Preview
FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
___________________________________________________
) Index No.: 604766/2016
SHALOM S. MAIDENBAUM, )
)
Plaintiff, ) ATTORNEY AFFIRMATION IN
vs. FURTHER SUPPORT OF
)
) MOTION AND IN OPPOSITION
CARDIS ENTERPRISES INTERNATIONAL, B.V., TO PLAINTIFF’S
CARDIS ENTERPRISES INTERNATIONAL, N.V., )
) CROSS-MOTION
CARD IS ENTERPRISES INTERNATIONAL (USA), INC.,
CHOSHEN ISRAEL LLC and AARON FISCHMAN, )
)
Defendants. )
)
____________________________________________________
Levi Huebner of Levi Huebner & Associates, PC, an attorney duly admitted to practice in
the Courts of this State, counsel for Non-Party Nina Fischman, (“Non-Party”) affirms the
following under penalties of perjury:
1. I make the within affirmation in further support of Non-Party’s Motion Seq. 2.,
[NYSCEF 19 – 24 & 32] seeking to transfer the within proceeding to the Honorable Justice
Bruce J. Cozzens, pursuant to CPLR §2217, quash an improper subpoena, contempt of Plaintiff
and his counsel, and in opposition to Plaintiff’s Cross-Motion Seq. 4. [NYSCEF 33-39, 41-42
and 51].
2. The within opposition is timely. Plaintiff in its improper cross-motion demands
that responsive papers be served two (2) days in advance. However, pursuant to General
Construction Law (“GCL”) § 25-a when a filing date lands on a weekend or holiday, the filing
date is carried over to “the next succeeding business day.” As such, any response, is not due until
the day following Monday, February 21, 2022, Presidents-Day which is a State and Court
holiday.
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3. Moreover, calling for transfer, Plaintiff cites to decisions of Justices, Murphy and
Cozzens, and indicates that Plaintiff “does not take a position on whether the action should be
transferred to Justice Cozzens. There have been three separate recusal and/or transfer orders
already.” See, paragraph 8, of Plaintiff’s attorney affirmation [NYSCEF 34].
4. Additionally, the Non-Party has been involved in contentions litigation, involving
the underlying issues in this proceeding before the Honorable Justice Bruce J. Cozzens, in the
matter entitled Shalom S. Maidenbaum v. Aaron Fischman, et al., Index Number 604610/16
wherein that matter is being actively litigated and not less than 30 motions have been filed in that
action (the “Confession of Judgment Action”).
5. Plaintiff’s allegation that the Non-Party has no standing is controverted by the
Plaintiff’s improper subpoena, see, Exhibit C., [NYSCEF 23], wherein the Plaintiff refers to the
Non-Party as “(6) NINA FISCHMAN, possible Soc. Sec. No. ******, Recipient of fraudulent
conveyances from the Judgment Debtors”.
6. Moreover, in the papers and briefs before the Honorable Justice Bruce J. Cozzens,
Plaintiff refers to the Non-Party Nina Fischman as a judgment debtor regarding the same
judgment referred to in the improper subpoena in this matter.
PLAINTIFF’S PATTERN OF FRIVOLOUS, CONTUMACIOUS, AND HARASSING
CONDUCT
7. Plaintiff has commenced a scorched earth pattern of harassing the defendant Aaron
Fischman, and the Non-Party.
8. In furtherance of his contumacious and harassing conduct, on January 28, 2022 via
NYSCEF 34 and via email to the Court and its staff, Plaintiff uploaded a document in
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contravention of NYCRR § 202.5(e) (1) & § 206.5(e). See letter from the Non-Party’s counsel
[NYSCEF 40].
9. Moreover, Plaintiff, in support of his cross-motion, attached scandalous materials
which have no relevance [35-39].
10. Furthermore, Plaintiff’s cross-motion seeks to improperly invoke the Court’s
jurisdiction over another non-party, Kasowitz Benson Torres LLP (“Kasowitz”) by serving a
cross-motion rather than an OSC.
11. Needles, to say, serving a cross-motion on a non-party does not invoke the Court’s
jurisdiction, and the Plaintiff’s cross-motion regarding Kasowitz is a non-waivable jurisdictional
issue.
PLAINTIFF’s UNOTICED SUPOENA and his CROSS-MOTION, ON ITS FACE IS
FRIVOLOUS and A FRAUD ON THE COURT
12. There is no underlying order of any court, let alone this Court indicating that the
Non-Party is a judgment debtor, or must comply with the Unnoticed Subpoena which is seeking
enforcement pursuant to CPLR §5223 and §5224.
13. Moreover, Plaintiff cannot create jurisdiction upon the non-party Kasowitz by
service of a cross-motion.
