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FILED: QUEENS COUNTY CLERK 05/04/2017 01:07 PM INDEX NO.

712807/2016
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2017

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF QUEENS__________________________

KCM REALTY COMPANY, L.P.,


Index No. 712807/2016
Plaintiff,
Justice Leonard Livote
v. IA Part 33
Commercial Division Part A
NEW RAM REALTY, EEC,

Defendant.

PLAINTIFF KCM REALTY COMPANY, L.P.S MEMORANDUM OF LAW


IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT TO SERVE RESPONSE
TO PLAINTIFFS DOCUMENT DEMAND AND TO PRODUCE DOCUMENTS

HOLLAND & KNIGHT LLP


31 West 52nd Street
New York, NY 10019
212-513-3410
mitchell.geller@liklaw.com

Attorneys for Plaintiff

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TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES.................................................................................................................... ii
PRELIMINARY STATEMENT.............................................................................................................. 1
THE FACTS................................................................................................................................................ 1
POINT I
KCM'S MOTION TO COMPEL DISCLOSURE FROM NEW RAM SHOULD BE
GRANTED.....................................................................................................................................4
A. New Ram Should Be Compelled To Serve Its Response To Plaintiff s
First Document Request And To Produce The Documents Requested
By Plaintiffs First Document Request............................................................4
B. New Ram Should Be Compelled To Serve Its Statement Of Names
And Addresses Of Witnesses And Statements Of Opposing Parties............8
CONCLUSION............................... 8

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TABLE OF AUTHORITIES

Page(s)
Cases

Allen v. Crowell-Collier Publ. Co.,


21 N.Y.2d 403 (1968)......................................................................................................................... ..

During v. City ofNew Rochelle,


55 A.DJd 533 (2d Dept 2008)......................................................................................................... 5

Fausto v. City ofNew York,


17 A.D.3d 520 (2d Dept 2005)......................................................................................................... 5

Hunt v. Odd Job Trading,


44 A.DJd 714 (2d Dept 2007).............................................................. .......................................... 5

Montalvo v. CVS Pharmacy, Inc.,


81 A.DJd 611 (2d Dept 2011).........................................................................................................4

Napoleoni v. Union Hosp.,


207 A.DJd 660 (1st Dept 1994)......................................................................................................4

ONeil v. Oakgrove Constr., Inc.,


71 N.Y.2d 521 (1988)......................................................................................................................... 4

Reid v. Souks,
138 A.DJd 1091 (2d Dept 2016).....................................................................................................4

Rivera v. NYP Holdings Inc.,


63 A.DJd 469 (1st Dept 2009)........................................................................................................5

Robinson v. Meca,
214 A.DJd 246 (3d Dept 1995).......................................................................................................4

Roman Catholic Church of the Good Shephard v. Tempco Systems,


202 A.DJd 257 (1st Dept 1994)........................... ..........................................................................4

Matter of Saratoga Property Developments, LLC v. Assessor of the City of


Saratoga Springs,
62 A.DJd 1107 (3d Dept 2009)....................................................................................................... 6

Woo v. Shimunov,
273 A.DJd 303 (2d Dept 2000)..................................................................................................... 5

Statutes

CPLR 3101(a).........................................................................................................................................4

ii

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CPLR 3122(a).........................................................................................................................................2, 5

CPLR3124......................................................................................................................................... 1,4,7

iii

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PRELIMINARY STATEMENT

Plaintiff KCM Realty Company, L.P. (KCM or Plaintiff) submits this memorandum

of law in support of its motion, pursuant to CPLR 3124, to compel Defendant New Ram Realty,

LLC (New Ram or Defendant) to (i) serve its Response to Plaintiff s 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 statements of opposing parties, if any. A copy of Plaintiffs First Document Request is

annexed as Exhibit 1 to the accompanying Affirmation of Mitchell J. Geller, dated May 4, 2017

(the Geller Affirmation or Geller Aff).

THE FACTS

A full recitation of the relevant facts is set forth in the Geller Affirmation and the exhibits

annexed thereto, to which KCM respectfully refers the Court.

On December 19, 2016, Holland & Knight LLP (Holland & Knight), KCMs counsel,

served Plaintiffs First Document Request on New Rams counsel via UPS overnight courier. (See

Geller Aff., | 9). The documents sought are directly relevant to the claims and prosecution of this

case, and New Ram has never contended otherwise. (Id, 2,9). Nevertheless, New Ram

produced no documents or electronically stored information (ESI)and served no response or

objectionsby January 9, 2017, the date Plaintiffs First Document Request specified for

Defendants Response and production of documents. (Id., ^ 10).

