Free Affidavit - District Court of Connecticut - Connecticut

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT -----------------------------------x ARON ROSENBERG, : : Plaintiff, : Civil Action No. : 3:01 CV 2051 (CFD) - against : : GE CAPITAL EQUITY INVESTMENTS, : INC., et al : Defendants. : January 21, 2004 -----------------------------------x AFFIDAVIT OF J. DANIEL SAGARIN IN SUPPORT OF MOTION FOR RELIEF FROM ORDER

I, J. Daniel Sagarin, being duly sworn, hereby depose and say: 1. I am over the age of eighteen and understand the I am a member of the firm, Hurwitz

obligations of an oath.

& Sagarin and counsel for former plaintiff Aron Rosenberg in this matter. 2. On January 21, 2004 it was brought to my attention

that plaintiff Aron Rosenberg had been terminated from the above action and iXL Enterprises, Inc. substituted as party plaintiff. 3. On March 28, 2003, the parties submitted to the

court a letter brief concerning the effect of iXL Enterprises, Inc.'s Chapter 11 bankruptcy on the instant litigation, a copy of which is attached as Exhibit A. 4. On January 7, 2004, pro hac vice motions were

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 2 of 6

submitted to the court on behalf of Jack Fruchter and Jeffrey Abraham (attached as Exhibit B hereto). 5. In response to the docketing of those pro hac vice

motions, a clerk of the court called to advise that the Court had ordered a substituted plaintiff. 6. Following that advice, we checked our file and

learned that on July 3, 2003, this office received a copy of a Motion to Substitute Plaintiff. The certification on said

motion did not include Attorneys Fruchter or Abraham, as had previous motions. See, for example, Joint Motion for

Extension of Time dated March 14, 2003 and letter of John McGeeney dated March 28, attached hereto as Exhibits C and D. 7. Although there had been some delay in moving for

their admission, all parties were aware that the laboring oar in this case was being carried by Attorney Abraham of Abraham & Associates and Mr. Fruchter of Fruchter & Twersky as the prior motions, negotiations and discussions occurred. 8. The Motion to Substitute Plaintiff was not seen by At the time, the attorney who

any attorney in this office.

was handling this matter in this office was Attorney Margaret Haering. (As of January 1, 2004, Ms. Haering is no

longer with this office and is retired from active practice.) Apparently the motion was placed in the file and

not noticed by any attorney.

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 3 of 6

9.

As of July 2003, there was active consideration by

the Court of a motion to dismiss which had been filed by the defendant GE. 10. On May 30, 2002, defendant GE had moved for

extension of time on consent to file a reply memorandum. See GE Defendant's Motion on Consent for Extension of Time dated May 30, 2002, noting that the certificate of service was also sent to Fruchter & Twersky and Jeffrey Abraham. See Exhibit E attached hereto. 11. On July 1, 2002, defendant GE filed its Reply

Memorandum in Further Support of Its Motion to Dismiss the Complaint. 12. On January 29, 2003, there was a motion on Consent

for continuance with respect to oral argument filed by the defendant GE. Again, Mr. Fruchter and Mr. Abraham were See Exhibit F

noted on their certificate of service. attached hereto. 13.

Apparently all of that background prompted the

Court's request for the parties' view as to what effect the bankruptcy would have on the proceeding and that, in turn, prompted our prior referenced March 28, 2003 letter to the Court. 14. That letter in turn prompted the defendants'

counsel, Mr. McGeeney's letter to the Court of March 28, 2003, again with copies to Mr. Fruchter, Mr. Twersky and

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 4 of 6

Jeffrey Abraham. 15. Thus, from that time forward, plaintiff was under

the impression that the Court had the issues of the motion to dismiss and the effect of the bankruptcy sub judice. 14. As previously indicated, neither this office nor

the offices of Attorneys Fruchter or Abraham had any conscious awareness of the motion by iXL Enterprises, Inc. to substitute party iXL Enterprises, Inc. as a plaintiff and no copy of the same had been sent to either Mr. Abraham or Mr. Fruchter or their firms, and having reviewed the motion to substitute, believe iXL is not entitled to be substituted. 16. All were equally unaware that the Court by

endorsement order dated 9/8/03 had denied without prejudice the Motion to Dismiss and on the same date terminated the plaintiff party Aron Rosenberg. objection". Endorsed reads "absent

Apparently that was done, at least in part, At no time

because no response had been made to the motion.

was any plaintiff's counsel advised of any contact by defendants' or other plaintiffs' counsel as to how the motion to dismiss should be ruled upon. It appears that

someone advised this Court that the case was to be settled. 17. Although Messrs. Fruchter and Abraham had been

listed as counsel for the plaintiff (e.g. on plaintiff's response to motions to dismiss and all defendants' motions)

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 5 of 6

they were not notified of the motion to substitute by the movants. 18. Thereafter, this office and Messrs. Abraham and

Fruchter were all unaware of any activity occurring in this case until the clerk's call on the issues of pro hac vice admissions. 19. Indeed, during the fall, Mr. Fruchter was in

contact with defendants' counsel concerning plaintiff's views on settlement. 20. Now, for the first time, we learn that there is a

proposed settlement, the terms of which have not been previously disclosed to Mr. Rosenberg or any of his counsel. We have received no notice of the same.

______________________________ J. Daniel Sagarin Subscribed and sworn to before me, this ___ day of January, 2004.

_____________________________ Commissioner of the Superior Court

Case 3:01-cv-02051-CFD

Document 64

Filed 01/22/2004

Page 6 of 6

Certificate of Service This is to certify that a copy of the foregoing was mailed, first class mail, on January , 2004 J. Steve McGeeney, Esq. James R. Bliss, Esq. 1055 Washington Boulevard Stamford, CT 06901 James A. Lenes, Esq. Neubert, Pepe & Monteith, P.C. 195 Church St., 13th Floor New Haven, CT 06510 Robert A. Greenberg 885 Third 21ST Floor New York, Horowitz, Esq. Traurig, LLP Avenue NY 10022

Jack G. Fruchter, Esq. Mitchell M.Z. Twersky FRUCHTER & TWERSKY 1 Penn Plaza, Suite 1910 New York, NY 10119 Jeffrey S. Abraham, Esq. ABRAHAM & ASSOCIATES 1 Penn Plaza, Suite 1910 New York, NY 10119

___________________________ J. Daniel Sagarin