LISZKA & GRAY, LLC Attorneys at Law 43-33 48 th Street, LL Sunnyside, NY 11104 T. 347-410-8024 stgray.esq@gmail.com September 5, 2017 SUBMITTED VIA NYSCEF AND SENT VIA EMAIL TO: Allan Bahn Bahn Multer, LLP 555 Fifth Ave., 14 th FL. New York, NY 10017 (212) 447-4700 abahn@fordharrison.com RE: Request for adjournment and other relief Spring Roc v. East of East, Index No. 0652248/2013 Dear Judge James Edward D Auguste, I hope this finds you well. The parties in this case are due to appear for trial beginning September 25, 2017. It has come to my attention that the client has a pre-existing commitment during the same week, specifically a speaking engagement in Europe. I have attached a copy of his itinerary as Exhibit A and a copy of the website advertising the speaking engagement as Exhibit B. In addition to my client s conflict, I have accepted a request to officiate my sister s wedding in Austin, TX on September 16 th, 2017. I am in the process of preparing the ceremony. I will be in Texas for about five days for the preparations and the wedding, and I would like to avoid any potential conflict with my trial preparations. I have contacted opposing counsel twice requesting their consent for the adjournment. To date, they have refused. I have attached those requests as Exhibit C. They did not provide a substantive reason. Rather, they said that the Defendant through their previous counsel has exhausted any good will that may have been available. While I understand my opposing counsel s frustration, I have engaged in good faith throughout my involvement in this matter. Additionally, I believe that the interests of the court and the parties may be better served by an adjournment at this time. Currently, the parties settlement offers are very far apart. The reason
for this disparity, in my understanding, is that the Plaintiff believes they are entitled to sue under the original construction contract (Docket No. 17) (the Construction Contract ), whereas the Defendant asserts that the covenant not to sue contained in the Release and Covenant Not to Sue (Docket No. 18) (the Settlement Agreement ) bars the Plaintiff from recovering any damages under the Construction Contract. That assertion is supported by a modification to the Settlement Agreement signed by Neevon Spring, which includes a statement in the recitals acknowledging that the Parties have mutually released each other from all claims. This modification is attached as Exhibit D. If the matter is to go to trial as scheduled, the parties will need to litigate the merits of the breach of contract claim under the Settlement Agreement as well as under the Construction Contract. The question of whether the Plaintiff can recover damages under the Construction Contract is a question of law that can be resolved by the parties submitting briefs on the matter. Depending on the outcome, the fact determination necessary at trial could be substantially limited, lightening the burden of the court as well as both parties. The Defendant has requested on multiple occasions that this matter be submitted for mediation. To date, the Plaintiff has rebuffed any attempt at mediation, citing Defendant s asserted exhaustion of Plaintiff s good will. Defendant believes that mediation before a judge could go a long way to resolve the underlying issues of law that are preventing this case from being settled. As an alternative to a briefing schedule, Defendant respectfully requests that the matter be adjourned and an order issued directing the parties to mediate the matter. I was advised that a letter request was the appropriate method for seeking this relief. Please advise if a formal motion is required. I may be contacted at (347) 410-8024 or at stgray.esq@gmail.com if you wish to discuss the matter. Yours sincerely Samuel T. Gray
Exhibit A
