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 

NEW YORK 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, it is 

That part of defendant's motion to preclude plaintiffs expert is granted in its entirety. 

Plaintiff has utterly disregarded several deadlines and the rules of this 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 of issue to that same date. That order also expressly 

states that the dates were "final," could not be adjourned by stipulation and that failure to comply 

"will result in waiver, preclusion and/or other penalties as appropriate." That same order also 

warned that "[i]f any dispute over discovery arises, the parties must promptly meet and confer in 

good faith to resolve the issues. If the parties cannot compromise and resolve 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])." 

650287/2020 MOGHTADERI, KAMRAN vs. APIS CAPITAL ADVISORS, LLC 

Motion No. 005 

1 of 4 

Page 1 of4 

[* 1]
NYSCEF DOC. NO. 177 

INDEX NO. 650287/2020 

RECEIVED NYSCEF: 01/30/2024 

On 4/13/2023, plaintiff filed the note of issue certifying that all discovery was complete 

except for certain depositions that plaintiff had asked for in a motion to compel that was then 

pending. Indeed, the granting of that motion (motion 2) led to another motion to compel from 

plaintiff on July 24, 2023. Thus, clearly, plaintiff has had no trouble asking the court to award 

discovery throughout the course of this acrimonious litigation. Never, during the midst of all this 

motion practice ( or at any other point) did plaintiff reveal they intended to call an expert at trial. 

Commercial Division rule 13 ( c ) states that "the note of issue and certificate ofreadiness 

may not be filed until the completion of expert 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. Plaintiff did not mention on the NOI that he was waiting for documents from a non-party 

or the future interposition of an expert. Despite the waiver language in the court's order, at no 

point did plaintiff apprize the court that they still needed discovery, were waiting for non-party 

documents or intended to present an expert at trial. 

It was not until December 20, 2023, that plaintiff finally 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 of the note of issue, and after this case was scheduled for trial. 

The lack of receipt of non-party documents is not an excuse. At no point did the plaintiff 

reach out to the court as directed in discovery orders. Considering that plaintiff has had no 

problem reaching out to the court for every trivial discovery dispute, it is surprising he did not 

reach out about needing an expert prior to the time that all deadlines for expert discovery had 

lapsed. At the very least, he could have mentioned the need for expert disclosure on the NOL 

650287/2020 MOGHTADERI, KAMRAN vs. APIS CAPITAL ADVISORS, LLC 

Motion No. 005 

2 of 4 

Page 2 of 4 

[* 2]
NYSCEF DOC. NO. 177 

INDEX NO. 650287/2020 

RECEIVED NYSCEF: 01/30/2024 

Instead, plaintiff waited until the eve of trial. This is prejudicial to defendants who have been 

diligently preparing for a trial without an expert for months. 

Finally, not only did plaintiff utterly fail to comply with the deadlines for expert 

disclosure that this court set, or even the deadlines contained in the Commercial Division rules, 

the expert disclosure that plaintiff did 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. 

Plaintiff also seeks to introduce at trial his own affidavit from a prior motion. Plaintiff 

provides no basis to admit this affidavit as evidence, especially considering he opposes 

defendant's use of depositions as direct testimony which the court had encouraged (see motion 

6). Should it come to pass in response to a question during live testimony, that plaintiff cannot 

recall sufficiently to formulate an answer, there is nothing precluding plaintiff from 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 plaintiff seeks to interpose. 

They can be used for impeachment purposes, but, without more, do not come in as exhibits (see 

CPLR 3117). 

Finally, plaintiff is precluded from challenging defendants' updates to the "income hurdle 

rate." Plaintiff does not appear to oppose this portion of defendant's motion. That was wise. 

Back on May 12, 2022, the Appellate Division, First Department affirmed this court's dismissal 

of plaintiffs breach of contract claim as to the updated Income Hurdle Rate: 

Plaintiffs breach of contract claim as to the updated Income Hurdle Rate was 

properly dismissed. Under section 1.09(a) of Addendum 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" rather than "amend" must be 

viewed as intentional. Moreover, the language of section 1.10 of Addendum B 

650287/2020 MOGHTADERI, KAMRAN vs. APIS CAPITAL ADVISORS, LLC 

Motion No. 005 

3 of 4 

Page 3 of 4 

[* 3]
NYSCEF DOC. NO. 177 

INDEX NO. 650287/2020 

RECEIVED NYSCEF: 01/30/2024 

shows that the parties chose to ensure certain defined terms were fixed on the 

earlier of the 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 201 7 from 

$1.5 million to $2.2 million without obtaining plaintiffs consent. 

Moghtaderi v. Apis Cap. Advisors, 205 A.D.3d 504, 505-06 (1 st Dep't 2022). Accordingly, if 

plaintiff intended to revive this claim at trial with evidence about the calculation of the 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 

650287/2020 MOGHTADERI, KAMRAN vs. APIS CAPITAL ADVISORS, LLC 

Motion No. 005 

Page 4 of 4 

4 of 4 [* 4]