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Sanders Equities LLC v. Maldonado
Sanders Equities LLC v Maldonado 2025 NY Slip Op 30694(U) March 3, 2025 Supreme Court, Nassau County Docket Number: Index No. 605681/2022 Judge: Sharon M.J. Gianelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
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SUPREME COURT OF THE STATE OF NEWYORK COUNTf OF NASSAU - Commercial Division PartT Present: Hon. Sharon M.J. Gianelli x SANDERS EQUITIES LLC, NEXT MILLENNIUM Index No: 6o56Brlzozz REALTY, LLC, AERIAL WAY AND ROBBINS LLC, rz3 FROST ASSOCIATES L.P., r35 NORTH Motion Seq. oo5 BROADWAY LLC and 6g BLOOMINGDALE LLC, Decision and Order Plaintiffs,
-against-
KEVIN MALDONADO, KEVIN MALDONADO AND ASSOCIATES, P.C. dlblaKEVIN MALDONADO & ASSOCIATES d/b/a KEVIN MALDONADO & PARTNERS LLC, MELISSA MALDONADO, KEVIN MALDONADO and MELISSA MALDONADO, as TRUSTEES of THE KEVIN AND MELISSA MALDONADO TRUST, EAGLE LAKE HOLDINGS LLC, BUSHMAN HILL REAL ESTATE LLC,567 FOUR MILE POINT LLC, WM WELCH ENTERPRISES LLC, BLUE STONE AND MULCH LLC, WMW HOLDINGS LLC, and HART MANSION LLC,
Defendants. x Papers submitted: Plaintiffs Notice of Motion X Plaintiffs Affirmation in Support {Exhibits x Plaintiffs Memorandum of Lawin Support x Plaintiffs Supplemental Affirmation in Support X Defendants Opposition Letter X Plaintiffs Affirmation in Reply X
Upon consideration of the parties'submissions, the Court's ruling is set forth below.
This is Plaintiffs'motion (Mot. Seq. No. oo5) for an Order of the Court: (i) granting
Plaintiffs leave to renew the Decision and Order of the Court, dated October 7,2024,
and entered October g, zo24,to the extent it denied Plaintiffs' motion to strike the
Answer to Amended Complaint, Counterclaims, and Third-Par$ Complaint, filed
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September 8, zozg, of Defendants Kevin Maldonado ("Maldonado"), and Kevin
Maldonado andAssociates, P.C. dlbla Kevin Maldonado &Associates d/b/a Kevin
Maldonado & Partners LLC ("the Firm"), "with leave granted herein for movants to re-
apply should Defendants fail to comply with this Decision and Order;" (ii) upon renewal,
pursuant to CPLR 3rz6(3), striking the Answer because of Maldonado and the Firm's
willful and contumacious failure to comply with the Disclosure Order and their
disclosure obligations; and (iii) precluding Maldonado and the Firm from using or
relying in this litigation upon any document or communication they have not produced
in disclosure.
The history and facts concerning this action have previously been recited in prior
Decisions and Orders concerning this legal malpractice claim.
By the Court's most recent Decision and Order, dated October 7,2024, and entered
October g,2cl24 (Mot. Seq. No. oo4; Attachment *r), the Court denied Plaintiffs'
motion to strike, but granted Plaintiffs leave to re-apply should Defendants Maldonado
and the Firm fail to comply with the Court's Decision and Order directing Defendants
Maldonado and the Firm to fully comply with all outstanding discovery concerning this
matter within thirfy (go) days from the date of entry of the October 9,2c.24 Decision
and Order.
Plaintiffs have filed this motion (Mot. Seq. No. oo5) asserting that Defendants
Maldonado and the Firm have failed to comply with the Court's October g,2oo24
Decision and Order (Mot. Seq. No. oo4).
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Defendants Maldonado and the Firm's only response to Mot. Seq. No. oo5 is a letter
from Defendant Kevin Maldonado, dated January 29,2o2S (Attachment #z), in which
he requests that the Court consider it his opposition to Plaintiffs' Mot. Seq. No. oo5, and
which states in pertinent part:
KeuinMaldonado, Esq.
5 Hickory Hill Road C: (StB) 727-8t49 Windham, NY tz4g6 KeuinM o.ldonado 6 a @A aho o. com
January 29,2o2S
Via ECF Filing Hon. Sharon M.J. Gianelli
Re: Sanders Equities LLC et alu. Keuin Maldonado et al. 6o18t/zozz Motion Sequence q
Dear Judge Gianelli:
Plaintiffs hauefiled a motton (Motion Seq. S), to renew the Motion to Preclude (Motion Seq. +). My opposition to Motion Seto. 4 is filed at Docket Entries to5 and to6. These entries haue been sealedby the Court. Please accept Docket Entries tog and to6, as well as mA letter to the Court dated January 77, 2o2S futtached hereto) o.s mA opposition to the r eneu ed motion.
Thankyoufor Aour consideratton of this request.
Sincerely,
/s KeutnMaldonado
Despite his assertion that "Docket entries ro5 and 106" are sealed, Defendant Kevin
Maldonado and the Firm failed to provide along with this January 29,2o2S letter, the
documents entered under "Docket Entries rO5 and 106", which are Defendant
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Maldonado and the Firm's documents. Further, no attached letter dated January tt,
2o21was found.
In connection with their Mot. Seq. No. oo5, Plaintiffs submitted a thorough set of
papers, including Plaintiffs' "Affirmation of Good Faith and in Support of Motion for
Leave to Renew" with exhibits (Attachment #3), a thorough and well-reasoned
Memorandum of Law in Support of the Motion (Attachment #4), as well as an
Affirmation in Reply (Attachment #5). The Court has reviewed and considered the
parties' submissions, and the Court has credited Plaintiffs'.
Notwithstanding the numerous warnings and Orders, Defendants Maldonado and the
Firm have repeatedly refused and continue to refuse to comply with Plaintiffs'lawful
discovery demands, as well as the Court's Decisions and Orders - most recently, the
Court's Decision and Order dated October T,2c.24 and entered October 9,2c.24 (Mot.
Seq. No. oo4).
Plaintiffs have set forth a lengthy and thorough recitation of the history of this matter,
together with prior Decisions and Orders of the Court, as well as a persuasive argument
for the motion relief sought. Defendants Maldonado and the Firm have failed to do so.
Upon review and consideration of the papers submitted, the Court credits Plaintiffs'
submissions and find that they align with the Court's record of this action, as well as the
law.
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As argued in Plaintiffs' motion, "A motion for leave to renew'shall be based upon new
facts not offered on the prior motion that would change the prior determination"'
(Deutsche BankNatl. Tr. Co. u Cincu, zz8 AD3d 825,826 [zD Dept zoz4]). Further,
"where a movant makes the requisite showing of new facts that would change the prior
determination, it is reversible error to deny renewal (Deutsche BankNotl. Trust Co. u.
-Atrisscn, z3o AD3d r1o5, uo8 [2d Dept 2024]). The new fact here is that Defendants
Maldonado and the Firm failed to comply with the Court's most recent Decision and
Order entered October 9,2c.24 (Mot. Seq. No. oo4), which is illustrative of Defendant
Maldonado and the Firm's continued willful and continuing pattern of ignoring and
failing to comply with Notices for Discovery and Inspection, as well as the Court's
Decisions and Orders. Defendants Maldonado and the Firm have been given more
opportunities to comply than may have been reasonable given Defendants Maldonado
and the Firm's conduct throughout this litigation, and yet they have repeatedly failed to
do so. Renewal is warranted.
Defendants Maldonado and the Firm have not only been afforded numerous
opportunities to comply with the Court's Orders, including three (g) final warnings,
Defendants Maldonado and the Firm have repeatedly and intentionally failed to comply,
without reasonable explanation. An assessment of Defendants Maldonado and the
Firm's actions to date lead to the reasonable conclusion that the conduct is intentional,
deliberate, evasive, uncooperative, designed to delay and avoid, and "willful and
contumacious".
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CPLR gp6(3) provides in pertinent part: Penalttesfor refusal to comply uith order or to disclose. If any party, or a person tuho at the time a depositton is taken or an examinatton or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose informationuthich the courtfinds out to haue been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: G) an order striking out pleadings or parts thereof, or staying further proceedings untilthe order is obeyed, or dfsmfssing the action or any part thereof, or rendering a judgment by defoult against the disobedient party.
Upon consideration of all papers submitted, together with the history of this action,
including Defendants Maldonado and the Firm's repeatedly violative conduct, not only
is renewal warranted, but so is the striking of the Answer based on Defendants
Maldonado and the Firm's willful and contumacious refusal to comply with required
discovery.