On January 18, 2017, Holland & Knight, KCMs counsel, sent a letter, via email and UPS

overnight courier, advising New Rams counsel that New Ram was in breach of its discovery

obligations because of its failure to respond to Plaintiffs First Document Request and to produce

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responsive documents. {Id,. If 11 & Ex, 31). After receiving no response to the January 18, 2017

letter, KCMs counsel followed up with additional emails on February 6th and February 17th. (Id,

Ifl 1314 & Exs. 4-5). In each instance, KCMs counsel (i) explained that New Rams failure to

object within the twenty day time period prescribed by CPLR 3122(a) foreclosed objections to

Plaintiff s First Document Request except in cases of privilege or where a request was palpably

improper, and (ii) demanded immediate production of the documents and ESI requested. (Id., ||

11, 13-14 &Exs. 3-51.

When, by February 22nd, New Ram still had not responded, KCMs counsel sent an

additional email seeking to schedule a call to discussand hopefully resolvethe discovery issue

in advance of the Preliminary Conference scheduled for February 28, 2017. (Id, ^ 15 & Ex. 6).

New Rams counsel simply responded that the parties could figure everything out at the

Preliminary Conference. (Id.).

Ultimately, the Preliminary Conference Order, dated February 28, 2017, required New

Ram to serve its response to Plaintiffs First Document Request and produce responsive documents

on March 28, 2017. (Id., *\\ 16 & Ex. 7). Yet, New Ram failed to comply with even this extended

deadline. (Id,. *[ 17). So, on March 31st and again on April 20th, KCMs counsel sent an email

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

accordance with the Preliminary Conference Order. (Id. ^ 18-19 & Exs. 8-9). Not surprisingly,

New Ram did not respond to these e-mails.

On May 1, 2017, Mitchell Geller, Esq. of Holland & Knight made a good faith effort to

resolve the issues raised by this motion. (Id., If 20). On May 1, 2017, Mr. Geller had a telephone

call with Clifford Greene, Esq., counsel for New Ram, regarding New Rams failure to serve its

1 Ex. refers to the exhibits annexed to the Geller Affirmation.

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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF QUEENS__________________________

KCM REALTY COMPANY, L.P.,


Index No. 712807/2016
Plaintiff,
Justice Leonard Livote
v. IA Part 33
Commercial Division Part A
NEW RAM REALTY, LLC,

Defendant.

PLAINTIFF KCM REALTY COMPANY, L.P.S MEMORANDUM OF LAW


IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT TO SERVE RESPONSE
TO PLAINTIFFS DOCUMENT DEMAND AND TO PRODUCE DOCUMENTS

HOLLAND & KNIGHT LLP


31 West 52nd Street
New York, NY 10019
212-513-3410
mitchell. geller@,hklaw.com

Attorneys for Plaintiff

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TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES.................................................................................................................... ii
PRELIMINARY STATEMENT.............................................................................................................. 1
THE FACTS................................................................................................................................................ 1
POINT I
KCM'S MOTION TO COMPEL DISCLOSURE FROM NEW RAM SHOULD BE
GRANTED.....................................................................................................................................4
A. New Ram Should Be Compelled To Serve Its Response To Plaintiff s
First Document Request And To Produce The Documents Requested
By Plaintiffs First Document Request............................................................4
B. New Ram Should Be Compelled To Serve Its Statement Of Names
And Addresses Of Witnesses And Statements Of Opposing Parties............8
CONCLUSION........................................................................................................................................... 8

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TABLE OF AUTHORITIES

Page(s)
Cases

Allen v. Crowell-Collier Publ. Co.,


21 N.Y.ld 403 (1968)......................................................................................................................... ..

