INDEX NO.

514736/2015

FILED: KINGS COUNTY CLERK 01/24/2017 07:50 AM

NYSCEF DOC. NO. 100

RECEIVED NYSCEF: 01/24/2017

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

A.J. RICHARD & SONS, INC.,

Index No. 5 14736/2015
Plaintiff,
-againstFOREST CITY RATNER COMPANIES, LLC,
Defendant.

AFFIRMATION OF
ROBERT H. BARON
IN SUPPORT OF ORDER TO
SHOW CAUSE FOR SUBPOENA
DUCES TECUM

ROBERT H. BARON hereby affirms the following to be true under the

penalties of perjury pursuant to CPLR
1.

2106:

I am an attorney admitted to practice in the courts of the State of

New York and am a member of the firm of Cravath, Swaine & Moore LLP, attorneys for
Plaintiff A.J. Richard & Sons, Inc. (Plaintiff or A.J. Richard) in this action.
2.

Plaintiff requests that this Court, pursuant to CPLR

2307, issue

the subpoena duces tecum (the Subpoena) directed to Empire State Development
Corporation (ESD), in the form attached hereto as Exhibit 1, which would require ESD
to produce documents on or before February 6, 2017, in advance of the February 15,
2017 deadline for completion of fact depositions under the Courts August 16, 2016
Preliminary Conference Order.
3.

The records and documents requested in the Subpoena are material

and relevant to establishing Plaintiffs claims in this action, which include, inter alia,
allegations that ESD acts at Defendant Forest City Rather Companies, LLCs direction.
4.

Shortly after discovery commenced in this matter, on May 19,

2016, A.J. Richard, through counsel, sought to obtain the documents described in the

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Subpoena by delivering to ESD a request made pursuant to the Freedom of Information
Law, N.Y. Pub. Off. Law

84, et seq. (FOIL), dated May 19, 2016 (the FOIL

Request). A true and correct copy of the FOIL Request, a letter from Robert H. Baron
to the ESD Records Access Officer, dated May 19, 2016, is annexed hereto as Exhibit 2.
5.

ESD confirmed receipt of the FOIL Request on May 26, 2016. A

true and correct copy of that confirmation, an email from Lesley Hall to Robert H. Baron,
dated May 26, 2016, is annexed hereto as Exhibit 3.
6.

On June 9, 2016, ESD informed counsel for A.J. Richard that it

was still processing the FOIL Request and hope[d] to have a response.

on or before

July 8, 2016. A true and correct copy of that communication, an email from Lesley Hall
to Robert H. Baron, dated June 9, 2016, is annexed hereto as Exhibit 4.
7.

In June 2016, counsel for A.J. Richard conferred telephonically

with Lesley Hall, ESDs Records Access Officer, who informed A.J. Richards counsel
that if A.J. Richard narrowed its requests to include only documents related to Site 5
(instead of the Atlantic Yards Project as a whole), ESD could produce responsive
documents more expeditiously.
8.

Accordingly, on June 29, 2016, counsel for A.J. Richard sent an

amended FOIL request (the Amended FOIL Request) to ESD, addressing the concerns
raised by Mr. Hall. A true and correct copy of the Amended FOIL Request, a letter from
Robert H. Baron to Lesley Hall, dated June 29, 2016, is annexed hereto as Exhibit 5.
9.

On July 8, 2016, ESD informed counsel for A.J. Richard that it

was still processing the FOIL Request and hope[d] to have a response.

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on or before

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August 5, 2016. A true and correct copy of that communication, an email from Lesley
Hall to Robert H. Baron, dated July 8, 2016, is annexed hereto as Exhibit 6.
10.

On August 5, 2016, ESD informed counsel for A.J. Richard that it

was still processing the FOIL Request and hope[d] to have a response.

on or before

September 2, 2016. A true and correct copy of that communication, an email from
Lesley Hall to Robert H. Baron, dated August 5, 2016, is annexed hereto as Exhibit 7.
11.

On September 1, 2016, ESD informed counsel for A.J. Richard

that it was still processing the FOIL Request and hope[d] to have a response.

on or

before October 3, 2016. A true and correct copy of that communication, an email from
Lesley Hall to Robert H. Baron, dated September 1, 2016, is annexed hereto as Exhibit 2.
12.

On October 3, 2016, E$D informed counsel for A.J. Richard that

ESD continues to review documents responsive to the FOIL Request in accordance

with [FOIL] and its rules concerning access to ESDs records. ESD further indicated
that it would notify counsel for A.J. Richard of the status of its review and endeavor to
provide.

any responsive documents and/or determination(s) made pursuant to FOIL on

or before November 1, 2016. A true and correct copy of that communicationan email
from Lesley Hall to Robert H. Baron, dated October 3, 2016, is annexed hereto as
Exhibit 9.
13.

On November 1,2016, ESD informed counsel for A.J. Richard that

ESD continues to review documents responsive to the FOIL Request in accordance

with [FOIL] and its rules concerning access to ESDs records. ESD further indicated
that it would notify counsel for A.J. Richard of the status of its review and endeavor to
provide.. any responsive documents and/or determination(s) made pursuant to FOIL on
.

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or before December 1, 2016. A true and correct copy of that communication, an email
from Lesley Hall to Robert H. Baron, dated November 1, 2016, is annexed hereto as
Exhibit 10.
14.

On December 1, 2016, ESD informed counsel for A.J. Richard that

ESD continues to review documents responsive to the FOIL Request in accordance

with [FOIL] and its rules concerning access to ESDs records. ESD further indicated
that it would notify counsel for A.J. Richard of the status of its review and endeavor to
provide.

any responsive documents and/or determination(s) made pursuant to FOIL on

or before January 17, 2017. A true and correct copy of that communication, an email
from Lesley Hall to Robert H. Baron, dated December 1, 2016, is annexed hereto as
Exhibit 11.
15.

On January 17, 2017, ESD informed counsel for A.J. Richard that

ESD continues to review documents responsive to the FOIL Request in accordance

with [FOIL] and its rules concerning access to ESDs records. ESD further indicated
that it would notify counsel for A.J. Richard of the status of its review and endeavor to
provide.

any responsive documents and/or determination(s) made pursuant to FOIL on

or before February 14, 2017. A true and correct copy of that communication, an email
from Lesley Hall to Robert H. Baron, dated January 17, 2017, is annexed hereto as
Exhibit 12.
16.

It has been over $ months since counsel for A.J. Richard submitted

the FOIL Request, nearly 7 months since counsel for A.J. Richard narrowed its requests
in the Amended FOIL Request to address ESDs concerns and over 3 months since ESD

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reported that it had begun to review documents in response to the FOIL Request. To
date, ESD has produced no documents to counsel for A.J. Richard.
17.

The Subpoena is substantially identical to the Amended FOIL

Request. Compliance with the Subpoena therefore should impose no burden upon ESD
beyond what ESD claims it has already been doing since no later than October 3, 2016, in
response to the Amended FOIL Request. (See Paragraphs 12-15 above; Exhibits 9-12.)
18.

Accordingly, A.J. Richard respectfully requests that this Court

issue the Subpoena to ensure that A.J. Richard receives documents from ESD with
sufficient time to review them in advance of a deposition of an ESD representative before
the close of fact depositions in this action.
19.

No prior application to a court has been made for the relief sought

herein.

Dated: January 23, 2017

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