Accordingly,
It is
ORDERED, that Plaintiffs'motion (Mot. Seq. No. oo5) for an Order of the Court
granting Plaintiffs leave to renew the Decision and Order of the Court, dated October 7,
2024, and entered October g,2c.24 (Mot. Seq. No. oo4), to the ertent it denied
Plaintiffs' motion to strike the Answer to Amended Complaint, Counterclaims, and
Third-Parry Complaint, filed September 8,2c.29, of Defendants Kevin Maldonado
("Maldonado"), and Kevin Maldonado andAssociates, P.C. dlbla Kevin Maldonado &
Associates dlb/aKevin Maldonado & Partners LLC ("the Firm"), is Granted; and
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It is
ORDERED, that Plaintiffs'motion (Mot. Seq. No. oo5) for an Order of the Court,
striking the Answer pursuant to CPLR Stz6(g) because of Defendants Maldonado and
the Firm's willful and contumacious failure to comply with the Disclosure Order (Mot.
Seq. No. oo4) and their disclosure obligations throughout the litigation, is Granted; and
It is
ORDERED, that Plaintiffs'motion (Mot. Seq. No. oo5) for an Order of the Court
precluding Defendants Maldonado and the Firm from using or relying in this litigation
upon any document or communication they have not produced in disclosure, is Granted.
This constitutes the Decision and Order of the Court.
Dated: Mineola, New York March S,2o2S
Sharon M Court
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StiPllHMt"L C]OUKf OIi"I'HIi S:tNl'hl []Ir NIi\,vYtlRl( COLiNIIY 0F NI\SSALJ -.. Conrmercial Divisiou linrt 7 Prersent: [{on. Straron 11.,}, Giauelli Y sAN DIiItS EQUII] ES LLC, i.( tilxl' tU I LLFlNlil iiM Intlex No: 6o{;68ll zoza R.Lir\[.T'Y, l,i,C. Alill.! 4I., WAY AN D I{.OBI]INS I.,i,C. r23 IIROST' ASSOCINI'IIS L.P., r3S NORl'l{ Ivlotion Stlq. No. oo4 BROAD\,!-AY LI,C and 6g BLOOMINGDAI,E LI,C, l)t.rcision and Order lllaintiflls,
-against-
K hlvl N N{AIJON.,:tI.)(}, K.h.VIN i\{Al,DONADtl AN I) ASSOCIAI'IIS, P.C. dibia KI:IVIir- 14AI.,i)t)NAl)0 & ASSOCIATES d,r[7u KhVIN MALDONAD0 & PAR'IN FltlS LLC. I{ IiL I SSi\ IM ALDrf, Ni\DO, KIiVI N Iv{Al. llC) NADO a nd &{ [,] t.I SSA N{,{[.L}ONI\D0. as llltt.lS't'EIiS of 'fl'lI KIIVIN A.ND N'lEl,iSSA MALDON;\DC) lt'IttrS'f, II,AGI.li l.,A lil'l HOI,DlN(iS LLC, BUSHMAN I{ILL REAL iiS,L\TE LI,C, 567I?OUR h,II I.,h: POINT I,LC, WN{ WEI.,C}I IiNTERPII.ISES LLC, BI,Liii S1.0I(E AND [4UT,C}I I.i,C. \4If,,TW }{OLDINGS LLCI, and [{ARI'I\'IANSION LL.C,
Dei"endants. Y
Upon consirleration of papers sntrnritte,cl on thi-r nrotion, the CourL'.s ruling is set torth
bek;rt
This is Plaintiffs' motion fbr an C)xier of the Court, pursuattt to CI)].,R :1126(:l): striking
the Ansr.r,er to the,.\merncled Cornplaint, Counterclaim, and Thircl-Part,r Compiaint, filed
Septr:lmbpr 8, roz13 ol Defenctar*s Kerr.in Ntakionarlo ("1\laldclnado"), and K-evin
Nlalclonado and *\ssociates, Ir.C. d1b,;s Ker,iri Nlalclonado & Associates cl/br/a Kevirt
L,Ial<k:narl6 & Partneils L[,C ("the Firm"); or altert'ratir,r:lv, pnrsuant to CPLR 3126(?),
precluding lllaftir:nado and the firm trorn relying tlpon any tlncument-q in sr-rppolt of
I
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their d.efenses and coltnterclaim in this actinn; or alternativel-v, pursuant to CPLR 3t24,
cornpelling Maldonado aud the finn to prodnce clisclosure within a date ceftain to be -qet
by the Court.
1'he underly'ing Complaint herein concerns a legal malpractice claim by Plaintiffs
against Defendant Maldonado, a sole practitioner, lvho sened as a long-time attorney tcl
Plaintiffs in connection u'ith the o'rtning, managing and leasing of commercial r:eal
estate. Plaintiffs ailege. inter cslia, a multi-,v-ear pattern of excessire and fraudulent
biiling for lega) services r,vhictt r,r'ere allegedly never rendered.
The background/factual recitation set forth in movants'' "Affirrnation of Franklin C.
Mcltoberts in Support of Motion to Strike, to l')reciude, and/or to Cornirel" oomltort.s
with the Court's record.
Llpon due consideration, Defendant-s have sholvn themselves or,'erall to be evasive,
uncooperative, and dilatorl,. Striking and/or preclusion are drastic steps; and though
l)efendants have just about earned this outcome, the Court will nevertheless allow
Defendants one additional opportr'rnifv to hecome ful)1' compliant with all outstanding
discovery within the tirne frame rnandated below by the Court.
Aceordingl-v,
It is
ORDIII{BD, that Plaintiffs' motion for an Order of the Cnurt, pursuant to Ci'>LR:lrg6(3)
striking [he Answer to the Amended Complaint. Counterclairn, and 1'hird.*Parq'
,
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Ccxnplain,t, tiled Stq:tember B, zoe3 of l.)efenrjants l(eviu lvlnldontrdrl, ancl Kerin
Maldonaclo aurd As-strciates, P.C. dil-r/a Ker.in i\,kilclonado & Associates d/l:;'a Keviri
ivlaldonarclo & Partners LLC (Kevin Mald<lnado and the Firm), is Denie<l. at this time,
r.-ith ieave grantecl hc,rein ibr motant-s to re*rrppl,r'shoulti Dert'endanls fail to comply u,ith
this Decision and Older hereinl and
It i.s
ORDERED, that Plaintiffs'motion for an Order of thrr Cot.ut, pursuant to CPLR 3126(2),
precluding Del'end.ants Ker.in N{a}donacio, and Kevin lUaidonar.itt and Assoc.iates,l'.C.
aib/a Kevin Maldonado &.Associates ciib/a Kevin Mal<ionado & Partnels LLC (Kesin
Ivlaldonado and the Firm,), from relving upon any'<locuments in support of t'heir
deti:nses arnr{ eountercrlaim in this actit;n, is l)enied, at this time, i1ri1h lsarre granted
herein trlr meil,ants to re-ilppl}. should Detendarrts tiril to r:ou:plv rtith this Decision and
Order hererin; ancl
It is
ORDERkI,D, that Plaintiffs' rnr:tion for an Or<ler of the Court, pursnant to CI'I,R 3124,
cr:rgprrlling Def.endants Kevin Nfaldonado, and Ker.in Maldonatlo and r\s;sociates, l'.C.
d/b/a Ker.in l!,Ialdonaclo & -{ssociates di bia Kevin Malclor:ado &. I}aftners LLCI (Kevirr
N,lulcl:naclr: il.ntl the liir:m) to protiuce disclosur:e r,vithin a date certain to l:e set b1'the
Court, is Grantul; ar:.ri
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It is
ORD.h:ltED, that Defendants Kev-in Maldonac{o, anrl Kevin Ivlaldonado and Associates,
P,C. dltr/a Ker,in N{aldonado & Associates d/bia Kevin Maldonado & Partners LLC
(Kerin Maldonado and the Firm) shall fully compiy with all outstanding discovery'
concerniug this matter within thirty (go) days from the date of entry of this Decision
and Order; and
It is
OI{DERED, that the partie.s shall appear for a Compliance Conference on Deceurher 9,
2024 at 11:OO a.m.
Anl,application not specitically ruled upon herein is denied.
This constitutes the Decision and Order of this Court.
Date: Llineola. Ner.v York October 7. zoz4
Court
ENTERED Oct 09 2024 NASSAU COUNTY COUNTY CLERK'S OFFICE
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Kevin Maldonado, Esq. 5 Hickory Hill Road C: (518) 727-8149 Windham, NY 12496 KevinMaldonado64@yahoo.com
January 29,2025
Via ECF Filing Hon. Sharon M.J. Gianelli
Re: Sanders Equities LLC et al v. Kevin Maldonado et al. 60581/2022 Motion Sequence 5
Dear Judge Gianelli
Plaintiffs have filed a motion (Motion Seq. 5), to renew the Motion to Preclude (Motion Seq. 4). My opposition to Motion Seq. 4 is filed at Docket Entries 105 and 106. These entries have been sealed by the Court. Please accept Docket Entries 105 and 106, as well as my letter to the Court dated January 11,2025 (attached hereto) as my opposition to the renewed motion.
