FILED: NEW YORK COUNTY CLERK 10/21/ :52 PM INDEX NO /2009 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 10/21/2014

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1 FILED: NEW YORK COUNTY CLERK 10/21/ :52 PM INDEX NO /2009 NYSCEF DOC. NO. 436 RECEIVED NYSCEF: 10/21/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MUTUAL BENEFITS OFFSHORE FUND, - against - Plaintiff, EMANUEL ZELTSER, MARK ZELTSER, STERNIK & ZELTSER, M.E. SELTSER P.C., ALEXANDER FISHKIN, INTEREL CORPORATION, and JOSEPH KAY, Defendants. Index No /09 PRE-ARGUMENT STATEMENT PURSUANT TO 22 NYCRR STERNIK & ZELTSER and JOSEPH KAY, - against - Counterclaim-Plaintiffs, CHRISTOPHER SAMUELSON, THE TEST TRUST, MUTUAL TRUST, KURT GUBLER, W. SHAUN DAVIS, PETER LOMBARDI, STEVEN K. STEINER A/K/A STEVEN STEINGER, THOMAS H. DAVIS, SHARON DAVIS, TRIANGLE INTERNATIONAL MANAGEMENT, LTD., MERIDIAN ASSET MANAGEMENT LTD., INVESTARIT AG, HARNEYS CORPORATE SERVICES LTD., OFFSHORE INCORPORATIONS LIMITED, AMICORP CURACAO NV, and JOHN DOES 1-10, Counterclaim-Defendants. Pursuant to 22 NYCRR Appellant, Joseph Kay, sets forth his pre-argument statement as follows: (1) The title of the action is identified in the above caption. Appellant notes that that above caption includes the counterclaims dismissed with prejudice by the order on appeal; (2) The full names of the parties are identified in the above caption;

2 (3) The name, address and telephone number of counsel for Appellant is: Bruce D. Katz, Esq. Bruce D. Katz & Associates 160 Broadway, Suite 908 New York, New York Tel: (212) Attorneys for Appellant Joseph Kay (4) The name, address and telephone number of counsel for Appellees is: Michael P Gilmore, Esq. Moss & Gilmore, LLP 129 Third Street Mineola, NY (516) Attorneys for Appellees Triangle International Management, Ltd., Amicorp Curacao B.V, Investarit AG, Meridian Asset Management Ltd., Mutual Trust SA, Christopher Samuelson, Kurt Gubler, and W. Shaun Davis (5) The court and county from which this appeal is taken is Supreme Court, New York County (Hon. Marcy S. Friedman); (6) The causes of action asserted in the Amended Verified Counterclaims are for fraud, conversion, unjust enrichment, constructive trust, permanent injunction, and declaratory judgment. (7) The Supreme Court dismissed Appellant s Verified Counterclaims based on the following conclusions: (a) Under CPLR 3019(a), counterclaims may not be asserted against the Counterclaim-Defendants because they are not also asserted against the Plaintiff; (b) the Amended Verified Counterclaims were not served properly as required by the Hague Convention; (c) the Court, in its March 30, 2012 decision, disregarded the affidavits of personal service submitted by Appellant and such holding is law of the case; (d) Appellant s request for 2

3 leave to effectuate alternative service was not warranted where cost is the only reason offered as to the impracticability of service under the Hague Convention. Further, the Supreme Court denied Appellant s cross motion for an order granting leave to effect alternative service, seeking an order deeming service on Counterclaim-Defendants to have been properly made nunc pro tunc, and seeking leave to take jurisdictional discovery. (8) Appellant respectfully submits that the Supreme Court improvidently exercised its discretion and/or erred for the following reasons: (a) The Supreme Court erred in dismissing Appellant s Amended Verified Counterclaims on the ground that those counterclaims were not also asserted against the Plaintiff. The Court below erred because those counterclaims had been asserted against the Plaintiff but were previously dismissed with prejudice. CPLR 3019(a) does not require dismissal of counterclaims against all counterclaim defendants simply because the counterclaims have been dismissed against the plaintiff. Further, there is no prohibition against the assertion of counterclaims against third parties other than the plaintiff where the counterclaims raise questions as to the plaintiff and the third parties. See, e.g., Agric. Ins. Co. v. Elmhurst Contracting Co., 62 N.E.2d 781 (N.Y. 1945); (b) The Supreme Court erred in relying on the non-final March 30, 2012 decision vacating the default judgment entered against Counterclaim-Defendants to the extent that decision ruled that service of process by registered mail overseas is not authorized by the Hague Convention. The Court below further erred in adopting findings in a prior unrelated decision rather than conducting a separate legal analysis of the availability of service by mail under the Hague convention. The precedent relied on by the Court, Sardanis v Sumitomo Corp., 279 A.D.2d 225, 228 (1 st Dep t 2001), holding that service of process by mail is not available under 3

