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712807/2016
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS
Index No. 712807/2016

Justice Leonard Livote

KCM REALTY COMPANY, L.P., IA Part 33
Commercial Division Part A
Plaintiff,
AFFIRMATION IN SUPPORT
v. OF PLAINTIFFS MOTION TO
COMPEL DEFENDANT TO
NEW RAM REALTY, LLC, SERVE RESPONSE TO
PLAINTIFFS DOCUMENT
Defendant. DEMAND AND TO PRODUCE
RESPONSIVE DOCUMENTS
AND AFFIRMATION OF GOOD
FAITH PURSUANT TO S 202.7

MITCHELL J. GELLER, an attorney duly admitted to practice law before the courts of

the State of New York, affirms under penalty of perjury:

1. I am a partner of Holland & Knight LLP, attorneys for Plaintiff KCM Realty

Company, L.P. (KCM or Plaintiff) in the above captioned action. I have personal

knowledge of the facts set forth below and make this Affirmation in support of KCMs motion,

pursuant to CPLR 3124, to compel Defendant New Ram Realty, LLC (New Ram), to (i) serve

its Response to Plaintiffs First Notice of Discovery and Inspection, dated December 19, 2016

(Plaintiffs First Document Request), and to produce the documents requested therein, and (ii)

serve its Statement of names and addresses of witnesses and statement of opposing parties, if

any. (A true and correct copy of Plaintiffs First Document Request is annexed hereto as Exhibit

1). This Affirmation also constitutes the affirmation of good faith pursuant to 202.7 of the

Uniform Rules of Trial Courts and Rule 14 of the Commercial Division Rules.

2. This motion is necessitated by New Rams repeated failure to serve its Response

and to produce the documents responsive to Plaintiffs First Document Request. As shown

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below and in the accompanying Plaintiffs Memorandum of Law (PL Mem.), the documents

sought are clearly relevant to the claims and prosecution of this action, and, in fact, New Ram

has not objected to Plaintiffs First Document Request. New Rams failure to challenge

Plaintiffs First Document Request within the twenty day time period prescribed by CPLR

3122(a) forecloses inquiry into the propriety of the information sought except with regard to

material that is privileged pursuant to CPLR 3101 or to requests that are palpably improper.

(See PI. Mem., p. 5). New Ram simply has failed to produce any documents and its counsel has

failed to give a date certain when the Response will be served and documents responsive to

Plaintiffs First Document Request will be produced. Accordingly, KCM had no choice but to

bring this motion to compel New Ram to comply with its discovery obligations.

Counsel Has Made A Good Faith Effort To Resolve Issues Raised By This Motion

3. I have made a good faith effort to resolve the issues raised by this motion. As

outlined in more detail below (see 11-14, 17-21), I sent numerous letters and e-mails to New

Rams counsel and called New Rams counsel a number of times in an attempt to resolve the

issue.

4. Most recently, on May 1, 2017, at approximately 4:45 p.m., I had a telephone call

with Clifford Greene, Esq. of Clifford Greene & Associates, counsel for New Ram, regarding

New Rams failure to serve its Response and to produce documents responsive to Plaintiff s First

Document Request. I stated that the Preliminary Conference Order required New Ram to serve

its Response to Plaintiffs First Document Request and to produce responsive documents on

March 28. 2017 - 35 days ago. I then stated to Mr. Greene that, given the chronic failure of New

Ram to produce documents responsive to Plaintiffs First Document Request, KCM planned to

file a motion to compel if the Response to Plaintiffs First Document Request and the responsive

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documents were not received by Wednesday, May 3, 2017. Mr. Greene stated that New Ram

would not be serving its Response and producing responsive documents by May 3, 2017. And,

while Mr. Greene suggested that KCM would ultimately receive the responsive documents, Mr.

Greene gave no date certain as to when that might benotwithstanding the fact that Defendants

Response to Plaintiffs First Document Request originally was due on January 9. 2017. almost

four months ago.

Background

5. On November 11, 2016, KCM commenced this action seeking, inter alia,

declaratory and injunctive relief against New Ram. Plaintiff filed an Amended Complaint on

November 28, 2016. (A true and correct copy of the Amended Complaint is annexed hereto as

Exhibit 2).

6. The action arises out of a commercial lease dispute between KCM (as Owner) and

New Ram (as Tenant) arising out of an Agreement of Lease, dated as of March 5, 2004 (the

Lease). The Amended Complaint asserts three causes of action. The first cause of action is

for a declaratory judgment that New Ram has breached the use provisions of the Lease. The

second cause of action seeks a judgment enjoining New Ram from violating the Leases use

provisions. The third cause of action seeks a judgment awarding KCM costs, expenses and

attorneys fees incurred in enforcing the use provisions of the Lease.

7. Specifically, the Amended Complaint alleges that under the terms of the Lease,

New Ram is permitted to use the subject premises only for the erection, operation and

maintenance of a hotel, for retail stores located on the ground floor of the hotel, and for the

parking of vehicles related to the business of the hotel and such stores. In late August 2016,

New Ram approached KCM with a plan to sublease the existing hotel to a third party, who

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would convert the hotel to an adult homeless shelter pursuant to an agreement with the New

York City Department of Homeless Services (DHS). By an August 25, 2016 letter, KCM

advised New Ram that the proposed conversion of the hotel to an adult homeless shelter violated

the use restrictions of the Lease, that the proposed conversion would constitute an event of

default under the Lease, and that KCM would not consent to the proposed sublease.

