notice of rejection - New York State Unified Court System

INDEX NO. 150400/2015
FILED: NEW YORK COUNTY CLERK 07/29/2015 06:14 PM
NYSCEF DOC. NO. 165
RECEIVED NYSCEF: 07/29/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
LOUIS BACON,
:
Index No. 150400/2015
:
Plaintiff,
:
IAS Part 55
:
-against:
Justice Cynthia S. Kern
:
PETER NYGÅRD, NYGÅRD
:
INTERNATIONAL PARTNERSHIP,
NOTICE OF REJECTION
:
NYGÅRD INC., and DOES 1-20,
:
:
Defendants.
:
:
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PLEASE TAKE NOTICE that pursuant to CPLR 2101(f), Plaintiff Louis Bacon
(hereinafter “Plaintiff”) hereby rejects and returns herewith the following three exhibits filed on
July 20, 2015 by the Nygård Defendants in support of their Memorandum of Law in Opposition
to Louis Bacon’s Motions to Dismiss the Counterclaims and to Strike Allegations and in Support
of Their Cross-Motion for Leave to Amend: Exhibit H (the “Affidavit of Jim Bennett”), Exhibit I
(the “Declaration of Dwight Forbes”), and Exhibit J1 (the “Affidavit of Vivian Whylly”). As
detailed below, Plaintiff rejects and returns the Declaration of Forbes for failure to comply with
the requirements of CPLR § 2106(b). Plaintiff also rejects and returns the Affidavits of Bennett
and Whylly for failure to comply with the requirements of CPLR § 2309(c).
Plaintiff rejects and returns Exhibit I, the Declaration of Dwight Forbes, for failure to
comply with the requirements of CPLR § 2106(b). The Declaration of Dwight Forbes is not
under oath or affirmation before an officer authorized to administer an oath under CPLR
1
For purposes of this Notice, the operative Exhibit J is the Corrected Affidavit of Vivian Whylly filed July 22,
2015.
§ 2309(c). It is, therefore, only properly before the Court as an “Affirmation,” subject to the
requirements of CPLR § 2106(b). Specifically, the Declaration, 1) fails to affirm the truth of Mr.
Forbes’ statements; 2) is not signed by Mr. Forbes pursuant to “the penalties of perjury under the
laws of New York” (emphasis added); 3) fails to affirm that Mr. Forbes was “physically located
outside” the United States when he made his declaration; and 4) does not state that “I understand
that this document may be filed in an action or proceeding in a court of law.” See N.Y. C.P.L.R.
§ 2106(b).
Plaintiff rejects and returns Exhibit H, the Affidavit of Jim Bennett (“Bennett Affidavit”),
for failure to comply with the requirements of CPLR § 2309(c). Specifically, the Bennett
Affidavit lacks a certificate of conformity, including, “language attesting that the oath
administered in the foreign state was taken in accordance with the laws of that jurisdiction or the
law of New York.” Midfirst Bank v. Agho, 121 A.D.3d 343, 348-49 (2nd Dep’t 2014); see also
Green v. Fairway Operating Corp., 72 A.D.3d 613 (1st Dep’t 2010).
Plaintiff rejects and returns Exhibit J, the Affidavit of Vivian Whylly (“Whylly
Affidavit”), for failure to comply with the requirements of CPLR § 2309(c) and CPLR 2101(a).
Specifically, the Whylly Affidavit, 1) fails to provide a certificate of conformity, including,
“language attesting that the oath administered in the foreign state was taken in accordance with
the laws of that jurisdiction or the law of New York” as required by CPLR § 2309(c) (see
Midfirst Bank v. Agho, 121 A.D.3d 343, 348-49 (2nd Dep’t 2014); see also Green v. Fairway
Operating Corp., 72 A.D.3d 613 (1st Dep’t 2010)) and 2) fails to provide a certificate of
authentication describing the Notary Public’s qualifications as required by CPLR § 2309(c).
Moreover, the notary seal affixed to the affidavit is illegible, making it impossible to determine
where it was notarized. See CPLR § 2101(a).
2
The attached papers are hereby returned.
Dated: New York, New York
July 29, 2015
By:
3
/s/ Orin Snyder
Orin Snyder
Avi Weitzman
200 Park Avenue
New York, New York 10166
T: (212) 351-4000
F: (212) 351-4035
Attorneys for Plaintiff Louis Bacon
FILED: NEW YORK COUNTY CLERK 07/20/2015 11:54 PM
NYSCEF DOC. NO. 157
INDEX NO. 150400/2015
RECEIVED NYSCEF: 07/20/2015
EXHIBIT H
FILED: NEW YORK COUNTY CLERK 07/20/2015 11:54 PM
NYSCEF DOC. NO. 158
INDEX NO. 150400/2015
RECEIVED NYSCEF: 07/20/2015
EXHIBIT I
SUPREME COURT OF TIlE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 15040012015
LOUIS BACON.