During v. City ofNew Rochelle,


55 A.DJd 533 (2d Dept 2008)......................................................................................................... 5

Fausto v. City ofNew York,


17 A.DJd 520 (2d Dept 2005)......................................................................................................... 5

Hunt v. Odd Job Trading,


44 A.DJd 714 (2d Dept 2007).........................................................................................................5

Montalvo v. CVS Pharmacy, Inc.,


81 A.DJd 611 (2d Dept 2011)......................................................................................................... 4

Napoleoni v. Union Hasp.,


207 A.DJd 660 (1st Dept 1994)......................................................................................................4

ONeil v. Oakgrove Constr., Inc.,


71 N.Y.2d 521 (1988)......................................................................................................................... 4

Reid v. Soults,
138 A.DJd 1091 (2d Dept 2016).....................................................................................................4

Rivera v. NYP Holdings Inc.,


63 A.DJd 469 (1st Dept 2009)........................................................................................................5

Robinson v. Meca,
214 A.DJd 246 (3d Dept 1995).......................................................................................................4

Roman Catholic Church of the Good Shephard v. Tempco Systems,


202 A.DJd 257 (1st Dept 1994)......................................................................................................4

Matter ofSaratoga Property Developments, LLC v. Assessor of the City of


Saratoga Springs,
62 A.DJd 1107 (3d Dept 2009)..................................................................................................... 6

IVoo v. Shimunov,
273 A.DJd 303 (2d Dept 2000).............................................................................................. :....... 5

Statutes

CPLR 3101(a).........................................................................................................................................4

ii

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CPLR 3122(a).........................................................................................................................................2,5

CPLR3124......................................................................................................................................... 1,4,7

ill

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PRELIMINARY STATEMENT

Plaintiff KCM Realty Company, L.P. (KCM or Plaintiff) submits this memorandum

of law in support of its motion, pursuant to CPLR 3124, to compel Defendant New Ram Realty,

LLC (New Ram or Defendant) 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 statements of opposing parties, if any. A copy of Plaintiffs First Document Request is

annexed as Exhibit 1 to the accompanying Affirmation of Mitchell J. Geller, dated May 4, 2017

(the Geller Affirmation or Geller Aff).

THE FACTS

A full recitation of the relevant facts is set forth in the Geller Affirmation and the exhibits

annexed thereto, to which KCM respectfully refers the Court.

On December 19, 2016, Holland & Knight LLP (Holland & Knight), KCMs counsel,

served Plaintiffs First Document Request on New Rams counsel via UPS overnight courier. (See

Geller Aff, 9). The documents sought are directly relevant to the claims and prosecution of this

case, and New Ram has never contended otherwise. (Id, ^ 2,9). Nevertheless, New Ram

produced no documents or electronically stored information (ESI)and served no response or

objectionsby January 9, 2017, the date Plaintiffs First Document Request specified for

Defendants Response and production of documents. (Id., ^ 10).

On January 18, 2017, Holland & Knight, KCMs counsel, sent a letter, via email and UPS

overnight courier, advising New Rams counsel that New Ram was in breach of its discovery

obligations because of its failure to respond to Plaintiffs First Document Request and to produce

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responsive documents. {Id,. H 11 & Ex. 31). After receiving no response to the January 18, 2017

letter, KCM s counsel followed up with additional emails on February 6^ and February ly1*1. (Id.,

11 13-14 & Exs. 4-5). In each instance, KCMs counsel (i) explained that New Rams failure to

object within the twenty day time period prescribed by CPLR 3122(a) foreclosed objections to

Plaintiff s First Document Request except in cases of privilege or where a request was palpably

improper, and (ii) demanded immediate production of the documents and ESI requested. {Id.,

11, 13-14 & Exs. 3-5).

When, by February 22nd, New Ram still had not responded, KCMs counsel sent an

additional email seeking to schedule a call to discussand hopefully resolvethe discovery issue

in advance of the Preliminary Conference scheduled for February 28, 2017. {Id., ^ 15 & Ex. 6).

New Rams counsel simply responded that the parties could figure everything out at the

Preliminary Conference. (Id.).

Ultimately, the Preliminary Conference Order, dated February 28, 2017, required New

Ram to serve its response to Plaintiffs First Document Request and produce responsive documents

on March 28. 2017. (Id.,*) 16 & Ex. 7). Yet, New Ram failed to comply with even this extended

deadline. {Id,. T| 17). So, on March 31st and again on April 20th, KCMs counsel sent an email

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

accordance with the Preliminary Conference Order. {Id. flj 18-19 & Exs. 8-9). Not surprisingly,

New Ram did not respond to these e-mails.