8. Following significant community backlash to the plan and KCMs refusal to

approve the unauthorized use of the premises, New Ram initially indicated that it was

abandoning the plan to convert the hotel to a homeless shelter. But, just weeks later, New Ram

began the conversion of the hotel to a homeless shelter, surreptitiously renting over a quarter of

the hotels rooms to DHS (or the City of New York) to house homeless adults. New Rams

actions not only constitute a material departure fromand breach ofthe use provisions of the

lease, but also establish a breach of the leases non-circumvention provision, which prohibits

New Ram from directly or indirectly attempting to circumvent the requirement that it obtains

KCMs consent for any sublease.

KCMs Requests And New Rams Continuous Failure To

Respond, Object, or Produce Responsive Documents_____

9. On December 19, 2016, pursuant to CPLR 3120, I served Plaintiffs First

Document Request by UPS overnight courier (see Ex. 1) on Clifford Green & Associates, New

Rams counsel. Plaintiffs First Document Request seeks documents directly relevant to the

claims in this action, including the following documents:

(a) the Lease;

(b) Documents constituting or relating to communications and/or meetings

between KCM and New Ram subsequent to June 1, 2016 concerning
various subjects, including a plan or proposal to convert the existing Hotel
on the Premises to a homeless shelter or to house homeless persons, KCMs

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rejection of New Rams plan or proposal to convert the existing Hotel on

the Premises to a homeless shelter or to house homeless persons;

(c) Agreements between New Ram and DHS or the City related to the
Hotel;

(d) Documents constituting or relating to communications and/or meetings

between New Ram and DHS or the City subsequent to June 1, 2016
concerning various subjects, including using the Hotel to house homeless
persons;

(e) Documents constituting or reflecting the payment of monies by DHS or

the City to New Ram for the housing of homeless persons subsequent to
September 1, 2016;

(f) Documents concerning communications between New Ram and

Holiday Inn concerning or relating to New Rams use of the Hotel to house
homeless persons;

(g) Documents concerning any plan to alter New Rams use of the Hotel;

(h) Documents constituting or relating to communications and or meetings

between New Ram and Promesa or Acasia subsequent to June 1, 2016
concerning various subjects, including using the Hotel to house homeless
persons, and the use provision or use restriction in the Lease; and

(i) Documents relating to New Rams affirmative defenses in its Answer.

10. Pursuant to CPLR 3120 and 3122 and Plaintiffs First Document Request, New

Ram was required to respond to Plaintiffs First Document Request with any objections and

produce its documents, together with electronically stored information (ESI), on January 9,

2017, New Ram failed to do so.

11. By a letter dated January 18, 2017 (the January 18, 2017 Letter), sent by email

and UPS overnight courier, I advised Clifford Greene, Esq., New Rams counsel, that New Ram

had not responded to Plaintiffs First Document Request and had not produced any documents or

ESI. (A true and correct copy of the January 18, 2017 Letter, with cover email, is annexed

hereto as Exhibit 3).

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12. The January 18, 2017 Letter also advised Mr. Greene of the consequences of New

Ram s failure to serve its Response to Plaintiffs First Document Request within the twenty day

period prescribed by CPLR 3122(a):

Defendants failure to challenge Plaintiffs First Document Request

within the twenty day time period prescribed by CPLR 3122(a)
forecloses inquiry into the propriety of the information sought
except with regard to material that is privileged pursuant to CPLR
3101 or to requests that are palpably improper." See Hunt v. Odd Job
Trading, 44 A.D.3d 714, 715, 843 N.Y.S.2d 423, 424 (2d Dept
2007); Fausto v. City of New York, 17 A.D.3d 520, 522, 793
N.Y.S.2d 165, 167 (2d Dep't 2005); DG & A Management Services,
LLC v. Securities industry Ass'n Compliance and Legal Division, 78
A.D.3d 1316, 1318, 910 N.Y.S.2d 242, 244-245 (3d Dep't 2010).

Additionally, the January 18, 2017 Letter advised Mr. Greene that each of the requests in

Plaintiffs First Document Request seeks documents and ESI that are clearly relevant and

material to the claims in the action within the broad scope of discovery under CPLR 3101(a)(1).

13. By an e-mail dated February 6, 2017 (the February 6, 2017 E-mail), I

reminded New Rams counsel of New Rams failure to respond, object, or produce documents in

response to Plaintiffs First Document Request. (A true and correct copy of the February 6,2017

E-mail (without the January 18, 2017 Letter) is annexed hereto as Exhibit 4).

14. By an e-mail dated February 17, 2017 (the February 17, 2017 E-mail), I again

reminded Mr. Greene of New Rams failure to respond, object, or produce documents in

response to Plaintiffs First Document Request. For the third time, I demanded that Defendant

immediately produce the documents and ESI responsive to Plaintiffs First Document Request.

