### Moghtaderi v Apis Capital Advisors, LLC 2024 NY Slip Op 30353(U) January 30, 2024 Supreme Court, New York County Docket Number: Index No. 650287/2020 Judge: Melissa A. Crane 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

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 177 INDEX NO. 650287/2020 RECEIVED NYSCEF: 01/30/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. MELISSA A. CRANE Justice

---------------------------------------------------------------------------------X

KAMRAN MOGHTADERI, Plaintiff,

- V - APIS CAPITAL ADVISORS, LLC,DEKI CAPITAL GP, LLC,ERIC C ALMERAZ, DANIEL J BARKER Defendant.

------------------------------------------------------------------- --------------X PART 60M
INDEX NO. 650287/2020 MOTION DATE N/A MOTION SEQ. NO. 005
DECISION 

### + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 005) 145, 146, 147, 148, 149, 150, 151, 152, 173, 174, 175, 176 were read on this motion to/for PRECLUDE Upon the foregoing documents, itis That part ofdefendant's motion to preclude plaintiffs expert is granted in its entirety. Plaintiffhas utterly disregarded several deadlines and the rules ofthis court. In its preliminary conference order dated 11/28/2022, this court set 4/14/2023 as the deadline to complete expert discovery [see EDOC 50] and tied the note ofissue to that same date. That order also expressly states thatthe dates were "final," could not be adjourned by stipulation and that failure to comply "will result in waiver, preclusion and/or otherpenalties as appropriate." That same order also warned that "[i]fany dispute over discovery arises, the parties mustpromptly meet and confer in good faith to resolve the issues. Ifthe parties cannot compromise andresolve the issues, they must immediately contact the court at SFC-Part60@nycourts.gov to request a conference, otherwise the issues will be waived 

### (see Part Rule 8 [a])."

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### On 4/13/2023, plaintifffiled the note ofissue certifying that all discovery was complete except for certain depositions thatplaintiffhad asked for in a motion to compel that was then pending. Indeed, the granting ofthatmotion (motion 2) led to anothermotion to compel from plaintiffon July 24, 2023. Thus, clearly, plaintiffhas hadno trouble asking the court to award discovery throughout the course ofthis acrimonious litigation. Never, during the midst ofall this motionpractice (or at any otherpoint) did plaintiffreveal they intended to call an expert at trial. Commercial Division rule 13 ( c ) states that "the note ofissue and certificate ofreadiness maynotbe filed until the completion ofexpert disclosure. Expert disclosure provided after these dates without good cause will be precluded." PLAINTIFF is the one who filed the NOI stating that all discovery was complete except for items involved in the motion to compel mentioned above. Plaintiffdid notmention on the NOI that he was waiting for documents from a non-party
orthe future interposition ofan expert. Despitethe waiver language in the court's order, at no point did plaintiffapprize the court that they still needed discovery, were waiting for non-party documents orintended to present an expert at trial. Itwas notuntil December 20, 2023, thatplaintifffinally disclosed on their list of witnesses for trial that they were calling an expert. This more than 8 months after the close of expert discovery and filing ofthe note ofissue, and after this case was scheduled for trial. The lack ofreceipt ofnon-party documents is not an excuse. Atno point did the plaintiff reach out to the court as directed in discovery orders. Considering thatplaintiffhas hadno problemreaching out to the court for every trivial discovery dispute, itis surprising he didnot reach out aboutneeding an expertpriorto the time that all deadlines for expert discoveryhad lapsed. Atthe very least, he could have mentioned the need for expert disclosure on the NOL

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Instead, plaintiffwaited until the eve oftrial. This is prejudicial to defendants who have been diligentlypreparing for a trial without an expert for months. Finally, not only did plaintiffutterly fail to complywith the deadlines for expert disclosure that this court set, or even the deadlines contained in the Commercial Division rules, the expert disclosure that plaintiffdid make was woefully insufficient. For starters, there is no written report from the expert. Accordingly, for all these reasons, the court precludes plaintiff from calling its expert, Mark Gottlieb, at trial. Plaintiffalso seeks to introduce at trial his own affidavit from apriormotion. Plaintiff provides no basis to admit this affidavit as evidence, especially considering he opposes defendant's use ofdepositions as direct testimony which the court had encouraged (see motion 6). Shouldit come to pass in response to a question during live testimony, thatplaintiffcannot recall sufficiently to formulate an answer, there is nothing precluding plaintifffrom using his affidavit or anything else to refresh his recollection. However, there is no basis to admit the affidavit as evidence. Similar analysis applies to the depositions plaintiffseeks to interpose. They can be used for impeachmentpurposes, but, without more, do not come in as exhibits (see CPLR 3117). Finally, plaintiffis precluded from challenging defendants' updates to the "income hurdle rate." Plaintiffdoes not appear to oppose this portion ofdefendant's motion. That was wise. Back on May 12, 2022, the Appellate Division, First Department affirmed this court's dismissal ofplaintiffsbreach ofcontract claim as to the updated Income Hurdle Rate: Plaintiffs breach ofcontract claim as to the updated Income Hurdle Rate was properly dismissed. Under section 1.09(a) ofAddendum B, defendants were permitted to "update" the Income Hurdle Rate from time to time in their sole discretion. The decision to use the word "update" ratherthan "amend" mustbe viewed as intentional. Moreover, the language ofsection 1.10 ofAddendum B

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shows that the parties chose to ensure certain defined terms were fixed on the earlier ofthe withdrawal effective date and the date ofrequest or notice of withdrawal. However, Income Hurdle Rate was not included in this list, and therefore, defendants were free to update the Income Hurdle Rate in 2017 from $1.5 million to $2.2 million without obtainingplaintiffs consent. 

### Moghtaderi v. Apis Cap. Advisors, 205 A.D.3d 504, 505-06 (1 st Dep't 2022). Accordingly, if plaintiffintended to revive this claim at trial with evidence about the calculation ofthe updated income hurdle rate, he is precluded. Accordingly, it is ORDERED THAT the court grants defendants' motion in limine to preclude in its entirety.

1/30/2024

DATE CHECK ONE:
APPLICATION : CHECK IF APPROPRIATE : CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 2024013~48D~2EE951 MELISSA A. CRANE, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

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