Thank you for your consideration of this request.
Sincerely,
/S
Kevin Maldonado
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU x SANDERS EQUITIES LLC, NEXT MILLENNIUM : Index No. 60568112022 RE,ALTY, LLC, AERTAL WAY AND ROBBINS : LLC, 123 FROST ASSOCTATES L.P., 135 : NORTH Hon. Sharon M.J. Gianelli BROADWAY LLC and 69 BLOOMINGDALE : LLC, Motion Sequence No. 005 Plaintiffs, AFFIRMATION OF - against - GOOD FAITH AND IN SUPPORT OF MOTION KEVIN MALDONADO, FOR LEAVE TO RENEW KEVIN MALDONADO AND ASSOCIATES, P.C. d/b/a KEVIN MALDONADO & ASSOCIATES ffi/a KEVIN MALDONADO & PARTNERS LLC, MELISSA MALDONADO, KEVIN MALDONADO and MELISSA MALDONADO, as TRUSTEES of THE KEVIN AND MELISSA MALDONADO TRUST, EAGLE LAKE HOLDINGS LLC, BUSHMAN HILL RE,AL ESTATE LLC,567 FOUR MILE POINT LLC, WM WELCH ENTERPRISES LLC, BLUE STONE AND MULCH LLC, WMW HOLDINGS LLC, and HART MANSION LLC,
Defendants, :
---x FRANKLIN C. MCROBERTS, an attomey admified to practice law in the courts of the
State of New York, affirms under penalty of pe{ury:
l. I am a Partner with the law firm of Farrell Fritz, P.C., attorneys for Plaintiffs.
2. I have personal knowledge of the facts in this Affitmation.
3. I respectfully submit this Affirmation in support of Plaintiffs' motion for an Order,
pursuant to CPLR 2221 (e):
(i) granting Plaintiffs leave to renew the Decision and Order of the Hon. Sharon M.J.
Gianelli, dated October 7,2024, and entered October 9,2024 (the "Disclosure
Order"), to the extent it denied Plaintiffs' motion to strike the Answer to Amended
I
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8. The sequence of recent events are as follows. On October 9,2024, immediately
after the Court issued the Disclosure Order (see F;x.30), I sent Maldonado and the Firm a crystal-
clear letter (see 8x.36), attached to which were copies of the Disclosure Order and all unresolved
disclosure demands, warning Maldonado and the Firm as follows:
On October 7, 2024, the Hon. Sharon M.J. Gianelli issued, and on October 9, 2024, the Clerk of the County of Nassau entered, a Decision and Order granting the Sanders Entities' motion to compel production of documents and information from you and your law firm. Exhibit "f is a copy of the Decision and Order with Notice of Entry.
Pursuant to the Decision and Order, you and your law firm have been ordered as follows:
ORDERED, that Defendants Kevin Maldonado, and Kevin Maldonado and Associates, P.C. d/b/a Kevin Maldonado & Associates d/b/a Kevin Maldonado & Partners LLC (Kevin Maldonado and the Firm) shall fully comply with all outstanding discovery concerning this matter within thirty (30) days from the date of entry of this Decision and Order. . . .
Exhibits "2r" "3r" "4roo and"5" are copies of the Sanders Entities' outstanding, unresolved disclosure demands to you and your law firm.
In accordance with the Decision and Order, you and your law firm must provide full and complete written responses, and all documents, electronically-stored information, physical evidence, and written information responsive to, the foregoing disclosure demands no later than the Court-ordered deadline of November 8, 2024.
Should you and your law firm fail to comply with the Decision and Order, we will be forced to re-apply to the Court for more severe disclosure sanctions, and we reserve the right to do so without further notice to you or your law firm. Pursuant to 22 NYCRR 202.7 (c), please consider this letter, together with our prior letter to you, dated February I,2024, to be our good faith effort to resolve this extremely longstanding disclosure dispute without the need for further motion practice.
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9. The 30-day, frrst .final warninq the Court set forth in the Disclosure Order for
Maldonado and the Firm to cure their disclosure defaults expired on Novemb er 8,2024 (see Exs.
30 and 31).
10. On November 9, 2024, the day after the Court's first final warninq expired (see
Exs. 30 and 31), but before Plaintiffs had an opportunity to file their renewal motion, Maldonado
proffering his same, longstanding excuse that he produced all relevant disclosure pre-lawsuit (see
Ex.40).
1 1. This Court already previously rejected this argument, an issue thoroughly litigated
and resolved against Maldonado and the Firm on the prior motion (see Exs. 2,23,28, and 30).
12. Nonetheless, the Court, in response to Maldonado's untimely letter (see Ex. 40), scheduled a Compliance Conference on November 13 , 2024 (see Ex. 4l).
13. On November 12,2024,I wrote the Court a letter, in advance of the Compliance
Conference, to apprise the Court of my October 9,2024letter to Maldonado and the Firm (see Ex.
42; compareEx.39).
14. At the Compliance Conference, the Court once again generously extended Maldonado and the Firm yet another, second .final warnins to comply with all of Plaintiffs'
outstanding disclosure demands, this time by no later than January 3, 2025, by conducting a
"thorough search" for both "paper and electronic" documents; responding to all written disclosure
demands "line-by-line"; and producing all outstanding paper and electronic disclosure, even if produced pre-lawsuit (see Ex. 44).
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15. During the Compliance Conference, Maldonado revealed for the first time that he
personally made audio recordings of other lawyers for Plaintiffs in which they discuss Plaintiffs'
legal matters and, notably, the transfer of Maldonado's files for Plaintiffs to those attorneys.
16. On December 2,2024,I wrote to the Court to memorialize the rulings of the Court
from the Compliance Conference and to alert the Court of a Fourth Notice for Discovery and
Inspection that my firm served on Maldonado and the Firm on November 19, 2024 (see Exs. 43-
44).
17. The Fourth Notice for Discovery and Inspection contained a single, narrow
disclosure demand for production of the audio recordings made by Maldonado (see Ex. 43).
18. Maldonado and the Firm's response to the Fourth Notice for Discovery and
Inspection was due no later than December 10, 2024. Maldonado and the Firm ignored that
deadline and failed to produce the audio recordings.
19. On January 3, 2025, the same day the Court's second -final warninq expired (see
Ex. 44), Maldonado wrote the Court and offered yet another excuse, this time stating that qfter the
Court issuing its second final warnins. he decided "to travel with my daughter as a coach for the
past three weeks." He wrote, "I will be back at home on Monday fJanuary 6,2025] and will focus
on the updated responses" (Ex. 45).
20. In response to Maldonado's latest excuse, on January 3,2025, the Court issued yet
another, third final warninq, this time extending the deadline to January 10,2025, writing:
The Court is in receipt of correspondence from Defendant Kevin Maldonado dated January 3,2025, requesting an adjournment of the deadline to respond and produce certain discovery in this action. Please be advised that the requested adjournment is granted only to the extent that the deadline is now January 10, 2025. No further extensions will be granted absent extenuating circumstances.
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(Ex.46).
21. In utter disrespect of the Court's excessively generous,/rq1, second. and third.final
warninqs. far more notice or opportunity to remedy disclosure defaults than most litigants could
ever hope to receive, much less a practicing lawyer like Maldonado, on January 10, 2025,
Maldonado and the Firm produced:
o No supplemental written response to the First Notice for Discovery and Inspection, dated August 3, 2022 (see Ex. 5);
o No documents or communications of any kind in response to the First Notice for Discovery and Inspection;
o No supplemental written response to the Second Notice for Discovery and Inspection, dated November 8, 2022 (see Ex. l4);
o No documents or communications of any kind in response to the Second Notice for Discovery and Inspection;
o No supplemental written response to the Third Notice for Discovery and Inspection, dated January 2,2024 (seeEx.32); and
o No documents or communications of any kind in response to the Third Notice for Discovery and Inspection.
22. In disregard of all of these disclosure devices, and in contempt of all of the Court's
repeated directives to comply with them, in his letter, dated January 10, 2025, Maldonado: (i)
explicitly refused to provide disclosure the Court already ordered him to produce many times; and
(ii) made objectively false misrepresentations of material fact in contravention of the Part 130,
claiming he produced disclosure he never, ever, provided(seeEx.47).