On May 1, 2017, Mitchell Geller, Esq. of Holland & Knight made a good faith effort to

resolve the issues raised by this motion. {Id., ^ 20). On May 1, 2017, Mr. Geller had a telephone

call with Clifford Greene, Esq., counsel for New Ram, regarding New Rams failure to serve its

1 Ex. refers to the exhibits annexed to the Geller Affirmation.

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Response and to produce documents responsive to Plaintiffs First Document Request. Mr. Geller

stated that the Preliminary Conference Order, dated February 28,2017, required New Ram to serve

its Response to Plaintiff s First Document Request and to produce responsive documents on March

28, 2017 35 days aflo. (Id ). Mr. Geller also 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 and the responsive 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 was due on January 9. 2017, almost four months ago. (Id.).

The Preliminary Conference Order also required the parties to exchange names and

addresses of all witnesses and statements of opposing parties and photographs. (Id., 16 &

7). KCM served a Statement complying with this requirement of the Preliminary Conference.

New Ram, however, has failed to do so. (Id., Tf 21). During the May 1, 2017 telephone call,

Mitchell Geller, Esq., KCMs counsel, also advised Mr. Greene, New Rams counsel, of this

failure and asked when a Statement would be served. (Id.). Mr. Greene gave no date certain as to

when New Ram would serve the Statement. (Id.).

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

February 28, 2017 Preliminary Conference Order. (Id, 1 22). Defendants continued refusal to

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comply with the February 28, 2017 Preliminary Conference Order and its discovery obligations

has necessitated this motion to compel.

POINT I

KCM'S MOTION TO COMPEL DISCLOSURE


FROM NEW RAM SHOULD BE GRANTED

CPLR 3124 provides as follows:

If a person fails to respond to or comply with any request, notice,


interrogatory, demand, question or order under this article, except a
notice to admit under section 3123, the party seeking disclosure may
move to compel compliance or a response.

A. New Ram Should Be Compelled To Serve Its Response


To Plaintiffs First Document Request And To Produce The
Documents Requested By Plaintiffs First Document Request

CPLR 3101(a) states that there shall be full disclosure of all evidence material and

necessary in the prosecution or defense of an action. Disclosure under 3101 is liberally

construed. See, e.g., Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 405-407 (1968); Reid v.

Soults, 138 A.D.3d 1091, 1092 (2d Dept 2016). Discovery is permitted of any facts bearing on

the controversy that will assist in sharpening the issues for trial, ONeil v. Oakgrove Constr., Inc.,

71 N.Y.2d 521, 526 (1988), and extends to matters that may lead to the disclosure of admissible

proof, Montalvo v. CVS Pharmacy, Inc., 81 A.DJd 611,612 (2d Dept 2011), or may be used for

rebuttal or for cross-examination, Robinson v. Meca, 214 A.D.2d 246, 249 (3d Dept 1995)

(Information sought in good faith for possible use as evidence-in-chief, in rebuttal or for cross-

examination should be considered material in the prosecution or defense of the action.).

There is a strong presumption in favor of enforcing disclosure. Napoleoni v. Union

Hosp., 207 A.D.2d 660, 662 (1st Dept 1994). Moreover, the party opposing disclosure has the

burden of showing that the disclosure sought is improper. Roman Catholic Church of the Good

Shephard v. Tempco Systems, 202 A.D.2d 257, 258 (1st Dept 1994).

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The courts of this State have consistently compelled production of documents where, as

here, the documents are relevant and the party has refused to produce such documents. See, e.g.,

Hunt v. Odd Job Trading, 44 A.D.3d 714, 716 (2d Dept 2007) (affirming order granting motion

to compel); During v. City of New Rochelle, 55 A.D.3d 533, 534-535 (2d Dept 2008) (reversing

motion courts ruling and granting motion to compel disclosure); Rivera v. NYP Holdings Inc., 63

A.D.3d 469 (1st Dept 2009) (same); Matter ofSaratoga Property Developments, LLC v. Assessor

of the City ofSaratoga Springs, 62 A.DJd 1107, 1108-1109 (3d Dept 2009).

Moreover, a partys failure to challenge [a] notice of discovery within [the twenty day]

time prescribed [by CPLR 3122(a)] foreclose^] inquiry into the propriety of the information

sought except with regard to requests that are privileged under CPLR 3101, or as to requests that

are palpably improper. Fausto v. City of New York, 17 A.DJd 520, 522 (2d Dept 2005); see

also Hunt, 44 A.DJd at 716 (Sunbeam's failure to timely challenge the notice to produce

forecloses inquiry into the propriety of the information sought except with regard to material that

is privileged pursuant to CPLR 3101 or requests that are palpably improper (citation omitted));

Woo v. Shimunov, 273 A.DJd 303, 303 (2d Dept 2000) (The failure of a party to challenge a

notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR

3122 forecloses inquiry into the propriety of the information sought.).

