has done herein. As contempt is a drastic remedy which the Court shall not grant without a clear right to the relief, Benson Park Assoc. LLC v. Herman, 93 AD3d 609 (1st Dept.2012), Respondent must prove that Petitioner disobeyed an unequivocal mandate of the Court in order to prove contemptuous conduct. McCain v. Dinkins, 84 N.Y.2d 216, 226 (1994). Pursuant to this law, Petitioner's subpoenas would only be contemptuous if they violated an unequivocal mandate of the Court prohibiting Petitioner from issuing additional subpoenas. As the extant order of the Court is not so “unequivocal,” the Court denies Respondent's motion to hold Petitioner in contempt. 8 Prior to this matter being stayed for the parties to litigate the issue of whether Supreme Court should remove this proceeding, Petitioner moved to quash subpoenas served by Petitioner's counsel and Respondent. Now that the proceeding is being restored to this Court for a hearing, the Court addresses this motion. Petitioner's counsel subpoenaed board members of Petitioner 9 seeking production at trial of “[a]ny and all correspondence” mentioning “in any way” Respondent, Respondent's late husband, or a number of other individuals connected with the subject premises and “[a]ny © 2019 Thomson Reuters. No claim to original U.S. Government Works. 46 of 53 5 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) and all correspondence” concerning litigation relating to the subject premises. The purpose of a subpoena duces tecum is to compel the production of specific documents at a hearing. Matter of Terry D., 81 N.Y.2d 1042, 1044 (1993). Accordingly, overbreadth is a ground upon which to quash a subpoena. Bour v. 259 Bleecker LLC, 104 AD3d 454, 455 (1st Dept.2013). A subpoena that seeks “any and all” communications about the subject premises is only of use at a hearing if Petitioner produces such documents and then Petitioner's counsel pages through them, looking for something useful, the very picture of a fishing expedition, a ground upon which a subpoena duces tecum is subject to quashing. Mestel & Co. v. Smythe Masterson & Judd, 215 A.D.2d 329, 329–330 (1st Dept.1995). The Court therefore grants Petitioner's motion to quash all of the subpoenas duces tecum that Petitioner's counsel served on every member of Petitioner's board, except for the subpoena served on Luis Rosario, an employee of Petitioner. As noted above, as the right to issue a subpoena ad testificandum is absolute, Beach, supra, 62 N.Y.2d at 248, the Court denies so much of Petitioner's motion as seeks to quash all of the subpoenas ad testificandum that Petitioner served, without prejudice to any evidentiary objections Petitioner may have to any testimony any party adverse to Petitioner seeks from any subpoenaed witness. *8 The subpoena that Petitioner served on Luis Rosario, while also impermissibly seeking “any and all” communications, is specific about seeking records of repair requests and maintenance records for the subject premises from January 1, 2000 to the present. A subpoena that seeks “all” records, but qualifies that request with specifics is permissible. In re Nassau County Grand Jury (Doe Law Firm), 4 NY3d 665, 670 (2005), Soho Generation v. Tri–City Ins. Brokers, 236 A.D.2d 276, 277 (1st Dept.1997). The Court does not find Petitioner's argument that Petitioner's counsel may not serve a subpoena in its own right to be unpersuasive and difficult to reconcile with basic notions of due process. The Court directed a hearing for sanctions against Petitioner's counsel in addition to and as distinct from Petitioner, so Petitioner's counsel has a direct interest in the outcome of the hearing in its own right, distinct from that of Petitioner. Accordingly, the Court denies Petitioner's motion to quash the subpoena duces tecum on Luis Rosario. Respondent subpoenaed Petitioner's former counsel seeking essentially confirmation of communications between Respondent and Petitioner's former counsel. As the subpoena specifically disavowed an interest in privileged communications, and as the communications bear potential relevance to a sanctions hearing—i.e., the notice that Petitioner and/or Petitioner's counsel may have had during the course of engaging in conduct that the Court found to be without merit—Petitioner does not state grounds upon which to quash a subpoena. Moreover, while Respondent's subpoena does include one paragraph seeking “any and all” records, Respondent's subpoena seeks highly specific production of item like stock ownership, maintenance billing, checks or money orders received, correspondence from Respondent or Respondent's nephew, certifications, and minutes of the board of Petitioner authorizing a summary proceeding. The inclusion of such specifics warrants denial of the motion to quash, even for a subpoena that otherwise seeks production of “all” documents. In re Nassau County Grand Jury (Doe Law Firm), supra, 4 NY3d at 670, Soho Generation, supra, 236 A.D.2d at 277. 