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23. In his letter, Maldonado flippantly refused to search for or produce disclosure this
Court already ordered him to produce many times, to wit:
. Regarding "Sanders Emails": "For me to spend . . . time resorting . . . emails is unnecessary
and unduly burdensome" (Ex. 47 at3);
o Regarding "Financial Records": "At this stage this type of information is not discoverable. This is the type of information they would be entitled to post judgment" (id. at 4); and
24. In his letter, despite barely avoiding in October 2024 the extreme sanction of striking of his Answer (see Ex. 30), Maldonado committed to producing exactly nothing in
response to the First, Second, or Third Notices for Discovery and Inspection.
25. Nor did he heed the Court's crystal-clear warning on November 13, 2024, to
conduct a "thorough search" for both "paper and electronic" documents; to respond to all written
disclosure demands "line-by-line"; and to produce all outstanding disclosure, even fproduced pre-
lawsuit (seeEx.47).
26. Instead, Maldonado offered the same excuses the Court has rejected since 2022, to
wit: (i) he already produced it; (ii) he has no duty to produce it; or (iii) both (see Ex.47).
27. Worse, in his letter, Maldonado wrote: "As part of my document production in this
case, the Electronic Case Files were produced . . . to the Farrell Fritz Law Firm on December 9,
2022" (Ex. 47 at 4). This is a lie.
28. Maldonado and the Firm never, U!, produced any disclosure to my firm of any
kind. Ever. Until January 10, 2025,when they produce the measly 18 files of Maldonado's creepy
audio recordings (see 8x.48), they never produced to my firm a single document, nor piece or
paper, nor electronic file, of any kind in disclosure.
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29. I hereby challenge Maldonado and the Firm to provide any evidence in opposition
to this motion that they provided disclosure to my firm on December 9,2022 (or any other time).
They are incapable of doing so. Because it never happened. False representations of material fact
are frivolous and warrant sanctions.
30. Three strikes you're out. Maldonado and the Firm have serially violated the Court's
disclosure orders for far, fartoo long.
31. As explained in the accompanying Memorandum of Law, denial of disclosure
sanctions under these circumstances would be reversible error.
32. Accordingly, based upon prior "leave granted" to "re-apply should Defendants fail
to comply with this Decision and Order" (Ex. 30 at 2-3), Plaintiffs now respectfully request that
the Court grant renewal of the Disclosure Order, and upon renewal, strike Maldonado and the
Firm's Answer for willful and contumacious failure to comply with the Disclosure Order and their
disclosure obligations.
WHEREFORE, forthe reasons explained in the accompanying Memorandum of Law, the
Court should issue an Order: (i) granting leave to renew the Disclosure Order; (ii) upon renewal,
striking the Answer; (iii) referring this matter to a Judicial Hearing Officer or Special Referee for
an inquest on damages; and (iv) granting such other and further relief as the Court deems just and
proper, including precluding Maldonado and the Firm from using or relying in this litigation upon
any document or communication they have not produced in disclosure.
Dated: January 11,2025
lsl ?,,nt&irc O, Franklin C. McRoberts
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CERTIFICATION OF COUNSEL
The foregoing Affirmation in Support of Motion to Strike, to Preclude, and/or to Compel
was prepared by computer using Microsoft Word. The total number of words in the document,
excluding the caption and signarure block is2,718. This certification complies with Rule 17 of the
Commercial Division Rules.
lsl 7,urt41a O, Franklin C. McRoberts
t2
FF\1 5086428.7 1a of 27 1') ^F 52 [* 27]
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --- sANDERS Eaurr;s rt., G.irrrri*t, I Index No. 60568112022 REALTY, LLC, AERIAL WAY AND ROBBINS LLC, : I23 FROSTASSOCIATES L.P., 135 NORTH : Hon. Sharon M.J. Gianelli BROADWAY LLC and 69 BLOOMINGDALE LLC, :
Motion Sequence No. 005 Plaintiffs,
- against -
KEVIN MALDONADO, KEVIN MALDONADO AND ASSOCIATES, P.C. d/b/a KEVIN MALDONADO & ASSOCIATES d/b/a KEVIN MALDONADO & PARTNERS LLC, MELISSA MALDONADO, KEVIN MALDONADO and MELISSA MALDONADO, as TRUSTEES of THE KEVIN AND MELISSA MALDONADO TRUST, EAGLE LAKE HOLDINGS LLC, BUSHMAN HILL REAL ESTATE LLC,567 FOUR MILE POINT LLC, WM WELCH ENTERPRISES LLC, BLUE STONE AND MULCH LLC, WMW HOLDINGS LLC, And HART MANSION LLC,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LBAVE TO RENEW
Franklin C. McRoberts James R. Maguire FARRELL FRITZ, P.C 400 RXR Plaza Uniondale, New York I 1556 (st6) 227-0700
Attorneysfor Plaintffi
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ll
PRELIMINARY STATEMENT ......... ..,..,.,....2
STATEMENT OF THE FACTS J
The Events Preceding the Prior Determination .................... J
The Disclosure Order... ..5
The New Facts that Would Change the Prior Determination 5
ARGUMENT 9
Point I
THE COURT SHOULD GRANT LEAVE TO RENEW 9
Point II
UPON RENEWAL, THE COURT SHOULD STRIKE THE ANSWER BECAUSE OF MALDONADO AND THE FIRM'S WILLFUL AND CONTUMACIOUS REFUSAL TO COMPLY WITH THE DISCLOSURE ORDER AND THEIR DISCLOSU RE OBLIGATIONS .......... 1l
coNCLUSION........... ............ 15
CERTIFICATION OF COUNSEL 27
I
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TABLE OF AUTHORITIES
Cases
225 Butler Assocs. v 225 Butler LLC, 208 AD3d 831 [2d Dept2022] t2
Deutsche Bank Natl. Trust Co. v Nissan, 230 AD3d 1105 [2d Dept2024] 9
Deutsche Bank Natl. Tr. Co. v Cincu, 228 AD3d 825 lzd Dept 2024) 9, ll
Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [st Dept 2010]........ ... l3
Henry v Atlantis Rehabilitation and Residential Healthcare Facility, LLC, 1 94 AD3d 1021 lzd Dept 202ll 12
HSBC Bank USA, N.A. v Branker, N.A., 177 AD3d 954,958 [2d Dept 2019] 10
Key Growth Invest LP v 1499 Fulton Realty, LLC, 228 AD3d 634 l2d Dept 2024l 9, l1
L. K. v City of New York, 2 1 0 AD3d 7 53 l2d Dept 2022) 71,12,13,14,15
Legal Servicing, LLC v Carty, 229 AD3 d s33 l2d Dept 2024l 9
Lynx Capital Partners of NJ, LLC v Bayes Capital, 217 AD 3d 571[st Dept 20231......... 13, 14
Rules
CPLR 222t........... 1,9
CPLR 3126........... 1,2,12
Regulations
22 NYCRR 202.7 7
22 NYCRR 1200 Rule 1.15[d] 1l
ll
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Plaintiffs Sanders Equities LLC, Next Millennium Realty, LLC, Aerial Way and Robbins
LLC, 123 Frost Associates L.P., 135 North Broadway LLC, and 69 Bloomingdale LLC (together,
the "Sanders Entities"), by their attorneys, Farrell Fritz, P.C., respectfully submit this
Memorandum of Law in support of their motion for an Order, pursuant to CPLR 2221 (e):
(i) granting the Sanders Entities leave to renew the Decision and Order of the Hon.
Sharon M.J. Gianelli, dated October 7, 2024, and entered October 9,2024 (the
"Disclosure Order"), to the extent it denied Plaintiffs' Motion to Strike the Answer
to Amended Complaint, Counterclaims, and Third-Party Complaint, filed September 8, 2023 (the "Answer"), of Defendants Kevin Maldonado
("Maldonado"), and Kevin Maldonado and Associates, P.C. d/bla Kevin
Maldonado & Associates d/b/a Kevin Maldonado & Partners LLC (the "Firm"),
"with leave granted herein for movants to re-apply should Defendants fail to
comply with this Decision and Order;"
(ii) upon renewal, pursuant to CPLR $ 3126 (3), striking the Answer because of
Maldonado and the Firm's willful and contumacious failure to comply with the
Disclosure Order and their disclosure obligations; and
(iii) granting such other and further relief as the Court deems just and proper, including
precluding Maldonado and the Firm from using or relying in this litigation upon
any document or communication they have not produced in disclosure.
I
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PRELIMINARY STATEMENT
"Defendants have shown themselves overall to be evasive, uncooperative, and dilatory. Striking and/or preclusion are drastic steps; and though Defendants have just about earned this outcome, the Court will nevertheless allow Defendants one additional opportunity to become fully compliant with all outstanding discovery within the time frame mandated below by the Court."