(A true and correct copy of the February 17, 2017 E-mail (without the January 18, 2017 Letter)

is annexed hereto as Exhibit 5).

15. On February 22, 2017, I sent New Rams counsel an email advising him of the

Preliminary Conference in this matter scheduled for February 28, 2017. I sought to schedule a

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call with Mr. Greene to discuss New Rams failure to produce documents, in an attempt to

resolve the issue before the Preliminary Conference. However, Mr. Greene responded that he

saw no reason why we cant talk at the PC conference and figure everything out then. When I

explained that Rule 8 of the Commercial Division requires the parties to consult on discovery

issues prior to the Preliminary Conference, I received no response from Mr. Greene. (A true and

correct copy of the email chain with the above communications is annexed hereto as Exhibit 6).

16. On February 28, 2017, Clifford Greene, Esq. and I attended the Preliminary

Conference in this action. The Preliminary Conference Order, dated February 28, 2017 (the

Preliminary Conference Order), provides that Defendant shall serve its Response to Plaintiffs

First Notice of Discovery and Inspection, dated December 19, 2016, and produce responsive

documents on March 28. 2017. (Emphasis added). The Preliminary Conference Order also

required the parties to exchange names and addresses of all witnesses and statements of

opposing parties and photographs. (A true and correct copy of the Preliminary Conference

Order is annexed hereto as Exhibit 7).

17. New Ram failed to comply with the Preliminary Conference Orders March 28.

2017 deadline for serving its Response to Plaintiffs First Document Request and producing

responsive documents. Indeed, New Ram continued to ignore its discovery obligations as it had

done before the Preliminary Conference Order.

18. By an e-mail dated March 31,2017 (the March 31,2017 E-mail), I advised Mr.

Greene of New Rams failure to respond, object, or produce documents in response to Plaintiff s

First Document Request, in violation of the Preliminary Conference Order. (A true and correct

copy of the March 31, 2017 E-mail is annexed hereto as Exhibit 8). The March 31, 2017 E-mail

also stated that Holland & Knights January 18, 2017 letter demonstrated that Defendants

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failure to challenge Plaintiffs First Document Request within the twenty day time period

prescribed by CPLR 3122(a) forecloses inquiry into the propriety of the information sought

except with regard to material that is privileged pursuant to CPLR 3101 or to requests that are

palpably improper. See, e.g., Hunt v. Odd Job Trading, 44 A.D.3d 714, 715, 843 N.Y.S.2d 423,

424 (2d Dept 2007).

19. By an e-mail dated April 20, 2017 (the April 20, 2017 E-mail), I once again

reminded New Rams counsel of New Rams failure to respond, object, or produce documents in

response to Plaintiffs First Document Request, in violation of the Preliminary Conference

Order. I explained that, if New Ram did not produce the documents forthwith, KCM would have

no choice but to move to compel production. (A true and correct copy of the April 20, 2017 E-

mail is annexed hereto as Exhibit 9).

20. On May 1, 2017, at approximately 4:45 p.m. I had a telephone call with Clifford

Greene, counsel for New Ram. I stated that the Preliminary Conference Order required New

Ram to serve its Response to Plaintiffs First Document Request and to produce responsive

documents on March 28. 2017 - 35 days ago. I then stated that, given that the chronic failure of

New Ram to produce documents responsive to Plaintiffs First Document Request, KCM

planned to file a motion to compel if the documents were not received by Wednesday, May 3,

2017. Although Mr. Greene stated that he had received documents from New Ram, Mr. Greene

indicated that New Ram would not be serving its Response and producing responsive documents

by May 3, 2017, and gave no date certain as to when the Response would be served and the

responsive documents produced.

21. On the May 1,2017 call, I also advised Mr. Greene that New Ram had not served

a Statement concerning witnesses and statements of opposing parties, as required by the

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Preliminary Conference Order. I noted that New Ram served such a Statement, and asked when

New Ram would similarly comply with the requirement. Mr. Greene gave no date certain as to

when New Ram would serve the Statement.

22. New Ram has not served its Response to Plaintiffs First Document Request, has

not produced any of the documents or ESI requested in Plaintiffs First Document Request and

has not served the Statement concerning witnesses and statements of opposing parties, as

required by the Preliminary Conference Order.

23. The foregoing demonstrates that New Ram has failed to comply with its discovery

obligations under Article 31 of the CPLR and has refused to disclose material and relevant

documents. Given the broad scope of disclosure under the CPLR, and New Rams repeated

failure to respond to KCMs document requests in Plaintiffs First Document Request, New Ram

should be compelled to serve its Response and produce the requested documents and ESI.

Moreover, New Rams failure to challenge Plaintiffs First Document Request within the twenty

day time period prescribed by CPLR 3122(a) forecloses inquiry into the propriety of the

information sought except with regard to material that is privileged pursuant to CPLR 3101 or

to requests that are palpably improper. {See PI. Mem., p. 5).

24. No prior application for the relief requested herein has been made.

WFIEREFORE, it is respectfully requested that the Court grant KCMs motion to compel

disclosure in its entirety.

Dated: New York, New York

May 4, 2017

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