10 Respondent also moved to hold Petitioner in contempt of Court for failure to comply with a subpoena duces tecum. Respondent bases its motion on an observation of a person affiliated with Petitioner riding an elevator with a bag full of shredded paper. Respondent's motion is predicated on sheer speculation. Moreover, as Respondent's subpoena duces tecum is returnable at a hearing, and as the hearing has not yet taken place, Respondent's motion is not ripe. Accordingly, the Court denies Respondent's motion to hold Petitioner in contempt as such, without prejudice to renewal if Petitioner's contemptuously fails to comply with the subpoena. 11 This case is now is a hearing-ready posture. The Court restores this matter for a hearing on April 15, 2016 at 9:30 a.m. in part C, Room 844 of the Courthouse located at 111 Centre Street, New York, New York. *9 This constitutes the decision and order of this Court. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 47 of 53 6 FILED: BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 Turin Housing Development Fund Co., Inc. v. Suarez, 50 Misc.3d 1220(A) (2016) RECEIVED NYSCEF: 01/30/2019 36 N.Y.S.3d 50, 2016 N.Y. Slip Op. 50181(U) All Citations 50 Misc.3d 1220(A), 36 N.Y.S.3d 50 (Table), 2016 WL 688800, 2016 N.Y. Slip Op. 50181(U) Footnotes 1 2 3 4 5 6 7 8 9 10 11 On this motion, the Court determines motion sequence number 5, brought by Petitioner seeking to quash subpoenas that Respondent and Petitioner's former counsel (“Petitioner's counsel”) served upon it; motion sequence numbers 6 and 9, brought by Respondent seeking to quash subpoenas served upon her; motion sequence number 7, brought by Respondent seeking sanctions; motion sequence number 8, brought by Respondent seeking contempt; motion sequence number 10, seeking restoration of this matter to the Housing Court calendar; motion sequence number 11, brought by Respondent seeking to quash subpoenas, for sanctions, and for contempt; motion sequence numbers 12 and 13, brought by Petitioner and Petitioner's counsel seeking to vacate the Stipulation and the Order; and motion sequence number 14, brought by Respondent seeking sanctions. The Court disposes of motion sequences number 10 this way. As the Court granted the motion to the extent of a setting the motion down for hearing to determine what, if any, sanctions were appropriate to levy against Petitioner's counsel as well as Petitioner, Petitioner's counsel has since ceased to appear on Petitioner's behalf in this proceeding, Petitioner has retained a new attorney, and Petitioner's counsel appears on its own behalf in defense of the sanctions motion against it. This section of the Code of Federal Regulations applies to housing subsidized according to 12 U.S.C. § 1701 et seq. 24 C.F .R. § 236.1(a). The Court disposes of motion sequence numbers 12 and 13 this way. The Court disposes of motion sequence numbers 6 and part of 11 of the matter this way. The Court disposes of motion sequence numbers 7, part of 11, and 14 of the this matter this way. The Court disposes of part of motion sequence number 11 this way. Petitioner is a residential cooperative corporation. The Court disposes of motion sequence number 5 of this matter this way. The Court disposes of motion sequences number 9 this way. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 48 of 53 7 SCANNEDON 111212011 [*FILED: 1] BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 SUPWME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT : DONNA MI MILLS 58 PART Justice EVERCORE PARTNERS INC. and RALPH SCHLOSSTEIN INDEX No. 109729/11 Plaintiffs, MOTION DATE -against- SEQ?No. () MOTION 0\ LAZARD FRERES & CO., LLC, MOTION CAL NO. Defendants. ~~ The following papers, numbered 1 to were read on this motion for PAPERSNUMBERED Notice of MotiddOrder to Show Cause-Affidavits- Exhibits.... -4 S-L Answering Affidavits- Exhibits Replying Affidavits CROSS-MOTION: YES NO Upon the foregoing papers, it is ordered that this motion YORK ‘OUNr, CLERK‘S DECIDED IN ACCORDANCE WITH ATTACHED MEMORANDUM DECISION. -- Dated: v OFF^^ DONNA h!‘k~s,J , ~ - : . C , Check one: FINAL DISPOSITION NON-FINAL DISPOSITION 49 of 53 ... [*FILED: 2] BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 L - against - Petitioner, DEC ISION/ORD ER LAZARD FRERES & CO., LLC, Respondent. FILED Nov 022011 DONNA M. MILLS, J: In this special proceeding, Petitioners Evercore Partners Inc. Q’wrn and ”)Ralph Schlosstein (“Schlosstein”) (collectively “Petitioners”), apply h3?U’$RtM%%8Zfl@suant to New York Civil Practice Law and Rules (‘CPLR”) Article 75, CPLR 2304 and CPLR 3103 quashing the subpoena served by Respondent Lazard Freres & Co., LLC (“Respondent” or “Lazard”) on March 3, 2011, which commands Mr. Schlosstein’s appearance and attendance at an arbitrator’s office to testify and give evidence in connection with a pending arbitration. BACKGROUND Respondent is engaged in an arbitration with F. Perkins Hixon, Jr. (“Hixon”), currently pending before the Arbitration Tribunals of the American Arbitration Association, International Centre for Dispute Resolution. Mr, Hixon is a former employee of Respondent and a current employee of Evercore. Petitioners are not parties to the Arbitration. Evercore is an independent investment banking advisory firm. In its investment business, it manages billions of assets for a broad range of institutional and high net worth investors. Petitioner Schlosstein is currently employed as Evercore’s President and Chief Executive Officer. Mr. Hixon initiated the Arbitration