- Hon. Sharon M.J. Gianelli - (NYSCEF Doc. No. 170)
The Court issued this dire warning three warninqs ago.
ln defiance of this Court's crystal-clear, direct warning in its now-three-month-old Disclosure Order that Maldonado and the Firm had 'Just about earned" the severe sanction of
striking of their Answer - a fir;ljugl_u,str the Court generously provided despite no
requirement to do so - Maldonado and the Firm, instead of producing proper discovery, filed a
letter with the Court on the day a.fter the Court had permitted them to respond asserting the
meritless argument that they have already produced all responsive documents prior to the
commencement of this lawsuit.
After they did that, the Court generously gave them a second-final warning. The day the
second final waming expired, Maldonado and the Firm still failed to comply, and the Court gave
them yet another, excessively generous, thirdfinal warning.
Sure enough, the day the third.final warning expired, Maldonado and the Firm slili failed
to comply. For years this has gone on with no consequence. Enough. Three strikes you're out.
Maldonado and the Firm's willfulness, contumaciousness, and contempt of this Court's directives
has been laid bare. Based upon prior "leave granted" to "re-apply should Defendants fail to comply
with this Decision and Order" (NYSCEF Doc. No. 170), the Court should grant renewal, and upon
renewal, exercise its broad discretion to strike the Answer under CPLR $ 3126 (3).
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STATEMENT OF THE FACTS
The Events Precedinq the Prior Determiuation
More than two long years ago, on August 3, 2022, the Sanders Entities served upon
Maldonado and the Firm a Notice for Discovery and Inspection and lnterrogatories (see
Affirmation of Franklin C. McRoberts in Support of Motion for Leave to Renew, dated January
11,2025 ["McRoberts Aff."], Exs. 5 and 6). Initially, Maldonado and the Firm did not respond to
either (McRoberts Aff., Ex. 2,n B).
On September 12,2022, the Sanders Entities wrote to Maldonado to request a meet and
confer, but Maldonado did not respond to that letter either (id.,fln l4-15). On September 19,2022,
the Sanders Entities were forced to write the Court requesting a pre-motion conference (see
McRoberts Aff., Ex. 8).
On October 15, 2022, Maldonado wrote to the Court announcing that the Firm was
"shutting down" (McRoberts Aff., Ex. 2, n D). In response, the Sanders Entities wrote to
Maldonado and the Firm reminding Maldonado of his obligation to maintain accounts and records,
but Maldonado again did not respond to that letter (id., fllT20-21).
On October 19,2022, the parties appeared for a preliminary conference, and the Court
issued a Preliminary Conference Order ordering Maldonado and the Firm to respond to the First
Notice for Discovery and Inspection and to produce responsive documents by December 19,2022
(see McRoberts Aff., Ex. 13).
On November 8, 2022, the Sanders Entities served a Second Notice for Discovery and
Inspection (McRoberts Aff., Ex. l4).
On Decemb er 9, 2022, Maldonado and the Firm responded to the Sanders Entities' First
Notice for Discovery and lnspection, Second Notice for Discovery and Inspection, and
J
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Interrogatories, but refused to produce a single document; raised baseless, boilerplate objections
to the demands; and refused to produce the laptop on which Maldonado claimed to perform all
legal work for the Sanders Entities (McRoberts Aff., Ex. 2,ln 27 -29 and Exs. 15, 16, and I 7).
On December 19, 2022, the Sanders Entities wrote Maldonado and the Firm another letter
demanding that they remedy their deficient responses (McRoberts Aff., Ex. l8). This letter also
went unanswered (McRoberts Aff., Ex. 2,n31).ln the weeks that followed, Maldonado refused
to respond to any of the Sanders Entities' attempts to meet and confer (id.,n 32). When Maldonado
finally agreed to a January 6,2023 meet and confer, he then failed to attend and was unreachable
forthe entire day (id., fl 33).On January 9,2023, the Sanders Entities again wrote to the Court,
seeking a pre-motion conference so that the Court could address Maldonado's deficiencies (see
McRoberts Aff., Ex. 19).
On June 1,2023, after receiving permission from the Court, the Sanders Entities filed their
motion to strike Maldonado and the Firm's Answer (McRoberts Aff., Ex. 2, fl 38). While the
motion was pending, the Court granted the Sanders Entities leave to file a Verified Amended
Complaint, which the Sanders Entities filed on June 28, 2023 (see McRoberts Aff., Ex. 2l). Later,
Maldonado and the Firm filed their Answer to the Amended Complaint (McRoberts Aff.,Ex.22).
The Court then directed the Sanders Entities to withdraw and re-file their pending motion to strike
the original Answer as a new motion directed at the Answer to the Amended Complaint
(McRoberts Aff., Ex. 28). On November 2, 2023, the Sanders Entities re-filed their motion to
strike, to preclude, or to compel (see McRoberts Aff., Exs. l, 2, and 28). Maldonado declined to
file papers in opposition to the re-filed motion (see McRoberts Aff', F,x.29).
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The Disclosure Order
After more than two years of dogged, but unsuccessful efforts to obtain disclosure from
Maldonado and the Firm, on October 9, 2024, the Court finally issued the Disclosure Order
(McRoberts Aff., Ex. 30). In the Disclosure Order, the Court issued its fir$rtnqlwqratag, holding
that "Defendants have shown themselves overall to be evasive, uncooperative, and dilatory" and
"have just about earned" striking of their pleading (id. at2).
Despite this, the Court denied the Sanders Entities' motion to strike the Answer to allow
Maldonado and the Firm "one additional opportunity to become fully compliant with all
outstanding discovery" within "thirty (30) days from the date of entry of his Decision and Order"
(id. at2,4).
The Court granted the Sanders Entities leave "to re-apply should Defendants fail to comply
with this Decision and Order herein" (id. at 3). The 30-day time frame for the Court's -first -final
warning to Maldonado and the Firm expired on November 8,2024.
The New Facts that Would Chanse the Prior Determination
On January 2, 2024, while the prior disclosure motion was pending and undecided, the
Sanders Entities served a third Notice for Discovery and Inspection upon Maldonado, which
Maldonado again ignored (see McRoberts Aff., Ex. 32), prompting the Sanders Entities on
February 1,2024 to send Maldonado yet another letter seeking compliance, which Maldonado yet
again ignore d (see McRoberts Aff., Ex. 36), forcing the Sanders Entities to send letters to the Court
seeking its intervention on February 16,2024 and May 23,2024, both of which Maldonado once
again ignored (see McRoberts Aff., Ex. 37 and 38).
On January 8,2024, Maldonado filed a motion to disqualify Farrell Fritz, P.C., attaching
to his moving Affidavit emails from many, many years ago responsive to the Sanders Entities'
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First and Second Notices for Discovery and Inspection, proving the objective falsity of
Maldonado's allegation he and the Firm lack responsive records (see McRoberts Aff., Exs. 33, 34,
and 35).
On October 9, 2024, after entry of the Disclosure Order, the Sanders Entities sent
Maldonado and the Firm yet another letter, explicitly detailing their obligations under the
Disclosure Order (see McRoberts Aff., Ex. 39).
The letter warned:
On October 7, 2024, the Hon. Sharon M.J. Gianelli issued, and on October 9, 2024, the Clerk of the County of Nassau entered, a Decision and Order granting the Sanders Entities' motion to compel production of documents and information from you and your law firm. Exhibit '(1" is a copy of the Decision and Order with Notice of Entry.
Pursuant to the Decision and Order, you and your law firm have been ordered as follows:
ORDERED, that Defendants Kevin Maldonado, and Kevin Maldonado and Associates, P.C. d/b/a Kevin Maldonado & Associates dlbla Kevin Maldonado & Partners LLC (Kevin Maldonado and the Firm) shall fully comply with all outstanding discovery concerning this matter within thirty (30) days from the date of entry of this Decision and Order . . . .
Exhibits 42r" ,"3)"'(4r" and"5" are copies of the Sanders Entities' outstanding, unresolved disclosure demands to you and your law firm.
In accordance with the Decision and Order, you and your law firm must provide full and complete written responses, and all documents, electronically-stored information, physical evidence, and written information responsive to, the foregoing disclosure demands no later than the Court-ordered deadline of November 8, 2024.
Should you and your law firm fail to comply with the Decision and Order, we will be forced to re-apply to the Court for more severe disclosure sanctions, and we reserve the right to do so without
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further notice to you or your law firm. Pursuant to 22 NYCRR 202.7 (c), please consider this letter, together with our prior letter to you, dated February 1,2024, to be our good faith effort to resolve this extremely longstanding disclosure dispute without the need for further motion practice.
(McRoberts Aff.,1T8 and Ex. 36).
Maldonado and the Firm refused to respond to the Disclosure Order or the leffer the Sanders
Entities' counsel sent requesting Maldonado and the Firm's compliance with the Disclosure Order
(see McRoberts Aff., Ex. 39). Instead, on November 9,2024, Maldonado and the Firm filed a letter
to the Court, the day a-fter the first -/inal warning in the Disclosure Order lapsed (McRoberts Aff.,
Ex. 40). In that leffer, Maldonado and the Firm asserted that they have no additional documents to
produce because they already transferred all responsive documents to another law firm.