Here, as described above, Plaintiffs First Document Request was served via UPS

overnight courier on December 19, 2016. {See Geller Aff, *\\ 9). New Ram did not challenge

Plaintiffs Document Request during the time prescribed by CPLR 3122(a); indeed, it never

challenged Plaintiffs First Document Request. (Id, f 2). Nevertheless, now, nearly five months

after service of the Request, New Ram has still failed to produce a single document or ESI. (Id.).

Given its failure to respond or object within the prescribed time, New Ram is foreclosed from

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raising objections to Plaintiff s First Document Request and inquiry into the propriety of the

information sought is foreclosed except with regard to material that is privileged or as to requests

that are palpably improper.

The requests in Plaintiff s First Document Request neither seek privileged communications

nor are palpably improper. Rather, Plaintiffs First Document Request seeks documents directly

relevant to the causes of action in the Amended Complaint (Ex. 2).

The gist of the Amended Complaint is that New Ram has breached the use provisions of

the Agreement of Lease, dated as of March 5, 2004 (the Lease), under which 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 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. (See Geller Aff, ^ 5-7).

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. The Amended Complaint asserts that New

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

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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. (See Geller Aff, f 8).

Plaintiff s First Document Request requires New Ram to produce documents that are

material and necessary to the prosecution of KCMs claims in this action that New Ram has

breached and is continuing to breach the use provisions of the Lease. These document requests

include: (a) the Lease itself; (b) documents constituting or relating to communications and/or

meetings between KCM and New Ram subsequent to June 1, 2016 concerning various subjects,

including New Rams plan or proposal to convert the existing Hotel on the Premises to a homeless

shelter or to house homeless persons, and KCMs rejection of New Rams plan or proposal to

convert the existing Hotel to a homeless shelter or to house homeless persons; (c) agreements

between DHS or the City and New Ram relating to using the existing Hotel on the Premises to

house homeless persons; (d) the payment of monies by DHS or New York City to New Ram for

the housing of homeless persons; (e) documents concerning communications between New Ram

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

and (f) documents relating to the affirmative defenses asserted in New Rams Answer. (See Geller

Aff., 2, 9 & Ex. Ih

In light of the broad scope of discovery, Defendants violation of the March 28, 2017

deadline in the February 28, 2017 Preliminary Conference Order and Defendants continuing

breach of its discovery obligations, KCM respectfully submits that it is entitled to an order under

CPLR 3124 compelling New Ram to serve its Response to Plaintiffs First Notice of Discovery

and produce the documents requested therein.

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B. New Ram Should Be Compelled To Serve Its Statement Of Names


And Addresses Of Witnesses And Statements Of Onnosing Parties

Pursuant to the Preliminary Conference Order, the parties also were required to exchange

names and addresses of all witnesses and statements of opposing parties and photographs.

(See Geller Aff, ^ 16 & Ex. 7). KCM has served a Statement complying with this requirement,

but New Ram has failed to do so, despite the Preliminary Conference Orders April 3. 2017

deadline. (Id. ,1[ 21 & Ex. 71. Consistent with the Preliminary Conference Order, New Ram should

be compelled to serve its Statement of names and addresses of witnesses and statements of

opposing parties, if any.

CONCLUSION

All of the documents sought by this motion are material and necessary to KCMs claims

and prosecution of the action. New Ram has utterly 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 failure to object to Plaintiffs First

Document Request, New Ram should be compelled to serve its Response to Plaintiffs First

Document Request and produce the requested documents.

For the reasons set forth herein, in the accompanying Affirmation of Mitchell J. Geller, and

the exhibits annexed thereto, it is respectfully requested that KCMs motion to compel 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 statements of opposing parties,

if any, be granted in its entirety.

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Dated: May 4, 2017


New York, New York HOLLAND & KNIGHT LLP

31 West 52nd Street


New York, New York 10019
(212) 513-3200

Attorneys for Plaintiff


KCM Realty Company, L.P.

#51079283 v2

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