Austin Schuster Group, LLC v. Extell Dev. Co.

Austin Schuster Group, LLC v Extell Dev. Co.

2025 NY Slip Op 32136(U)

June 16, 2025

Supreme Court, New York County

Docket Number: Index No. 158302/2023

Judge: Andrew Borrok

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

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This opinion is uncorrected and not selected for official

publication.

INDEX NO. 158302/2023

NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 06/16/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53

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THE AUSTIN SCHUSTER GROUP, LLC, INDEX NO. 158302/2023

Plaintiff, 02/20/2025,

03/26/2025,

-v- 04/04/2025,

MOTION DATE 04/11/2025

EXTELL DEVELOPMENT COMPANY, CLINTON PB 27

LLC,XYZ CORP. 1-20, 003 004 005

MOTION SEQ. NO. 007

Defendant.

DECISION + ORDER ON

MOTION

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HON. ANDREW BORROK:

The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96, 97, 98,

99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112

were read on this motion to/for SANCTIONS .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 113, 114, 115, 116,

117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131, 166, 167, 168, 169, 170, 204

were read on this motion to/for AMEND CAPTION/PLEADINGS .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 134, 135, 136, 137,

138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157,

158, 159, 160, 161, 162, 163, 164, 165, 171, 214, 215, 216, 219, 220, 221, 222

were read on this motion to/for SANCTIONS .

The following e-filed documents, listed by NYSCEF document number (Motion 007) 179, 180, 181, 182,

183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202,

203, 205, 206, 226, 227

were read on this motion to/for DISCOVERY .

Upon the foregoing documents and for the reasons set forth below, the Austin Schuster Group,

LLC (ASG) is entitled to take a new deposition of Abba Barnett as the corporate representative

of Extell Development Corporation (Extell) at Extell’s expense. This is the deposition that they

noticed (NYSCEF Doc. No. 96 “Abba Barnett on behalf of Extell Development Company”),

and this is what they were entitled to take. As discussed previously, it is Abba Barnett’s

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communications with ASG that gives rise to the alleged agreement which forms the basis for this

dispute. It is simply not so that this was not the deposition noticed. Nor was it proper to take the

position that Mr. Barnett should testify and then afterwards the parties would discuss whether his

testimony bound Extell (NYSCEF Doc. No. 112 at 18:9-22) or that the deposition of Mr. Barnett

could be avoided based on an email purporting to produce him on behalf of another entity or in

his personal capacity only to which ASG never agreed. Even following call to the Court in the

middle of the deposition to address this sham, the record evidences deliberate obfuscation to the

legitimate rights of ASG to explore non-privileged information (NYSCEF Doc. No. 112).1 As

such, ASG’s motion (Mtn. Seq. No. 003) must be granted to this extent and the cross-motion is

denied.

ASG’s motion (Mtn. Seq. No. 004) for leave to file an amended complaint (the AC; NYSCEF

Doc. No. 117) is GRANTED except that they may not bring a separate cause of action for

attorneys’ fees. Extell’s cross-motion (Mtn. Seq. No. 004) is also GRANTED to the extent that

the cost of taking Austin Schuster’s deposition based on the new version of the agreement

proffered must be borne by ASG.

Extell is not entitled to strike the complaint (Mtn. Seq. No. 005) at this time. Simply put, the fact

that the wrong document was previously provided and includes events that are alleged to have

occurred later does not yet establish a “fraud on the court” as a matter of law warranting the

1

For the avoidance of doubt, to the extent that Clinton PB 27 LLC was noticed for deposition (NYSCEF Doc. No.

87), Abba Barnett was not identified as the person on behalf of this company. To be sure, Clinton could produce

Abba Barnett as its corporate representative if appropriate, but what they could not do is pretend that Abba Barnett

had not been noticed on behalf of Extell or seek to avoid binding Extell based on his testimony which is exactly

what they sought to do.

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extraordinary remedy of striking the pleadings. That said, the defendants are entitled to fullsom

discovery on this issue so as to develop the record as to how this occurred. Following a fully

developed record, they may renew their motion if appropriate.

Extell’s motion (Mtn. Seq. No. 007) to (i) compel ASG to produce responsive documents,

including the metadata for all electronically stored documents that will be produced, (ii) compel

ASG to produce Miriam Miranda for a deposition, and (ii) award Extell the attorney’s fees

reasonably incurred in connection with the instant motion is GRANTED as set forth below.

DISCUSSION

I. ASG’s Motion for Sanctions is Granted (Mtn. Seq. No. 003)

A court in a civil action is authorized to award the reasonable attorneys’ fees and expenses

incurred by a party as a result of the opposing party’s frivolous conduct (22 NYCRR § 130-1.1

[a]). Conduct is frivolous for the purposes of a motion for sanctions if

(i) it is completely meritless,

(ii) it is done to delay or prolong the litigation or to harass or injure another

party, or

(iii) asserts false material statements of fact

(id. § 130-1.1 [c]). In addition, “a court has inherent power to address actions which are meant

to undermine the truth-seeking function of the judicial system and place in question the integrity

of the courts and our system of justice” (CDR Creances S.A.S. v Cohen, 23 NY3d 307, 318

[2014]).