The Court was prompted by Maldonado's letter to schedule a Compliance Conference on
November 13,2024 (McRoberts Aff., Ex. 41). During the conference, the Court gave Maldonado
and the Firm a generous, second .final warning to comply with all of Plaintiffs' outstanding
disclosure demands by conducting a "thorough search" for both "paper and electronic" documents,
responding to all written disclosure demands "line-by-line," and producing all outstanding paper
and electronic disclosure, even y'produced pre-lawsuit, by no later than January 3,2025. These
orders were memorialized in a letter from Plaintiffs to the Court on December 2,2024 (McRoberts
Aff., Ex.44).
Further, during the Compliance Conference, Maldonado, whether inadvertently or not,
disclosed that he had personally made audio recordings of discussions that he had with the Sanders
Entities' other attorneys in which they discussed the Sanders Entities' legal matters and the transfer
of Maldonado's files to those attorneys. The Sanders Entities then served a Fourth Notice for
Discovery and Inspection upon Maldonado and the Firm on November 19,2024, demanding that
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Maldonado and the Firm produce only those audio recordings discussed at the Compliance
Conference (McRoberts Aff., Ex. 43). Maldonado and the Firm had until December 10,2024 to
comply with that disclosure, but they failed to do so (id ).
On January 3, 2025, the same day the Court's second .final warning expired (see Ex. 44),
Maldonado wrote the Court a letter offering yet another excuse, this time stating that a.fter the
Court issuingits second-final warning, he chose instread of complying with the Court's second
/inal warning, "to travel with my daughter as a coach for the past three weeks." He wrote, "I will
be back at home on Monday [January 6,2025] and will focus on the updated responses" (Ex. a5).
In response to Maldonado's latest excuse, on January 3,2025, the Court issued yet another,
third /inal warning, this time extending the deadline to January 10,2025, writing:
The Court is in receipt of correspondence from Defendant Kevin Maldonado dated January 3,2025, requesting an adjournment ofthe deadline to respond and produce certain discovery in this action. Please be advised that the requested adjournment is granted only to the extent that the deadline is now January 10,2025. No further extensions will be granted absent extenuating circumstances.
(Ex.46).
In utter disrespect of the Court's excessively generous, fi61tr, second, and third -final
warnings, far more notice or opportunity to remedy disclosure defaults than most litigants can ever
hope to receive, certainly for longtime litigator like Maldonado, on January 10,2025, Maldonado
and the Firm explicitbt rqfused to produce anything but just l4 audio recordings Maldonado
secretly made like a spook in the shadows, butno actual disclosure of any kind (see Exs.47 and
48). Based upon prior "leave granted" to "re-apply should Defendants fail to comply with this
Decision and Order" (Ex. 30 at 2-3), Plaintiffs now respectfully request that the Court grant
renewal of the Disclosure Order, and, upon renewal, strike Maldonado and the Firm's Answer for
their willful, contumacious, multi-year refusal to comply with their disclosure obligations.
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ARGUMENT
Point I
THE COURT SHOULD GRANT LEAVE TO RENEW
"A motion for leave to renew 'shall be based upon new facts not offered on the prior motion
that would change the prior determination"' (Deutsche BankNatl. Tr. Co. v Cincu,228 AD3d825,
826l2dDept2024l [quoting CPLR 5 222r [e] [z]).
Where a movant makes the requisite showing of new facts that would change the prior
determination, it is reversible error to deny renewal (Deutsche Bank Natl. Trust Co. v Nissan,230
AD3d I 105, 1108 [2d Dept2024]; see e.g. Legal Servicing, LLC v Carty,229 AD3d 533,534 lzd
Dept 20241["Ordered that the order . . . is reversed . ., on the law, [and] that branch of the
defendant's motion which was for leave to renew . . . is granted"]).
Where a court previously granted leave to renew, the movant need not demonstrate a
"reasonable justification" for not presenting the new facts on the prior motion (see e.g. Key Growth
Invest LP v 1499 Fulton Realty, LLC,228 AD3d 634, 635 [2d Dept 2024] ["Since the court had
denied plaintiff s prior motion without prejudice to renew, the plaintiff was not required to
demonstrate a reasonable justification for its failure to present alleged new facts on the prior
motion"]).
Here, the Sanders Entities sufficiently demonstrated new facts that would change the prior
determination (see McRoberts Aff., lJ 5 and Exs. 32-44).
Specifically, after the Sanders Entities filed their prior motion, but before the Disclosure
Order was rendered, they served upon Maldonado another Notice for Discovery and Inspection,
which he totally ignored; and when the Sanders Entities wrote him a letter seeking to secure his
compliance, he ignored that request as well; and when the Sanders Entities were forced to send not
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one, but two requests to the Court for assistance, Maldonado ignored both of those requests, as
well (see McRoberts Aff., fl 5 and Exs. 32,36,37, and 38).
Moreover, after the Court issued its Disclosure Order, Maldonado and the Firm deliberately
ignored the Sanders Entities' attempt to obtain discovery pursuant to the Court's Order (see
McRoberts Aff., !J 5 and Ex. 39). Maldonado and the Firm ignored both the Disclosure Order and
the Sanders Entities' letter, refusing to produce a single document in response since the Court
ordered them to do so in the Disclosure Order (see McRoberts Aff., flfl 6-l I and Exs. 30, 31, and
3e).
Instead, Maldonado and the Firm wrote an eleventh-hour letter to the Court in an attempt
to stave off the Court from striking their Answer. Their attempt fails for two reasons: First, just
because Maldonado and the Firm argue that they have produced all responsive documents prior to
the Sanders Entities commencing suit does not absolve them of the obligation to comply with
disclosure obligations during the course of the litigation. "When the response to a discovery
request is, in effect, that there are no responsive documents within the party's custody, possession,
or control, that party must provide a detailed statement, under oath, . . . setting fonh the past and
present status of the relevant documents; where they were kept;what efforts, if any, were made to
preserve them; . . . and the means and methods used to conduct a search for them" (HSBC Bank
USA, N.A. v Branker, N.A., 777 AD3d 954,958 [2d Dept 2019]). Maldonado and the Firm have
not done anything to show that no additional responsive discovery exists other than assert it in a
conclusory manner (see McRoberts Aff., Ex. 40).
Regardless of the merits of Maldonado's argument, Maldonado's pre-lawsuit production
is inadequate because it does not include responsive documents that, pursuant to the ethical rules,
must exist. For example, the ethical rules require Maldonado and the Firm to maintain billing
l0
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records for at least seven years (22 NYCRR 1200 Rule l.15tdl). Such records have not been
produced as part of Maldonado and the Firm's pre-lawsuit disclosure. As a result, during the
Compliance Conference on November 13, 2024,the Court ordered Maldonado and the Firm to
comply with all outstanding disclosure obligations even if produced pre-lawsuit (McRoberts Aff.,
8x.44).
Lastly, while the Sanders Entities need not proffer a reasonable justification for not
presenting these facts on the prior motion because the Court previously granted them leave to
renew (see Key Growth Invest LP v 1499 Fulton Realty, LLC,228 AD3d at635), the Sanders
Entities could not have possibly alleged the fact of Maldonado and the Firm's failure to comply
with the Disclosure Order because that fact only arose after entry of the Disclosure Order.
Therefore, the Sanders Entities demonstrated "new facts not offered on the prior motion
that would change the prior determination"' (Deutsche Bank Natl. Tr. Co. v Cincu,228 AD3d at
826). The Court should grant leave to renew.
Point II
UPON RENEWAL, THE COURT SHOULD STRIKE THE ANSWER BECAUSE OF MALDONADO AND THE FIRM'S WILLFUL AND CONTUMACIOUS REFUSAL TO COMPLY WITH THE DISCLOSURE ORDER AND THEIR DISCLOSURE OBLIGATIONS
A court will infer that a defendant's conduct was "willful and contumacious" warranting
the striking of its answer where the defendant engaged in "either the repeated failure to respond to
demands or comply with discovery orders, without demonstrating a reasonable excuse for these
failures, or the failure to comply with court-ordered discovery over an extended period of time"
(L. K. v City of New York,2l0 AD3d 753,754 [2d Dept 2022]).