8/25/2017 Gmail - Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS Sam Gray <stgray.esq@gmail.com> Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS Amol Sarva <a@sarva.co> To: Sam Gray <stgray.esq@gmail.com> Wed, Aug 23, 2017 at 8:46 AM Sam Turns out I am an invited speaker in Vienna on Sep 25-29. Tickets bought months back. // Amol Sarva, Ph.D. // @amol // 530-727-8277 // Blog daily // Knote make plans // Knotel your HQ Begin forwarded message: From: Amolx Sarvax <amolsarva@gmail.com> Date: August 22, 2017 at 11:07:41 PM EDT To: Amol Sarva <a@sarva.co>, trips@kayak.com Subject: Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS ---------- Forwarded message ---------- From: johannes mueller <johannes.mueller@darwins-circle.com> Date: 2017-06-27 4:10 GMT-04:00 Subject: Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS To: Amol Sarva <a@knote.com>, amolsarva@gmail.com Johannes Müller, M.Sc. Managing Director + 43 676 843 223 244 johannes.mueller@darwins-circle.com www.darwins-circle.com Anfang der weitergeleiteten Nachricht: Von: "Travel Document"<itinerary@amadeus.com> Betreff: SARVA/AMOL RAMESH 25SEP2017 JFK LIS Datum: 27. Juni 2017 um 10:06:57 MESZ An: JOHANNES.MUELLER@DARWINS-CIRCLE.COM https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=f8mlsiuxbkm.en.&view=pt&msg=15e0f20eb432c3f5&q=amol&qs=true&search=query& 1/4
8/25/2017 Gmail - Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS OPODO LTD. BUCHUNGSNR.: WNHR6I POSTFACH 27 06 30 DATUM: 27 JUNI 2017 13476 BERLIN GERMANY SARVA/AMOL RAMESH FLUG TP 208 - TAP PORTUGAL MON 25 SEPTEMBER 2017 ------------------------------------------------------------------------- ---- ABFLUG: NEW YORK, NY (JOHN F KENNEDY INTL), TERMINAL 5 25 SEP 23:25 ANKUNFT: LISBON, PT (AIRPORT), TERMINAL 1 26 SEP 11:20 FLUG-BUCHUNGSREF.: TP/WNHR6I CHECK-IN BIS: 21:55 BUCHUNG BESTAETIGT, ECONOMY (L) DAUER: 06:55 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BAGGAGE ALLOWANCE: 1PC MAHLZEIT: ABENDESSEN/FRUEHSTUECK NON-STOP NEW YORK, NY NACH LISBON FLUGZEUG: AIRBUS INDUSTRIE A330-200 FLUG TP 1274 - TAP PORTUGAL DIE 26 SEPTEMBER 2017 ------------------------------------------------------------------------- ---- ABFLUG: LISBON, PT (AIRPORT), TERMINAL 1 26 SEP 13:00 ANKUNFT: VIENNA, AT (VIENNA INTERNATIONAL) 26 SEP 17:20 FLUG-BUCHUNGSREF.: TP/WNHR6I CHECK-IN BIS: 11:30 BUCHUNG BESTAETIGT, ECONOMY (L) DAUER: 03:20 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BAGGAGE ALLOWANCE: 1PC MAHLZEIT: MAHLZEIT NON-STOP LISBON NACH VIENNA FLUGZEUG: AIRBUS INDUSTRIE A320-100/200 FLUG TP 1271 - TAP PORTUGAL FRE 29 SEPTEMBER 2017 ------------------------------------------------------------------------- ---- ABFLUG: VIENNA, AT (VIENNA INTERNATIONAL) 29 SEP 13:20 ANKUNFT: LISBON, PT (AIRPORT), TERMINAL 1 29 SEP 15:55 FLUG-BUCHUNGSREF.: TP/WNHR6I CHECK-IN BIS: 12:20 BUCHUNG BESTAETIGT, ECONOMY (A) DAUER: 03:35 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BAGGAGE ALLOWANCE: 1PC MAHLZEIT: MAHLZEIT NON-STOP VIENNA NACH LISBON FLUGZEUG: AIRBUS INDUSTRIE A320-100/200 FLUG TP 209 - TAP PORTUGAL FRE 29 SEPTEMBER 2017 https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=f8mlsiuxbkm.en.&view=pt&msg=15e0f20eb432c3f5&q=amol&qs=true&search=query& 2/4
8/25/2017 Gmail - Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS ------------------------------------------------------------------------- ---- ABFLUG: LISBON, PT (AIRPORT), TERMINAL 1 29 SEP 17:00 ANKUNFT: NEW YORK, NY (JOHN F KENNEDY INTL), TERMINAL 5 29 SEP 20:00 FLUG-BUCHUNGSREF.: TP/WNHR6I CHECK-IN BIS: 15:30 BUCHUNG BESTAETIGT, ECONOMY (A) DAUER: 08:00 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BAGGAGE ALLOWANCE: 1PC MAHLZEIT: ABENDESSEN/FRUEHSTUECK NON-STOP LISBON NACH NEW YORK, NY FLUGZEUG: AIRBUS INDUSTRIE A330-200 DIVERSE FRE 22 JUNI 2018 ------------------------------------------------------------------------- ---- ABFLUG: NEW YORK (JFK) 22 JUN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PROTECTION SEGMENT BESTAETIGT DER MITTELWERT DER CO2 EMISSION FUER DIE FLUEGE BETRAEGT 1027.46 KG/PERSON QUELLE: ICAO CARBON EMISSIONS CALCULATOR http://www.icao.int/environmental-protection/carbonoffset/pages/default.aspx FLUG TICKET(S) ------------------------------------------------------------------------- ---- TICKET: TP/ETKT 047 5611123378 FUER SARVA/AMOL RAMESH HTTPS://BAGS.AMADEUS.COM?R=W NHR6I&N=SARVA GENERELLE INFORMATION ----------------------------------------------------------------------------- GESAMTSUMME DER TICKETS: 876.29 EUR VERGESSEN SIE NICHT, IHREN GUELTIGEN AUSWEIS ODER PASS MITZUNEHMEN "IHRE BUCHUNG IST HIERMIT BESTAETIGT" "VERGESSEN SIE NICHT, IHREN GUELTIGEN AUSWEIS ODER PASS MITZUNEHMEN WIR WUENSCHEN IHNEN EINEN ANGENEHMEN FLUG. IHR OPODO-TEAM" WENN SIE ZUSAETZLICHES GEPAECK GEBUCHT HABEN, WURDE DIESES ENTSPRECHEND ZUGEBUCHT UND AUF EINEM SEPARATEN DOKUMENT AUSGESTELLT- ES ERSCHEINT NICHT IM OBEN GENANNTEN E-TICKET UND WIRD AUCH NICHT ZUSAETZLICH PER EMAIL VERSENDET. FOLGENDER LINK FUEHRT ZU IHREM ONLINE-REISEPLAN: https://www.checkmytrip.com/cmtservlet?r=wnhr6i&l=us&n=sarva https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=f8mlsiuxbkm.en.&view=pt&msg=15e0f20eb432c3f5&q=amol&qs=true&search=query& 3/4
8/25/2017 Gmail - Fwd: SARVA/AMOL RAMESH 25SEP2017 JFK LIS https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=f8mlsiuxbkm.en.&view=pt&msg=15e0f20eb432c3f5&q=amol&qs=true&search=query& 4/4
Exhibit B
Exhibit C
8/31/2017 Gmail - Adjournment of Trial Date Sam Gray <stgray.esq@gmail.com> Adjournment of Trial Date 5 messages Sam Gray <stgray.esq@gmail.com> To: Allan Bahn <abahn@fordharrison.com> Wed, Aug 23, 2017 at 11:07 AM Dear Allan, Good morning. Amol has informed me that he has a prescheduled speaking engagement in Europe during the trial period. He has already bought tickets. Would you consent to an adjournment of the trial date until the next period when the judge is available? Thank you, Sam -- Samuel T. Gray, Esq. Liszka & Gray, LLC 43-33 48th Street, Office Sunnyside, NY 11104 (347) 410-8024 Allan Bahn <ABahn@fordharrison.com> To: Sam Gray <stgray.esq@gmail.com> Wed, Aug 23, 2017 at 11:30 AM Normally I would accommodate a request but my client says no. Quite frankly this has been on the docket for some time and he has delayed this countless times with what I can only characterize as questionable excuses, most of which involved his travel schedule. Sent from my iphone [Quoted text hidden] ATTORNEY WORK PRODUCT - PRIVILEGED & CONFIDENTIAL The information contained in this message from Ford & Harrison LLP and any attachments are privileged and confidential and intended only for the named recipient(s). If you have received this message in error, you are prohibited from reviewing, copying, distributing or using the information. Please contact the sender immediately by return email and delete the original message and attachments. In the absence of an executed engagement letter or fee contract, no attorney client relationship is established by this communication. Sam Gray <stgray.esq@gmail.com> To: Allan Bahn <ABahn@fordharrison.com> Fri, Aug 25, 2017 at 5:57 PM Allan, Can you ask your client to please reconsider. I am also officiating my sister's wedding on the 16th in Austin, Texas, and I would rather not be concerned with trial preparations. I have attached Amol's itinerary, so that you know this is a good faith request. Best, Sam [Quoted text hidden] Amol Itinerary.pdf 163K Sam Gray <stgray.esq@gmail.com> Tue, Aug 29, 2017 at 11:44 AM https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=px1y7ggzjw4.en.&view=pt&q=allan&qs=true&search=query&th=15e3004a37011929& 1/2