PLAINTIFF MAY NOT SEEK CONTEMPT ON A NON-PARTY by MOTION BUT
RATHER MUST MOVE BY OSC
14. Plaintiff attempts to move for contempt against, Non-Party Kasowitz. It is without
question that, a contempt application brought against a non-party, cannot be brought by Notice of
Motion and that this court therefore lacks jurisdiction regarding Plaintiff’s request for Civil and
Criminal Contempt against Kasowiz.
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15. The Appellate Division for the Second Department, in Long Island Trust Co. v.
Rosenberg, 82 A.D.2d 591, 598 (N.Y. App. Div. 1981) ruled that a “nonparty witness who is not
privy to that action and is about to be made a party to a proceeding which may result in fine and
incarceration is entitled to the same level of notice required to institute any special proceeding
against any new party (see CPLR 403, subds [c], [d]). Kasowiz is a nonparty and is entitled to the
same notice as any new party to a special proceeding.
16. The CPLR makes clear how judicial proceedings are to be brought. NY CPLR §
103 (2012). The section starts by indicating that there is only one type of action and then goes on
to explain that proceedings can be brought either by an action or a special proceeding, CPLR §
103. Finally, the section indicates that a notice of motion is an improper method of commencing
a special proceeding, although in certain instances the court may convert the motion into a special
proceeding, CPLR § 103(3).
17. Since it is alleged that Non-Party Kasowiz was served with a notice of motion, this
is an improper method for commencing a special proceeding on a new party, Non-Party Kasowiz
did not receive the notice required.
18. The required notice for a special proceeding is a notice of petition or an order to
show cause, CPLR section 403. Both of these methods would have apprised Non-Party Kasowiz,
not only that he was the subject of an application, but that it had the right to oppose the application.
The petition would have included Non-Party Kasowiz within the caption and made clear that
Kasowiz was a party to the proceedings and, specifically, an order to show cause would have stated
that Katz should show cause before the court.
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19. In fact, as a rule, motion practice is engaged in only by parties within an existing
action, CPLR 2214(c); CPLR Rule 2215. Both these rules reference parties exclusively. Thus,
Plaintiff is not permitted under these rules to file this motion against Non-Party Kasowiz as it is
not a party.
20. Notably, CPLR 3213, which allows an action to be brought without a complaint,
requires that a Summons be served with the notice of motion for Summary Judgment in lieu of
complaint, NY CPLR § 3213 (2015). Obviously, a notice of motion cannot confer jurisdiction no
matter how it is served. Why else would a summons be necessary?
21. Judge Martin J. Shulman, denied a motion for contempt on the ground that plaintiff
sought contempt against a nonparty by way of a motion instead of a special proceeding. Benson
Park Associates LLC v. Herman Index No. 102966/08 (Supreme Court, New York County entered
March 24, 2011) While the First Department on appeal found that the “particular challenge to the
court’s personal jurisdiction was waived because it was not raised in” the nonparties answering
papers it did not criticize the specific holding of Judge Schulman, that a contempt motion cannot
be brought against a nonparty by notice of motion. Benson Park Associates LLC v. Herman, 93
A.D.3d 609 (App. Div 1st Dept. 2012).
22. The Second Department held that where the enforcement (i.e., contempt)
proceeding is brought in a court other than the one in which the judgment was obtained,
“jurisdiction over defendant * * * can only be secured by commencing a proceeding `in the same
fashion as subdivisions (c) and (d) of CPLR 403 require for special proceedings' Federal Deposit
Insurance Corp. v. Richman, 98 A.D.2d 790, 792 (App. Div.2nd Dept., 1983 Moreover [even]
personal service of the subpoenas upon defendant * * * does not commence a special proceeding.
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(Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C5224:1, p 221;
see CPLR 5221, subd [b]).” Garrison Fuel Oil v. Grippo, 127 Misc. 2d 275 (N.Y. Misc. 1985).
Conclusion
Wherefore, Counsel for the Non-Party requests from the Court to enter an Order:
(i) That the within matter be transferred to the Honorable Justice Bruce J. Cozzens
pursuant to CPLR §2217; and
(ii) Quashing the improper Unnoticed-Subpoena.
(iii) Sanctions, contempt costs and attorney’s fees against Plaintiff Shalom S,
Maidenbaum, his counsel, Eric W. Berry and Elliot J. Blumenthal.
(iv) Together with such other and further relief in favor of the Non-Party that this
Court may deem just and necessary.