Where a plaintiff makes a showing of willful and contumacious refusal to comply with
court-ordered disclosure, it is reversible error to deny its motion to strike defendant's answer:
ll
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a L.K. v City of New York,2l0 AD3d at 753-54 ["Ordered that the order is reversed [and]
that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the
defendants' answer is granted, the answer is stricken, and the matter is remitted . . . for an
inquest on the issue of damages"];
a 225 Butler As,soc.r. v 225 Butler LLC,208 AD3d 831, 834 [2d Dept 2022) ["Here, contrary
to the Supreme Court's assessment, the defendants' behavior was willful and contumacious. The tenant demonstrated that the defendants repeatedly failed to comply
with court-ordered discovery over an extended period of time, and the couft itself found
that the defendants offered inadequate explanations for their failures to comply. Under the
circumstances presented here, we find that the court should have granted that branch of the
tenant's motion which was pursuant to CPLR 3126 to strike the defendants' answer"]
[quotations and brackets omitted]; and
a Henry v Atlantis Rehabilitation and Residential Healthcare Facility, LLC,194 AD3d 1021,
1023l2dDept202ll ["Here, the plaintiffestablished that the defendants failed to comply
with its demand for discovery and inspection" for "approximately 2Yz years . . . . Under
these circumstances, the Supreme Court should have inferred that the defendants' repeated
failure to fully respond to the plaintiffls discovery demands and to comply with the court's
orders without an adequate explanation, was willful and contumacious. Thus, the court
improvidently exercised its discretion in granting that branch of the plaintiffs motion
pursuant to CPLR 3126 which was to strike the defendants' answer only to the extent of
precluding the defendants from introducing certain evidence at trial"]).
In addition, a court is not required to issue a "'last chance'warning or order in all cases
before exercising its discretion to strike a pleading," but when it does, a party's "continuing
t2
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disregard of his discovery obligations warrant[s] the court's striking the answer, and no further
warning [is] required" (Fish & Richardson, P.C. v Schindler,75 AD3d 219,22213 [st Dept
20 1 0l).
Here, the conduct of Maldonado and the Firm can only be described as willful and
contumacious. From the inception of this case, Maldonado and the Firm have been noncompliant;
almost impossible to contact; and indifferent to the outcome of this case. Namely, Maldonado and
the Firm have failed to respond to letter after letter and request after request (see McRoberts Aff.,
Ex.2).
Not only did the Court issue a.fiL;!-frnabv-arning on October 9, 2024, it issued a second
final warning during the Compliance Conference, and a third final warning on January 3,2025,
but it also afforded Maldonado and the Firm yet another final warning to comply with all
outstanding discovery at the Compliance Conference on November 73, 2024. However,
Maldonado and the Firm exploited the Court's utmost generosity and ignored all three - rtu!,
second, and third final warnings. They have still not produced any documents in response to the
Disclosure Order or the Court's orders discussed at the Compliance Conference (McRoberts Aff.,
lT 20). Their conduct is clearly both "a repeated failure to respond to demands or comply with
discovery orders, without demonstrating a reasonable excuse for these failures" and "failure to
comply with court-ordered discovery over an extended period of time" (L.K. v City of New York,
210 AD3d at754 [citations omitted]).
Further, where a party "never explain[s]" why he did not produce responsive discovery,
combined with "dilatory behavior in fumishing discovery, including in violation of . . . the court's
warning . . . that it would strike [the defendants'] answer if [they] did not comply with plaintiff s
demands, the court properly struck defendants' answer" (Lynx Capital Partners of NJ, LLC v
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Bayes Capital,2lT AD 3d 571, 572llst Dept 20231). The Sanders Entities have received no valid
explanation as to why Maldonado and the Firm have not complied with the Court's Disclosure
Order and prior discovery obligations (McRoberts Aff., fl 20). Maldonado and the Firm's letter to
the Court does not absolve them of their disclosure obligations because their pre-lawsuit disclosure
was not complete.
Finally, Maldonado and the Firm have proven in their own filings that they possess
documents responsive to their requests because Maldonado and the Firm have, whether
inadvertently or not, attached relevant documents to submissions to the Court (McRoberts Aff.,
Exs. 27 and 34). In his Affidavit in Support of the Disqualification of Farrell Fritz, P.C.,
Maldonado attaches five exhibits that would be potentially relevant to this action, including emails
between counsel discussing discovery in another action (see McRoberts Aff., Ex. 34).
Accordingly, given the combination of factors including: (l) the amount of time that has
passed in this action; (2) the number of attempts by the Sanders Entities to contact Maldonado and
the Firm; (3) the demonstrated existence of responsive documents in the possession of Maldonado
and the Firm; and (a) the failure by Maldonado and the Firm to comply with the Court's final
warning, the Court should find that their conduct was willful and contumacious.
Maldonado and the Firm's conduct is the epitome of willful and contumacious. Once such
conduct has been established, as the Sanders Entities have clearly shown here, a court "may impose
discovery sanctions, including the striking of a pleading, where aparty'refuses to obey an order
for disclosure or willfully fails to disclose information which the court finds ought to have been
disclosed"'(L.K. v City of New York,2l0 AD3d at753).
Maldonado and the Firm have objectively not only refused to obey the Court's Disclosure
Order on October 9,2024 and the Court's orders from the Compliance Conference on November
t4
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13,2024 (McRoberts Aff., fl 20), but also refused to comply with any disclosure obligations for
the duration of this case (McRoberts Aff., fl 7). In addition, the Sanders Entities are aware of
information and discovery that the Court can, and should, find "ought to have been disclosed"
(L.K. v City of New York,2l0 AD3d at753;see McRoberts Aff., Exs.24 and37).
Therefore, upon renewal, the Court should strike Maldonado and the Firm's Answer
because of their willful and contumacious conduct of consistently refusing to comply with
discovery obligations and, most notably, the Court's final warnings on October 9, 2024 and
November 13,2024.
CONCLUSION
For all ofthe foregoing reasons, the Court should issue an Order: (i) granting leave to renew
the Disclosure Order; (ii) upon renewal, striking the Answer; (iii) referring this maffer to a Judicial
Hearing Officer or Special Referee for an inquest on damages; and (iv) granting such other and
further relief as the Court deems just and proper, including precluding Maldonado and the Firm
from using or relying in this litigation upon any document or communication they have not
produced in disclosure.
Dated: January 11,2025 FARRELL FRITZ, P.C.
By: lslTu'&/n4 A. Franklin C. McRoberts James R. Maguire 400 RXR Plaza Uniondale, New York 11556 (516) 227-0700
Attorneysfor Plaintffi
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CERTIFICATION OF COUNSEL
This Memorandum of Law was prepared by computer using Microsoft Word. The total
number of words in the document, excluding the caption, Table of Contents, Table of Authorities,
and signature block is 4,427. This certification complies with Rule l7 of the Commercial Division
Rules.
hlaun&ao ( 7k/cRa/o* Franklin C. McRoberts
t6
FF\15071093.7
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ATTACHME,NT #5 [* 48] 48 of 52
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SUPREME COURT OF THE STATE OF NEW YORK COTINTY OF NASSAU x SANDERS EQUITIES LLC, NEXT MTLLENNIUM : Index No. 605681 12022 REALTY, LLC, AERIAL WAY AND ROBBINS : LLC, 123 FROST ASSOCIATES L.P., 135 : NORTH Hon. Sharon M.J. Gianelli BROADWAY LLC and 69 BLOOMINGDALE : LLC, Motion Sequence No. 005 Plaintiffs, REPLY AFFIRMATION - against - IN FURTHER SUPPORT OF MOTION FOR LEAVE KEVIN MALDONADO, TO RENEW KEVTN MALDONADO AND ASSOCIATES, P.C. d/b/a KEVIN MALDONADO & ASSOCIATES d/blaKEYIN MALDONADO & PARTNERS LLC, ME,LTSSA MALDONADO, KEVIN MALDONADO and MELISSA MALDONADO, as TRUSTEES of THE, KEVIN AND MELISSA MALDONADO TRUST, EAGLE LAKE HOLDINGS LLC, BUSHMAN HILL REAL ESTATE LLC,567 FOUR MILE POINT LLC, WM WELCH ENTERPRISES LLC, BLUE STONE AND MULCH LLC, WMW HOLDTNGS LLC, and HART MANSION LLC,
FRANKLIN C. MCROBERTS, an attomey admitted to practice law in the courts of the
State of New York, affirms under penalty of perjury:
l. I am a Partner with the law firm of Farrell Fritz, P.C., attorneys for Plaintiffs.
2. I have personal knowledge of the facts in this Affirmation.
3. I respectfully submit this Reply Affirmation in further support of Plaintiffs' motion
for an Order, pursuant to CPLR 2221 (e):
(i) granting Plaintiffs leave to renew the Decision and Order of the Hon. Sharon M.J.
