Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-02158-WWE

Document 70-5

Filed 11/01/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------------------------------------DONALD WAINRIGHT, JANET WAINRIGHT, DOCKET NO. 301-CV-2158 (WWE) AND DEBORAH A. RUSSO-WILLIAMS,
PLAINTIFFS AFFIRMATION IN SUPPORT OF 1.PLAINTIFFS' REQUEST TO ENLARGE TIME 2. MOTION FOR ORDER 3. MEMO OF LAW IN OPPOSITION

VS.

-AGAINSTOSM COMMUNICATIONS, INC., ISRAEL H. POLANSKY, ROBERT E. POLANSKY, AND ANNE POLANSKY, DEFENDANTS, --------------------------------------------------------------

OCTOBER 30, 2004

I, ROBERT E, ARNOLD III, under the penalty of perjury, affirm: 1. I am the attorney of record for the plaintiff's in the above captioned case. 2. On the following dates I Noticed the depositions of the defendants:

Dates for Notices of Deposition
March 2, 2004 March 2, 2004 March 2, 2004 March 19, 2004 March 19, 2004 March 26, 2004 Robert E. Polansky Israel H. Polansky Anne Polansky Anne Polansky Robert E. Polansky Israel H. Polansky FOR March 25, 2004 FOR March 18, 2004 FOR March 19, 2004 FOR May 26, 2004 FOR May 26, 2004 FOR March 29, 2004

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March 29, 2004

Robert E. Polansky

FOR April 23, 2004

3. I also requested the following Plaintiffs' motions for enlargement of time in order to simply complete the depositions primarily because the defense has refused to appear at and schedule them. a) April 22, 2004 (plaintiffs 1st motion ) b) July 30, 2004 (plaintiffs 2nd motion ) c) October 8, 2004 (plaintiffs' 3rd motion) d) October 30, 2004 (plaintiffs' 4th motion) 4. I deposed Israel Polansky by means of videotape on or about May 26, 2004. 5. I arranged for a videographer and notary public to take the deposition, however since that time she has died and the videotapes which were in her possession have not been located, nor has a transcript been obtained. 6. In the deposition regardless of my schedule, the delay was not due to my actions, as Attorney Sulzbach has stated in his motion, because I had another attorney from my firm, Attorney Donovan Riley, who started the deposition in my place. The delay was due to the videographer being late and it was an agreed upon start time. Attorney Sulzbach requested that we start earlier than originally agreed and it was only on that same day, May 26, 2004 that he requested an earlier start and I told him the videographer may be late. To blame me for the health of one of the defendants is ludicrous, and not worth further response. It only highlights the fact that there was a deposition scheduled for all the defendants that day, and Robert Polansky refused to

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be deposed because he had to take care of his father and then never agreed to another date to appear for a deposition and failed to produce any records. 7. The deposition tapes of Israel Polansky have been misplaced by the estate of the videographer, and have not been located at this point in time. 8. However, as a member of this court and as I was present at a majority of the questioning of the defendant Israel Polansky, I can certify that he referenced his most recent contribution to OSM and Robert Polansky's accounts. Israel made a contribution of several thousands of dollars to aid in the legal defense and for expenses related to Robert Polansky and his wife Anne Polansky as recently as April and May of 2004. Israel Polansky also stated that he would produce his checking account statements and tax returns at the continuation of his deposition which HAS NEVER OCCURREED BECAUSE THEY HAVE REFUSED TO SCHEDULE IT WITH PALINTIFF'S COUNSEL. 9. I have made direct contact with Attorney Michael Sulzbach who has refused to provide me with a mutually agreed upon date for the continuation on the deposition of Israel Polansky as follows: a) March , 2004 Attorney Sulzbach was on vacation and not available for the deposition dates but that he would get back to me with suitable dates upon his return. b) May 28, 2004, and June 2, 2004 I called on two occasions and was told it would take some time to gather the checking accounts statements that showed the investments into OSM as recently as May of 2004 as testified to by Israel

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Polansky, which helped with the funding of OSM's legal counsel to represent OSM and Robert Polansky, and that Attorney Sulzbach would get back to me with some dates for scheduling the deposition in Boston. c) July 2004, Attorney Sulzbach was on vacation and was not available, I left a message with his office staff to please get me a date for the depositions. d) October 6, 2004 wherein he has refused to provide a date. 10. I am directly aware of the attempts of my office through Attorney Donovan Riley of three attempts to contact attorney Michael Sulzbach and that no calls were returned in scheduling the ongoing deposition of Israel Polansky, nor were any dates to depose Anne Polansky given. These attempts were made in my presence during July and August of 2004 and no return calls were even made to my office or to Attorney Riley. 11. Attorney Karen Haley who has just recently filed her appearance in this case was also told that Attorney Sulzbach would not schedule any depositions in this matter. 12. I am not seeking sanctions, only that these depositions be scheduled and unfortunately am seeking court intervention due to the refusal of the defendants to cooperate with our prior notices and with the discovery process. Affirm:
__________________________

Robert E. Arnold III (CT Federal Bar # CT18093) 295 Bassett Street New Britain, CT 06051 Telephone: (203) 777-3000 Fax: (860) 224-0400

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CERTIFICATION This is to Certify that a copy of the foregoing was mailed, postage prepaid, of October 30, 2004, to:

By hand delivery to Counsel for the defendants Israel H. Polansky and Anne Polansky J. Michael Sulzbach 385 Orange Street New Haven, CT 06511 Tel. 203-781-0880 Fax.03-781-0861 By mail Defendant Robert E. Polansky 3 East 69th Street New York, New York 10021 By mail Defendant OSM Communications, Inc. 432 Park Avenue South Suite 705 New York, New York 10016
ORIGINALTO:

United States District Court, District Of Connecticut 915 LAFAYETTE BOULEVARD BRIDGEPORT, CONNECTICUT 06604 phone: (203) 579-5861 attn: clerk's office

By:
____________________________________

Robert E. Arnold III (CT Federal Bar # CT18093) 295 Bassett Street New Britain, CT 06051 Telephone: (203) 777-3000 Fax: (860) 224-0400

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