Dated: Brooklyn, NY
February 21, 2022
Levi Huebner & Associates, PC
By: /s/ Levi Huebner
Levi Huebner
488 Empire Boulevard, Suite 100
Brooklyn, NY 112225
(212) 354-5555
Attorneys for the Non-Party Nina Fischman
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Preview
FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ___________________________________________________ ) Index No.: 604766/2016 SHALOM S. MAIDENBAUM, ) ) Plaintiff, ) ATTORNEY AFFIRMATION IN vs. FURTHER SUPPORT OF ) ) MOTION AND IN OPPOSITION CARDIS ENTERPRISES INTERNATIONAL, B.V., TO PLAINTIFF’S CARDIS ENTERPRISES INTERNATIONAL, N.V., ) ) CROSS-MOTION CARD IS ENTERPRISES INTERNATIONAL (USA), INC., CHOSHEN ISRAEL LLC and AARON FISCHMAN, ) ) Defendants. ) ) ____________________________________________________ Levi Huebner of Levi Huebner & Associates, PC, an attorney duly admitted to practice in the Courts of this State, counsel for Non-Party Nina Fischman, (“Non-Party”) affirms the following under penalties of perjury: 1. I make the within affirmation in further support of Non-Party’s Motion Seq. 2., [NYSCEF 19 – 24 & 32] seeking to transfer the within proceeding to the Honorable Justice Bruce J. Cozzens, pursuant to CPLR §2217, quash an improper subpoena, contempt of Plaintiff and his counsel, and in opposition to Plaintiff’s Cross-Motion Seq. 4. [NYSCEF 33-39, 41-42 and 51]. 2. The within opposition is timely. Plaintiff in its improper cross-motion demands that responsive papers be served two (2) days in advance. However, pursuant to General Construction Law (“GCL”) § 25-a when a filing date lands on a weekend or holiday, the filing date is carried over to “the next succeeding business day.” As such, any response, is not due until the day following Monday, February 21, 2022, Presidents-Day which is a State and Court holiday. Page 1 of 6 1 of 6 FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 3. Moreover, calling for transfer, Plaintiff cites to decisions of Justices, Murphy and Cozzens, and indicates that Plaintiff “does not take a position on whether the action should be transferred to Justice Cozzens. There have been three separate recusal and/or transfer orders already.” See, paragraph 8, of Plaintiff’s attorney affirmation [NYSCEF 34]. 4. Additionally, the Non-Party has been involved in contentions litigation, involving the underlying issues in this proceeding before the Honorable Justice Bruce J. Cozzens, in the matter entitled Shalom S. Maidenbaum v. Aaron Fischman, et al., Index Number 604610/16 wherein that matter is being actively litigated and not less than 30 motions have been filed in that action (the “Confession of Judgment Action”). 5. Plaintiff’s allegation that the Non-Party has no standing is controverted by the Plaintiff’s improper subpoena, see, Exhibit C., [NYSCEF 23], wherein the Plaintiff refers to the Non-Party as “(6) NINA FISCHMAN, possible Soc. Sec. No. ******, Recipient of fraudulent conveyances from the Judgment Debtors”. 6. Moreover, in the papers and briefs before the Honorable Justice Bruce J. Cozzens, Plaintiff refers to the Non-Party Nina Fischman as a judgment debtor regarding the same judgment referred to in the improper subpoena in this matter. PLAINTIFF’S PATTERN OF FRIVOLOUS, CONTUMACIOUS, AND HARASSING CONDUCT 7. Plaintiff has commenced a scorched earth pattern of harassing the defendant Aaron Fischman, and the Non-Party. 8. In furtherance of his contumacious and harassing conduct, on January 28, 2022 via NYSCEF 34 and via email to the Court and its staff, Plaintiff uploaded a document in Page 2 of 6 2 of 6 FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 contravention of NYCRR § 202.5(e) (1) & § 206.5(e). See letter from the Non-Party’s counsel [NYSCEF 40]. 9. Moreover, Plaintiff, in support of his cross-motion, attached scandalous materials which have no relevance [35-39]. 10. Furthermore, Plaintiff’s cross-motion seeks to improperly invoke the Court’s jurisdiction over another non-party, Kasowitz Benson Torres LLP (“Kasowitz”) by serving a cross-motion rather than an OSC. 11. Needles, to say, serving a cross-motion on a non-party does not invoke the Court’s jurisdiction, and the Plaintiff’s cross-motion regarding Kasowitz is a non-waivable jurisdictional issue. PLAINTIFF’s UNOTICED SUPOENA and his CROSS-MOTION, ON ITS FACE IS FRIVOLOUS and A FRAUD ON THE COURT 12. There is no underlying order of any court, let alone this Court indicating that the Non-Party is a judgment debtor, or must comply with the Unnoticed Subpoena which is seeking enforcement pursuant to CPLR §5223 and §5224. 