Gianelli, dated October 7,2024, and entered October 9,2024 (the "Disclosure
Order"), to the extent it denied Plaintiffs' motion to strike the Answer to Amended
I
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Complaint, Counterclaims, and Third-Party Complaint, filed September 8, 2023
(the "Answer"), of Defendants Kevin Maldonado ("Maldonado"), and Kevin
Maldonado and Associates, P.C. d/b/a Kevin Maldonado & Associates d/b/a Kevin
Maldonado & Partners LLC (the "Firm"), "with leave granted herein for movants
to re-apply should Defendants fail to comply with this Decision and Order;"
(ii) upon renewal, pursuant to CPLR $ 3126 (3), striking the Answer because of
Maldonado and the Firm's willful and contumacious failure to comply with the
Disclosure Order and their disclosure obligations; and
(iii) granting such other and further relief as the Court deems just and proper, including
precluding Maldonado and the Firm from using or relying in this litigation upon
any document or communication they have not produced in disclosure.
4. After defaulting over and over throughout the entirety of this litigation, including
on Plaintiffs' prior disclosure motion under Motion Sequence No. 004, Maldonado and the Firm
once again have defaulted, this time on Plaintiffs' motion for leave to renew the Disclosure Order
rendered on Motion Sequence No. 004.
5. This serial pattern of disrespect for the Court, the disregard of disclosure
obligations, the non-compliance with the Court's triple final warnings, is unpardonable for a
lifelong, practicin g liti gator like Maldonado.
6. Accordingly, based upon prior "leave granted" for Plaintiffs to "re-apply should
Defendants fail to comply with this Decision and Order" (NYSCEF Doc. No. 211 at2-3),the Court
should now grant renewal, and upon renewal, strike Maldonado and the Firm's Answer for willful
and contumacious refusal to comply with the Disclosure Order and their disclosure obligations.
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WHEREFORE, the Court should issue an Order: (i) granting leave to renew the
Disclosure Order; (ii) upon renewal, striking the Answer; (iii) referring this matter to a Judicial
Hearing Of{icer or Special Referee for an inquest on damages; and (iv) granting such other and
further relief as the Court deems just and proper, including precluding Maldonado and the Firm
from using or relying in this litigation upon any document or communication they have not
produced in disclosure.
Dated: January 28,2025
lsl ?,,azlld'a O. Franklin C. McRoberts
J
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CERTIFICATION OF COUNSEL
The foregoing Reply Affirmation in Further Support of Motion for Leave to Renew was
prepared by computer using Microsoft Word. The total number of words in the document,
excluding the caption and signature block is 450. This certification complies with Rule 17 of the
Commercial Division Rules.
kl a,,a'&/d', ? ?thRalorro Franklin C. McRoberts
FF\l 5270228. I
[* 52] 52A of aF 52 A
Footnotes
[1] of
[16] 1a ^€ 52 [* 16] Complaint, Counterclaims, and Third-Party Complaint, filed September 8, 2023 (the "Answer"), of Defendants Kevin Maldonado ("Maldonado"), and Kevin Maldonado and Associates, P.C. d/b/a Kevin Maldonado & Associates d/b/a Kevin Maldonado & Partners LLC (the "Firm"), "with leave granted herein for movants to re-apply should Defendants fail to comply with this Decision and Order;" (ii) upon renewal, pursuant to CPLR $ 3126 (3), striking the Answer because of Maldonado and the Firm's willful and contumacious failure to comply with the Disclosure Order and their disclosure obligations; and (iii) granting such other and further relief as the Court deems just and proper, including precluding Maldonado and the Firm from using or relying in this litigation upon any document or communication they have not produced in disclosure. 4. Attached are true copies of the following documents comprising the full record on the prior motion under Motion Sequence No. 004: o Exhibit 1: Notice of Motion, datedNovember 2,2023 o Exhibit 2: Affirmation of Franklin C. McRoberts, dated November 2,2023 o Exhibit 3: Letter, dated 4pr1122,2022 r Exhibit 4: Verified Complaint, filed June 13,2022 o Exhibit 5: Notice for Discovery and Inspection, dated August 3,2022 o Exhibit 6: Interrogatories, dated August 3,2022 o Exhibit 7: Letter, dated September 12,2022 o Exhibit 8: Letter, dated September 19,2022 o Exhibit 9: Verified Answer, filed September 20,2022 o Exhibit 10: Verified Reply to Counterclaim, filed September 20,2022 2 a ^+
[17] of 1a 52 [* 17] a Exhibit 11: Email Chain, dated October 15,2022 a Exhibit 12: Letter, dated October 18,2022 a Exhibit 13: Preliminary Conference Stipulation and Order, dated October 29,2022 a Exhibit 14: Second Notice for Discovery and Inspection, dated November 8,2022 a Exhibit 15: Response to Discovery Demands, dated December 9,2022 a Exhibit 16: Response to Interrogatories, dated December 9,2022 a Exhibit l7: Response to Demand for Laptop, dated December 9,2022 a Exhibit 18: Letter, dated December 19,2022 a Exhibit 19: Letter, dated January 9,2023 a Exhibit 20: Letter, dated April 24, 2023 a Exhibit 21: Amended Verified Complaint, failed June 22,2023 a Exhibit 22: Answer to Amended Complaint, Counterclaims, and Third-Party Complaint, filed September 8,2023 a Exhibit 23: Affirmation of Steven Blaustein, dated May 31,2023 a Exhibit 24: Email Chain, dated May 5,2021 a Exhibit 25: Draft Affidavit of Arthur Sanders a Exhibit 26: Email Chain, dated }l4.ay 14,2021 a Exhibit 27: File lnventory a Exhibit 28: Memorandum of Law, dated November 2,2023 a Exhibit 29: Letter, dated January 8,2024 a Exhibit 30: Disclosure Order, dated October 7 , 2024, and entered October 9 , 2024 a Exhibit 31: Notice of Entry of Disclosure Order, dated October 9,2024 3 2 of
[18] 11 ^€ 52 [* 18] 5. Attached are true copies of the following documents, which were unavailable to Plaintiff, and therefore, not offered on the prior motion under Motion Sequence No. 004, which would change the prior determination: o Exhibit 32: Third Notice for Discovery and Inspection, dated January 2,2024 o Exhibit 33: Notice of Motion, dated January 8,2024r . Exhibit 34: Affidavit of Kevin Maldonado, dated January 8,2024 o Exhibit 35: Memorandum of Law, dated January 8,2024 . Exhibit 36: Letter, dated February 1,2024 o Exhibit 37: Letter, dated February 16,2024 o Exhibit 38: Letter, dated l|l4:ay 23,2024 o Exhibit 39: Letter, dated October 9,2024 o Exhibit 40: Letter, filed November 9,2024 r Exhibit 4l: Email Chain, dated November 12,2024 o Exhibit 42: Letter, dated November 12,2024 o Exhibit 43: Fourlh Notice for Discovery and Inspection, dated November 19,2024 o Exhibit 44: Letter, dated December 2,2024 o Exhibit 45: Letter, dated January 3,2025 o Exhibit 46: Email, dated January 3,2025 o Exhibit 47: Letter, dated January 10,2025 r Exhibit 48: Screenshot of the entire Dropbox of disclosure Maldonado and the Firm 1 Exactly one year ago, on January 11,2024, the e-filing clerk rejected Maldonado's Notice of Motion, writing that the "caption doesn't match." To this day, Maldonado and the Firm have declined to re-file it. As a result, no motion was ever filed, processed, briefed, submitted, or decided. 4 A ^€
[19] of 1a 52 [* 19] produced on January 10, 2025, the only disclosure of any kind they produced in this case - ever - consisting of exactly 14 files of audio and video recordings Maldonado secretly recorded, all of which are responsive exclusively to the Fourth Notice for Discovery and Inspection, dated November 19, 2024 (see Ex. 43), but no documents or cornmunications of any kind, and no supplemental written disclosure responses to, the Notice for Discovery and Inspection, dated August 3, 2022 (see Ex. 5), the Interrogatories, dated August 3, 2022 (see Ex.6), the Second Notice for Discovery and Inspection, dated November 8,2022 (see Ex. 14), or the Third Notice for Discovery and Inspection, dated January 2,2024 (see Ex. 32). The Current State of Affairs and Statement of Good Faith Under 22 NYCRR Q 202.7 (c) 6. Obviously, pursuant to 22 NYCRR $ 202.7 (c),I attempted in good faith numerous times, both before and after filing Motion Sequence No. 004, to attempt to resolve Maldonado and the Firm's noncompliance with their disclosure obligations without the need for motion practice. 7 . Despite those good faith efforts, and in direct contravention of exactly three -final warnings from the Court, all after Plaintiffs filed their original motion, Maldonado and the Firm still have not produced even one single page or electronic file of disclosure in response to Plaintiffs' First, Second, or Third Notices for Discovery and Inspection (see Exs. 5, 14, and 32), nor any supplemental written responses to the First or Second Notices for Discovery and Inspection (see Exs. 5 and l4), nor any written responses of anv kind tin response to the Third and Fourth Notices for Discovery and Inspection (see Exs. 32 and 43). 5 [* 20] 20 of 52