against Respondent seeking severance pay and other compensation to which he claims to be entitled, in connection with the termination of his employment from Respondent pursuant to various employment agreements. Respondent counter-claimed, alleging Mr. Hixon is not entitled to any pay because he 50 of 53 ~ [*FILED: 3] BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 C breached restrictive covenants in his agreements with Respondent that prohibited him from soliciting Respondent’s employees, allegedly by contacting several then-employees of Larard about joining Mr. Hixon at Evercore. A relevant outstanding issue in the Arbitration is whether Mr. Hixon’s alleged breach I of the non-solicitation covenants in his employment agreements constituted a material breach such that it relieved Respondent of its obligations to pay Mr. Hixon pursuant to those same employment agreements. Evercore contends that it has produced hundreds of pages of documents in response to a subpoena duces tecum. Respondent issued additional subpoenas ad testificatum to compel the appearance and testimony of three Evercore employees at the Arbitration, including Mr. Schlosstein. Evercore has agreed to produce the other two employees but considers it an undue burden to require its chief executive officer to testify, and has informed the Respondents that they will not make Mr. Schlosstein available. Petitioners now seek a protective order from this Court quashing the subpoena. Petitioner’s maintain that the subpoena is unreasonable and unduly burdensome and unjustified based on the matters at issue in the arbitration. APPLICABLE LAW & DISCUSSION Initially the Court notes that a distinction must be made between a subpoena duces tecum and a subpoena ad testificandum. A subpoena duces tecum refers only to books and records and will issue only in a proper case, i.e., when the requested documents bear a reasonable relationship to the subject matter of the investigation (Matter of Hirschfield v Craiq, 239 NY 98; Carlisle v Bennett, 268 NY 212.) A subpoena ad testificandum, however, merely requires a witness to appear and give testimony subject to any evidentiary privilege or immunity which may be asserted at the time of the examination ( M a t h of Hirschfield v Craiq, supra). While there may be judicial review of both types of subpoena, the focus of that inquiry usually differs. On a motion to quash a subpoena duces tecum the court is more often concerned with protecting litigants from a burdensome or an irrelevant demand and thus is more apt to intervene 2 51 of 53 . , I [*FILED: 4] BRONX COUNTY CLERK 01/30/2019 02:02 PM NYSCEF DOC. NO. 342 INDEX NO. 24973/2015E RECEIVED NYSCEF: 01/30/2019 c at a preliminary stage. That justification is absent when considering a motion to quash a subpoena ad testificandum. Thus there is case law to the effect that the right to issue a subpoena ad testificandum is absolute (Matter of Hirschfield v Craiq, supra). However, a subpoena ad testificandum may be quashed if issuance of such a subpoena was beyond the power of the agency or entity involved (Matter of ’ Richardson, 247 NY 401), or if it is obvious that the subpoena seeks irrelevant or illegitimate information (Matter of Edqe Ho Holdinq CorR., 256 NY 374, 381 [1931]). The reason for the rule that on a motion to quash a subpoena the relevancy of the proposed testimony cannot be challenged was best stated by Chief Judge Cardozo in Matter of Edqe Ho l-loldinq Corn. at 381. The court in discussing the power to issue a subpoena ad testificandum stated, [Tlhey [the power to subpoena] will be rendered to a large extent abortive if his subpoenas are to be quashed in advance of any hearing at the instance of unwilling witnesses upon forecasts of the testimony and nicely balanced arguments as to its probable importance.” (Emphasis supplied.) The court thus felt that prophesying the probable importance of a witness would in effect destroy the very power to subpoena (see, also, Matter of Scheeler v Buffalo Wire Works Go., 50 Misc 2d 158). Petitioners have asserted that there is no reason why one of the most senior officers of a significant investment bank should be forced to testify when he cannot provide any unique knowledge as to the contractual dispute before the arbitrator, particularly since he nor the institution he works for is a party to the arbitration. This Court finds, however, that based on the evidence already admitted in the arbitration proceeding, it is quite apparent that Schlosstein’s numerous conversations with Hixon before hiring him, and his emails forwarded to other Evercore employees regarding the recruitment of Hixon and his former colleagues at Lazard is relevant and a legitimate 3 52 of 53 I [*FILED: 5] BRONX COUNTY CLERK 01/30/2019 02:02 PM INDEX NO. 24973/2015E NYSCEF DOC. NO. 342 RECEIVED NYSCEF: 01/30/2019 inquiry, notwithstanding Schlosstein's affidavit denying any specific recollection of the emails. And, while Schlosstein is a third-party witness, Lazard should not be deprived of his testimony simply because he happens not to be a party to the Arbitration. For all reasons, herein, the motion to quash the subpoena is denied and the petition dismissed. EWER: - J.S.C. NEW YORK COUNN CLERK'S OFFICE 4 53 of 53