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ASG argues that (i) Jason Cyrulnik, in bad faith, took the frivolous position that Abba Barnett

was appearing at the deposition as an individual rather than on behalf of Extell, and (ii) Mr.

Cyrulnik impeded Mr. Barnett’s deposition by directing him not to answer proper questions and

asserting privilege that did not exist. In support of its position, ASG adduces the transcript of

Mr. Barnett’s deposition (NYSCEF Doc. No. 112).

In opposition, Extell cross-moves for sanctions and argues that (i) Extell informed ASG prior to

the deposition that Mr. Barnett would be appearing in his personal capacity and not as Extell’s

designee, (ii) Mr. Cyrulnik made valid objections based on the work-product doctrine, form,

colloquy from ASG’s counsel, and timing and logistical issues, and (iii) ASG wasted judicial

resources by bringing a frivolous motion for sanctions.

As discussed above, ASG is entitled to retake the deposition of Abba Barnett as a representative

of Extell at the defendants’ sole cost and expense. The deposition was noticed for Mr. Barnett as

Extell’s representative (NYSCEF Doc. No. 96). This of course makes sense in this case because

he is the person whom ASG is alleged to have interacted with and, as alleged, it is his alleged

assent that forms the predicate for an agreement between Extell and the plaintiffs. The unilateral

attempt by Mr. Cyrulnik to avoid this deposition on behalf of Extell was never agreed to by

ASG. Unquestionably, the pre-deposition communication together with the conduct evidenced

by the deposition transcript undermined the truth seeking function of the judicial process where

wholly without merit objections were asserted. It was also not true to assert that it was unknown

that ASG noticed and sought Mr. Barnett’s deposition as the corporate representative of Extell.

It was also inappropriate to suggest that they would consider ASG’s request in the future or that

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Mr. Barnett should testify and that later they consider whether it should be attributed to Extell

(including if necessary seeking a ruling from the Court) (NYSCEF Doc. No. 112 at 18:9-22; see,

e.g., id. at 9-19).

As discussed, what followed after a phone call to the Court in the middle of the deposition is

what can viewed in the best light possible to the defendants as a game of “whack-a-mole” to

avoid answering appropriate and relevant questions. By way of example, when asked about the

agreements at issue in the case, including when Mr. Barnett first saw the agreement which

partially forms the basis for this dispute, counsel to Extell objected on privilege and attorney

work-product grounds. To avoid confusion, counsel to ASG clarified that he was not asking

about the substance of any communications between Mr. Barnett and his attorney:

MR. BLUM: So I don’t want to know what the sum and substance of the

discussions of—with your attorney are, but I do want to know what the

documents are—you reviewed. If you can answer that.

(id. at 22:5-8). Undeterred, counsel to Extell continued to assert inappropriate objections and

encouraged the witness to avoid answering by first avoiding questions based on inappropriate

assertions of privilege and then indicating that the question had been answered when in fact it

had not (after Mr. Blum made clear again and again that he wasn’t asking about privileged

communications). Thus, ASG is entitled to take Mr. Barnett as the corporate representative of

Extell’s deposition de novo at Extell’s expense. For the avoidance of doubt, Extell’s cross-

motion for sanctions is denied.

II. ASG’s Motion for Leave to File the AC is Granted in Part (Mtn. Seq. No. 004)

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Pursuant to CPLR § 3025(b), leave to amend shall be freely given, and absent surprise or

prejudice, leave should be denied only where “the proposed pleading fails to state a cause of

action, or is palpably insufficient as a matter of law” (Thompson v Cooper, 24 AD3d 203, 205

[1st Dept 2005]; Linares v City of New York, 2024 NY Slip Op 06156 [1st Dept 2024]).

ASG seeks leave to file the AC (i) asserting additional claims sounding in breach of good faith

and fair dealing and attorney’s fees, and (ii) amending certain factual narratives in the Complaint

based on new facts identified during discovery. They are entitled to do so (see Spina v Browning

Hotel Props, LLC, 230 AD3d 613 [2d Dept 2024]; Kimso Apts, LLC v Gandhi, 24 NY3d 403

[2014]; Yujuico v Yujuico, 2024 WL 168652, at *2 [NY Sup Ct 2024]; Gade v Islam, 2017 WL

3534921, at *3 [NY Sup Ct 2017]). However, to the extent that they assert a separate claim for

attorney’s fees, this is impermissible under New York law. The alleged agreement does not

purport to upset the American rule. As such, the motion is granted except to the extent that the

purported new pleading has a separate cause of action for attorneys’ fees. For the avoidance of

doubt, discovery shall proceed on the revised allegations and Extell is entitled to retake the

deposition of ASG at ASG’s sole cost and expense.