8/31/2017 Gmail - Adjournment of Trial Date To: Allan Bahn <ABahn@fordharrison.com> Dear Allan, Please advise. Thank you, Sam [Quoted text hidden] Allan Bahn <ABahn@fordharrison.com> To: Sam Gray <stgray.esq@gmail.com> Tue, Aug 29, 2017 at 6:02 PM Sam. My client is unwilling to consent an adjournment. The trial date was set last fall and your client should have been aware of it before he made his travel plans. Im sorry about having to deal with your sisters wedding. If it helps we can slow the process down once we get sent out out for trial. The problem is your client used up all of my client's good will before you arrived on the scene. Sent from my ipad [Quoted text hidden] https://mail.google.com/mail/u/0/?ui=2&ik=edc88d1c6c&jsver=px1y7ggzjw4.en.&view=pt&q=allan&qs=true&search=query&th=15e3004a37011929& 2/2
Exhibit D
ESCROW AGREEMENT and MODIFICATION OF RELEASE AND SATISFACTION AND COVENENT NOT TO SUE THIS ESCROW AND MODIFICATION OF RELEASE AND SATISFACTION AND COVENENT NOT TO SUE AGREEMENT (this "Agreement") is made as of June 27, 2012, by and among Spring Roc LLC ("SpringRoc"), East of East LLC ("East") and Bahn Multer & Gold LLP, with an address at 555 Fifth Avenue, New York, New York 10017 (the "Escrow Agent") (collectively the Parties"). WIT N E SSE T H: WHEREAS, SpringRoc and East have entered into a RELEASE AND SATISFACTION AND COVENENT NOT TO SUE AGREEMENT dated "Revised 12-19-11" (the "RSCS Agreement") wherein East shall pay SpringRoc a total of $250,000 in the aggregate and the Parties have mutually released each other from all claims; and WHEREAS, East has paid SpringRoc to date $25,000 and shall pay SpringRoc an additional $75,000 upon execution ofthis Agreement; and WHEREAS SpringRoc and East have requested that the Escrow Agent hold certain moneys in escrow pursuant to the RSCS and modifications as agreed to under this Agreement and as specified below; NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged and intending to be legally bound hereby, the parties agree as follows: TERMS OF THE ESCROW 1. The parties hereby agree to establish an escrow account with the Escrow Agent whereby the Escrow Agent shall hold the funds paid pursuant to the Agreement and the modifications incorporated herein. 2. Wire transfers to the Escrow Agent shall be made as follows: Chase Bank AlC of Bahn Multer & Gold LLP AlC# 902950740 REMARK: SPRING ROC 3. Wire transfers to the Spring Roc shall be made as follows: TDBank 401 5 Th Avenue New York, NY 10016 Acet # 7917217718
Routing # 026013673 MODIFICATIONS to the RSCS 1. East shall immediately wire transfer into SpringRoc's bank account as designated above Seventy Five Thousand ($75,000) dollars. Concurrent with said wire transfer to SpringRoc East shall wire transfer into Escrow Agent's account an additional One Hundred Fifty Thousand ($150,000) dollars. 2. Upon receipt ofthe wire transfer to SpringRoc, and the wire transfer to the Escrow Agent Spring Roc shall immediately transfer to East the "TCO paperwork" as contemplated in the RSCS. 3. The $75,000 transfer to Spring Roc shall satisfy East's obligation to Spring Roc in exchange for the TCO paperwork as specified in paragraph "1" ofthe RSCS. 4. Upon East obtaining a Temporary Certificate of Occupancy from the NYC Building Department for the subject property, 1314-13 10 Jackson Avenue, LIC New York, the Escrow Agent is authorized to release the escrow funds to SpringRoc without further authorization or action from either party. 5. Other than the modifications as specified in paragraphs 1-4 above all other representations and obligations ofthe Parties under the RSCS remain unchanged including but not limited to all releases of liability between the parties. MISCELLANEOUS 5. No waiver or any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other covenant or provision herein contained. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act. 6. All notices or other communications required or permitted hereunder shall be in writing, and shall be sent as set forth in the Agreement. 7. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and permitted assigns of the parties hereto. 8. This Agreement contains modifications to the RSCS between, the parties with respect to the subject matter hereof and those modifications supersede all prior understandings with respect thereto except otherwise noted. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the parties to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein.
9. Whenever required by the context of this Agreement, the singular shall include the plural and masculine shall include the feminine. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if all parties had prepared the same. Unless otherwise indicated, all references to Articles are to this Agreement. 10. The parties hereto expressly agree that Escrow Agreement shall be governed by, interpreted under and construed and enforced in accordance with the laws of the State of New York. Any action to enforce, arising out of, or relating in any way to, any provisions of this Escrow Agreement shall only be brought in a state or Federal court sitting in New York City. 11. The Escrow Agent's duties hereunder may be altered, amended, modified or revoked only by a writing signed by the parties and the Escrow Agent. 12. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud and willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud and willful misconduct. 13. The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. 14. The Escrow Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver the Purchase Agreement or any documents or papers deposited or called for thereunder in the absence of gross negligence, fraud and willful misconduct. 15. The Escrow Agent shall be entitled to employ such legal counsel and other experts as the Escrow Agent may deem necessary properly to advise the Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation; provided that the costs of such compensation shall be borne by the Escrow Agent. 16. The Escrow Agent's responsibilities as escrow agent hereunder shall terminate if the Escrow Agent shall resign by giving written notice to Spring Roc and East. In the event of any such resignation, Spring Roc and East shall appoint a successor Escrow Agent and the Escrow Agent shall deliver to such successor Escrow Agent any escrow funds and other documents held by the Escrow Agent.
17. If the Escrow Agent reasonably requires other or further instruments in connection with this Escrow Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments. 18. It is understood and agreed that should any dispute arise with respect to the delivery and/or owncrship or right of possession of the documents or the escrow funds held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent's sole discretion (1) to retain in the Escrow Agent'~ possession without liability to anyone all or any part of said documents or the escrow funds until such disputes shall have been settled either by mutual written agreement of the parties concerned by a final order, decree or judgment or a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (2) to deliver the escrow funds and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York in accordance with the applicable procedure therefore 19. Spring Roc and East agree jointly and severally to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of the Escrow Agent hereunder or the transactions contemplated hereby or any other such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Eserow Agent. IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of date first written above. Spring Roc LLC Neevon Spring East of East LLC Amol Sarva Escrow Agent: Bahn Multer & Gold LLP By: Allan Hahn