13. Moreover, Plaintiff cannot create jurisdiction upon the non-party Kasowitz by service of a cross-motion. PLAINTIFF MAY NOT SEEK CONTEMPT ON A NON-PARTY by MOTION BUT RATHER MUST MOVE BY OSC 14. Plaintiff attempts to move for contempt against, Non-Party Kasowitz. It is without question that, a contempt application brought against a non-party, cannot be brought by Notice of Motion and that this court therefore lacks jurisdiction regarding Plaintiff’s request for Civil and Criminal Contempt against Kasowiz. Page 3 of 6 3 of 6 FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 15. The Appellate Division for the Second Department, in Long Island Trust Co. v. Rosenberg, 82 A.D.2d 591, 598 (N.Y. App. Div. 1981) ruled that a “nonparty witness who is not privy to that action and is about to be made a party to a proceeding which may result in fine and incarceration is entitled to the same level of notice required to institute any special proceeding against any new party (see CPLR 403, subds [c], [d]). Kasowiz is a nonparty and is entitled to the same notice as any new party to a special proceeding. 16. The CPLR makes clear how judicial proceedings are to be brought. NY CPLR § 103 (2012). The section starts by indicating that there is only one type of action and then goes on to explain that proceedings can be brought either by an action or a special proceeding, CPLR § 103. Finally, the section indicates that a notice of motion is an improper method of commencing a special proceeding, although in certain instances the court may convert the motion into a special proceeding, CPLR § 103(3). 17. Since it is alleged that Non-Party Kasowiz was served with a notice of motion, this is an improper method for commencing a special proceeding on a new party, Non-Party Kasowiz did not receive the notice required. 18. The required notice for a special proceeding is a notice of petition or an order to show cause, CPLR section 403. Both of these methods would have apprised Non-Party Kasowiz, not only that he was the subject of an application, but that it had the right to oppose the application. The petition would have included Non-Party Kasowiz within the caption and made clear that Kasowiz was a party to the proceedings and, specifically, an order to show cause would have stated that Katz should show cause before the court. Page 4 of 6 4 of 6 FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 19. In fact, as a rule, motion practice is engaged in only by parties within an existing action, CPLR 2214(c); CPLR Rule 2215. Both these rules reference parties exclusively. Thus, Plaintiff is not permitted under these rules to file this motion against Non-Party Kasowiz as it is not a party. 20. Notably, CPLR 3213, which allows an action to be brought without a complaint, requires that a Summons be served with the notice of motion for Summary Judgment in lieu of complaint, NY CPLR § 3213 (2015). Obviously, a notice of motion cannot confer jurisdiction no matter how it is served. Why else would a summons be necessary? 21. Judge Martin J. Shulman, denied a motion for contempt on the ground that plaintiff sought contempt against a nonparty by way of a motion instead of a special proceeding. Benson Park Associates LLC v. Herman Index No. 102966/08 (Supreme Court, New York County entered March 24, 2011) While the First Department on appeal found that the “particular challenge to the court’s personal jurisdiction was waived because it was not raised in” the nonparties answering papers it did not criticize the specific holding of Judge Schulman, that a contempt motion cannot be brought against a nonparty by notice of motion. Benson Park Associates LLC v. Herman, 93 A.D.3d 609 (App. Div 1st Dept. 2012). 22. The Second Department held that where the enforcement (i.e., contempt) proceeding is brought in a court other than the one in which the judgment was obtained, “jurisdiction over defendant * * * can only be secured by commencing a proceeding `in the same fashion as subdivisions (c) and (d) of CPLR 403 require for special proceedings' Federal Deposit Insurance Corp. v. Richman, 98 A.D.2d 790, 792 (App. Div.2nd Dept., 1983 Moreover [even] personal service of the subpoenas upon defendant * * * does not commence a special proceeding. Page 5 of 6 5 of 6 FILED: NASSAU COUNTY CLERK 02/21/2022 11:35 PM INDEX NO. 604766/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/21/2022 (Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C5224:1, p 221; see CPLR 5221, subd [b]).” Garrison Fuel Oil v. Grippo, 127 Misc. 2d 275 (N.Y. Misc. 1985). Conclusion Wherefore, Counsel for the Non-Party requests from the Court to enter an Order: (i) That the within matter be transferred to the Honorable Justice Bruce J. Cozzens pursuant to CPLR §2217; and (ii) Quashing the improper Unnoticed-Subpoena. (iii) Sanctions, contempt costs and attorney’s fees against Plaintiff Shalom S, Maidenbaum, his counsel, Eric W. Berry and Elliot J. Blumenthal. (iv) Together with such other and further relief in favor of the Non-Party that this Court may deem just and necessary. Dated: Brooklyn, NY February 21, 2022 Levi Huebner & Associates, PC By: /s/ Levi Huebner Levi Huebner 488 Empire Boulevard, Suite 100 Brooklyn, NY 112225 (212) 354-5555 Attorneys for the Non-Party Nina Fischman Page 6 of 6 6 of 6