III. Extell’s Motion to Strike the Complaint is Denied (Mtn. Seq. No. 005)

Extell is not yet entitled to the Court striking the complaint (see CPLR § 3126; Husovic v

Structure Tone, Inc., 171 AD3d 559, 560 [1st Dept 2019]; Sanchez v City of NY, 266 AD2d 127

[1st Dept 1999]). The record does not yet evidence a “fraud on the court.” The agreement at

issue in this case was as both sides acknowledge never executed. ASG has acknowledged that it

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has proceeded on the wrong version of the agreement and is amending its complaint to reflect

what it now says was the correct version of the agreement.

According to Extell, the date of the agreement and the email which ASG indicated it was

attached to predates events set forth in the agreement. To be sure, this raises concerns and Extell

is entitled to fulsome discovery as to how this occurred, including, forensic review of the

appropriate computer servers and a deposition of Mr. Schuster as to how this quantum of

information came into the possession of ASG. ASG must participate in this process and must

provide adequate information as to this issue (including affidavits). Striking the pleadings

however before this occurs is premature. Following fulsome discovery however, Extell may

renew their motion if appropriate.

IV. Extell’s Motion to Compel is Granted in Part (Mtn. Seq. No. 007)

CPLR § 3101 requires “full disclosure of all matter material and necessary in the prosecution or

defense of an action, regardless of the burden of proof by. . . a party, or the officer, director,

member, agent or employee of a party.” As a guiding principle, the words “material and

necessary” are to be “interpreted liberally to require disclosure of . . . any facts bearing on the

controversy’ (Rivera v NYP Holdings Inc., 63 AD3d 469, 469 [1st Dept 2009] [quoting Allen v

Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968)]). A party seeking to avoid disclosure

bears the burden of showing that the disclosure sought is improper (Roman Catholic Church of

the Good Shepherd v Tempco Systems, 202 AD2d 257, 258 [1st Dept 1994].

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Extell argues that ASG’s document productions have consisted entirely of PDF copies of

electronic documents, including emails and email attachments, that included no metadata. In its

opposition papers, ASG claims that it possesses only hard copies of the documents, and thus

cannot produce metadata for documents that do not exist in that format. Specifically, ASG

contends that, since the documents in its possession were not electronically created or

maintained, ASG is only able to produce the documents by scanning them.

To the extent that ASG claims that it does not possess any responsive documents in electronic

format, it must produce an affidavit explaining its search and collection procedures and

otherwise explaining how these documents came into its possession. Extell is also entitled to

review the metadata produced from running the appropriate searches on ASG’s servers. As such,

Extell’s motion is granted to the extent that the parties must meet and confer and, by June 20,

2025 at 9:30 am, agree on a joint ESI protocol that includes search terms which contemplate the

issues surrounding the agreement at issue in this case. ASG must produce the metadata from

running the search terms on its servers and, in the event that the production reveals untoward

results, Extell may then move to renew its request for attorney’s fees.

Finally, ASG is not permitted to rely on Ms. Miranda’s affidavit (NYSCEF Doc. No. 72).

Having failed to produce her for deposition, she can not testify in this case. ASG consented to

the same (tr. 6.12.25).

The Court has considered the parties’ remaining arguments and finds them unavailing.

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Accordingly, it is hereby

ORDERED that ASG’s motion (Mtn. Seq. No. 003) for sanctions against Extell is GRANTED,

and Extell’s cross-motion for sanctions against ASG is DENIED; and it is further

ORDERED that Extell must produce Mr. Barnett for an additional four-hour deposition at

Extell’s cost within 30 days of this Decision and Order, and if Extell fails to do so, then ASG

may move for all appropriate relief; and it is further

ORDERED that ASG’s motion (Mtn. Seq. No. 004) for leave to file the AC is GRANTED to the

extent set forth herein, and Extell’s cross-motion (Mtn. Seq. No. 004) for fees and costs against

ASG is GRANTED to the extent set forth herein; and it is further

ORDERED that ASG shall upload a clean copy of the proposed AC, striking the fifth cause of

action for attorney’s fees, to NYSCEF within five days of this Decision and Order; and it is

further

ORDERED that Extell shall serve an answer to the AC or otherwise respond thereto within 20

days from the date of service; and it is further

ORDERED that Extell’s motion (Mtn. Seq. No. 005) to strike the Complaint is DENIED; and it

is further

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ORDERED that ASG must produce Mr. Schuster for an additional four-hour deposition at

ASG’s cost within 30 days of this Decision and Order; and it is further

ORDERED that Extell’s motion (Mtn. Seq. No. 007) to compel is GRANTED to the extent set

forth herein; and it is further

ORDERED that the parties shall file to NYSCEF and submit to Part 53 (sfc-

part53@nycourts.gov) a proposed joint ESI protocol in accordance with the rulings set forth

herein by June 20, 2025 at 9:30 am.

6/16/2025

DATE ANDREW BORROK, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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