Free Response - District Court of Connecticut - Connecticut

Case 3:01-cv-02158-WWE

Document 100

Filed 07/28/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DONALD WAINRIGHT, ET AL., Plaintiffs; V. OSM COMMUNICATIONS, INC., ET AL; Defendants; : : : : : : : : : :

CIVIL ACTION NO. 3:01-CV-02158 (WWE)

JULY 7, 2005

PLAINTIFFS' RESPONSES TO DEFENDANTS' RESPONSES TO COURT DISCOVERY ORDER DATED MAY 12, 2005

On May 12, 2005, Honorable United States Magistrate Judge Holly B. Fitzsimmons ordered Defendants Israel Polansky, Robert Polansky and Anne Polansky to comply with discovery in part by answering a series of questions regarding their knowledge of and possession of information and documentation of matters specific to transactions involving OSM Communications, Inc. Additionally, Plaintiffs were permitted to respond with any additional follow-up questions and responses within ten (10) days of the receipt of the Defendants' compliance. Defendants were deemed to have complied and given notice of their compliance on June 29, 2005; to wit, Plaintiffs now respectfully submit their follow up responses in compliance with the May 12th, 2005, Order. 1. ISRAEL POLANSKY A. Pursuant to the Order, Plaintiffs are permitted to request and Defendant Israel Polansky is obligated to verify and produce all

Case 3:01-cv-02158-WWE

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evidence of all transfers of monies made to any OSM bank account by or under the direct or indirect supervision of Israel Polansky. Plaintiff respectfully herein submits the following schedule (attached as Exhibit A) of monies that were transferred into one of two accounts kept by OSM and makes demand upon Israel Polansky to make full disclosure as to his involvement with each and every transfer as listed. Since the amounts and nature of these transfers is of central importance to the final outcome of this case, Plaintiffs respectfully request that the discovery period not be foreclosed until Israel Polansky has complied with the Order.

B.

In Israel Polansky's response No. 5 he states as follows "I have been told OSM's last bank account was closed in 2000. There have been no wire transfers from any bank account of mine to OSM during the period 2000 to date." The veracity of this statement is seriously undermined by prior statements made under oath by Israel Polansky at his videotaped deposition of March 29, 2004 (see Exhibit B). Specifically starting at page 15 line 1 in response to Attorney Sulzbach's question concerning when Israel had last loaned money to OSM, Israel states "Um I would think ah four months ago...Not to him but the company I sent 3 or 4,000 dollars." Moreover in response to Attorney Arnold's question of whether OSM in still in operation at present, Israel clearly responds "the company is still alive today."

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Also at page 18 line 1 Israel was asked when he last attended a board meeting to which he responds at page 18 line 2 "last year, I guess, I think it was last year." For all such reasons, Plaintiffs are entitled to and would suffer extreme prejudice if not given access and copies of any and all bank records from 1996 to present and accounts and other books held personally by Israel Polansky. These documents are necessary to determine the extent of Israel's inconsistent statements.

C.

Plaintiffs request all account numbers of any and all bank accounts of Israel Polansky be disclosed as has been agreed to and promised by Israel Polansky at prior proceedings.

2.

ROBERT AND ANNE POLANSKY A. It is upon Plaintiffs' information and belief that Robert and Anne Polansky, as husband and wife, willfully used the bank accounts of OSM Communications Inc. as if they were their own personal checking account. This practice of commingling funds seriously undermines the claim that OSM was a separate entity. This practice also directly and proximately resulted in financial harm to the Plaintiffs. To date, although repeatedly asked to do so, the Defendants Robert and Anne Polansky have not turned over any of their bank account statements or even disclosed account numbers. Plaintiffs are entitled to all records and accounts from 1996 to the present day.

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Plaintiffs are entitled to these records because they are central to the fair and just outcome of this case and likely to lead to admissible evidence as is required by federal and state laws governing discovery.

3. ROBERT POLANSKY A. Robert Polansy has not yet provided OSM's federal tax returns as required. According to Robert his accountant is now deceased. Plaintiffs respectfully request that the accountant's demise should not be a hindrance to Robert Polansky's ability to obtain records and make demand that Robert Polansky obtain such records directly from the Internal Revenue Service.

CONCLUSION Central to this case is whether or not OSM Communications Inc. is merely an alter ego for the Defendant Polanskys. The Defendant Polanskys have repeatedly failed to abide by the production requests that were properly and timely attached to the notices of deposition and have further sought to delay the fair and equitable resolution of the Plaintiffs' causes of action. Such conduct should not be rewarded by closing off discovery at this time. The Plaintiffs have suffered losses of income, emotional distress and even physical relocation because of the conduct of the Defendants. Plaintiffs ask that the Court continue to assist the Plaintiffs in bringing about compliance with Plaintiffs' discovery requests.

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THE PLAINTIFFS

BY____________________ Law Offices of Robert E. Arnold LLC 205 Church Street, Suite 310 New Haven, Connecticut 06510-1805 TEL: (203) 777-3000 FAX: (203) 498-6080 Federal Bar CT#18093 [email protected]

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CERTIFICATION

This is to certify that a copy of the foregoing was sent via facsimile and mailed, postage prepaid, of July 8, 2005, to: Defendant Robert Polansky and Defendant OSM Communications, Inc. Michael Goldsmith 432Park Avenue South Suite 705 New York, New York 10016 By mail to Counsel for Defendants Israel Polansky and Anne Polansky J. Michael Sulzbach 385 Orange Street New Haven, CT 06511 Original to: United States District Court, District of Connecticut 915 Lafayette Boulevard Bridgeport, Connecticut 06604

BY:

____________________ Law Offices of Robert E. Arnold LLC 205 Church Street, Suite 310 New Haven, Connecticut 06510-1805 TEL: (203) 777-3000 FAX: (203) 498-6080 Federal Bar CT#18093 [email protected]