4 the Hague Convention, pre-dates a clear statement by the Hague Commission to the contrary. The Supreme Court should have aligned its decision with the Hague Commission s holding on this issue, rather than on now-obsolete caselaw. Moreover, the vast majority of jurisdictions in New York and elsewhere have reached the contrary conclusion and have correctly deemed that service of process by mail is authorized under the Hague Convention. The Supreme Court s September 23, 2014 final decision dismissing Appellant s Amended Verified Counterclaims with prejudice relied upon its interlocutory decision of March 30, Appellant respectfully submits that the March 30, 2012 decision was erroneous and is now appealable in view of the finality of the dismissal of Appellant s counterclaims. See CPLR 5501(a)(1); (c) The Supreme Court erred in concluding that the excessive cost associated with Hague Convention service was the only ground relied on by Appellant in support of his request for leave to effectuate alternative service. Appellant demonstrated that service under the Hague Convention was impracticable because, inter alia, the Counterclaim-Defendants had already denied personal service and would likely do the same if efforts at personal service were repeated. Under the circumstances of this case, where service by mail is authorized by the Hague Convention in virtually all jurisdictions, where the Counterclaim-Defendants had already denied that they were personally served and would likely deny repeated efforts at personal service, and where service through a central authority as defined in the Hague Convention is extremely expensive and associated with extensive delays, leave to effectuate alternative service should have been granted; (d) The Supreme Court improvidently exercised its discretion and/or erred in relying on the March 30, 2012 decision as law of the case for the proposition that the Court disregarded the affidavits of personal service relied on by Appellant. In its March 30,

5 decision, the Supreme Court disregarded those affidavits of personal service as being insufficient to defeat Counterclaim-Defendants motion to vacate the default judgment - since those affidavits were not relied on in support of Appellant s motion for default judgment. The March 30, 2012 decision did not address whether such Affidavits of Service were sufficient proof of personal service. In dicta, that decision only noted that they were of questionable veracity. The March 30, 2012 decision on Counterclaim-Defendants motion to vacate the default judgment is not law of the case in connection with Counterclaim-Defendants motion to dismiss as to the validity of the affidavits of personal service; (e) The Supreme Court erred in concluding that the affidavits of personal service are defective because the certificates of conformity were dated in 2012, whereas the affidavits of service were dated Certificates of conformity do not attest to service. They merely confirm that the method of service attested to in the affidavit of service conformed to the requirements of a given state or country; (f) The Supreme Court erred in concluding that one affidavit of personal service on one of the Counterclaim-Defendants was defective because it was executed in 2012, whereas service occurred in The 2012 affidavit of service was obtained to supplement a contemporaneous affidavit of service executed in 2009 and made of record in the Court below; (g) The Supreme Court erred in failing to conduct a traverse hearing as to those Counterclaim-Defendants that denied personal service; (h) The Supreme Court erred in dismissing counterclaims against Triangle International Management, Ltd. based on lack of service in light of the failure of Triangle to deny personal service one of its directors at his personal residence in Florida; 5

6 (i) The Supreme Court abused its discretion and erred in denying Appellant s crossmotion for an order deeming service on Counterclaim Defendants to have been made nunc pro tunc, particularly where, inter alia, service by registered mail is widely authorized under the Hague Convention, and personal service was effectuated on all Counterclaim-Defendants; (j) The Supreme Court abused its discretion and erred in failing to treat the Amended Verified Counterclaims as a Third-Party Complaint in the event it deemed the counterclaims defective under CPLR 3019(a); (k) The Supreme Court abused its discretion and erred in denying Appellant s cross motion for jurisdictional discovery after Appellant made a sufficient head start in establishing the existence of personal jurisdiction over the Counterclaim-Defendants; and (l) The Supreme Court abused its discretion and erred in dismissing the Amended Verified Counterclaims with prejudice rather than affording Appellant the opportunity to amend and correct insignificant defects. (m) The Supreme Court abused its discretion and/or erred in such additional ways as may become apparent during the preparation of the appellate record and briefs on appeal. Dated: October 21, 2014 New York, New York Bruce D. Katz & Associates By: _/s/ Bruce D. Katz, Esq. 160 Broadway, Ste. 908 New York, New York (212) Attorneys for Appellant Joseph Kay TO: all counsel by NYCEF filing 6

FILED: NEW YORK COUNTY CLERK 04/11/ :27 PM INDEX NO /2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017

FILED: NEW YORK COUNTY CLERK 04/11/ :27 PM INDEX NO /2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/11/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -------------------------------------------------------X REEC