(Kem.L)
PlainLif{.
Mot. Seq, No.3
v.
PETER NYGARD. NYGARD
INTERNATIONAL PARTNERSHIP, NYGARD
INC., and DOES 1-20,
DECLARATION
Defendants.
DWIGHT FORBES. deposes and states as follows:
I.
I am a citizen and resident of The Bahamas. I am a black Bahamian, born and
raised in The Bahamas, and I currently reside in Sunlight Village in Nassau. I was educated in
The Bahamas 1hrough graduation from high school, and 1have since worked many different jobs,
including having worked at a number of the hotels in The Bahamas. I currently have my own
painting company, which I have owned and managed for several years. T am 57 years of age.
2.
1recently called in and was broadcast on a radio show, during which 1commented
on the long-running disputes between Louis Bacon and Peter Nygard. T called in to the program
because I had experience with and had participated in the Bacon- Nygard disputes for a number
of years. After this program aired, I was contacted by an acquaintance of Mr. Nygard and
subsequently asked to provide testimony consistent with my comments on the radio show.
3.
My comments on the radio show and my testimony here are based on several
years spent working for. and at times residing on properties owned by, Louis Bacon. In the late
I~
while working in Lyfurd Cay. I got to know and became :friendswith Dan Tuckfield, who
was the caretaker and in charge of Louis Bacon's properties in Lyford Cay. In particular, at first,
Tuckfield needed a painter for one of Bacon's homes, Canal House, and I had painted several
homes in Lyford Cay. So, I was first hired for that purpose.
4.
Tuckfield and I became friends, and Tuckfield took me on to work on various
projects relating to the Bacon properties in Lyford Cay. This working relationship spanned
over ten years until shortly before Tuckfield's death in 2010. During this time, I intermittently
resided at Bacon's property Canal House, when I was painting his properties and working on
other projects fur, and often partying with, Tuckfield. In fact, for periods of time, I would be
more or less the caretaker for Canal House and Point House, one of Bacon's other properties,
particularly on occasions when Tuckfield traveled outside The Bahamas. I was well paid for the
various services I provided. I was paid in cash by a professional services firm that Bacon uses in
Nassau. I was never introduced to Bacon but I was told who he was when I saw him. I would
see him during his two or three trips a year to Lyford Cay, when he would travel to The Bahamas
without his wife or children, but usually instead with male mends or by himself. On these
occasions, Tuckfield and 1 would usually find girls to keep Bacon and his mends company
during his stay.
5.
My relationship with Tuckfield also involved drugs and illegal firearms.
Tuckfield and I would often go out on the weekends. I would smoke marijuana and Tuckfield
would use cocaine. In the past, I have been arrested twice for drugs.
6.
Tuckfield also kept a cache of firearms, illegal in The Bahamas, on Bacon's
property. Tuckfield would take the firearms in and out of the country on one of Bacon's boats,
presumably for hunting trips. I understood the hunting trips to involve TucJdield and Bacon
together. That being said, there were a number of U.S. and overseas manufacturered firearms
within the collection that one would not use to hunt.
7.
After several months ofworldng with Tuckfield during the 199Os, it became
obvious that he and Bacon had great animus towards Peter Nygard. Tuckfield would talk about
this frequently and would regularly refer to Mr. Nygcird as that "dick", Over time, I was ordered
by Tuckfield to take various actions against Mr. Nygard. I understood that these actions were
encouraged by Bacon. Among other things, I was ordered by Tuck:field on several occasions on
late nights to position myself to take pictures of Mr. Nygard and his guests when Mr. Nygard
hosted parties on his Nygcird Cay property. which was adjacent to Bacon's Point House estate. I
would climb trees on Bacon's property, such that I could get a view of Nygard's property and
take pictures. I also on more than one occasion was sent out on a small boat late at night to take
pictures of'Nygard's parties on his beachfront, I understood that the purpose of my taking
pictures was to identifYand record inappropriate conduct occurring at Nyg3rd Cay. Other than
the fact that Mr. Nygard had frequent parties with many guests, I did not observe inappropriate
conduct when I took these photos.
8.
The guests at Mr. Nygcird's parties usually included a significant contingency of
black Bahamians. I know this did not sit well with Bacon and Tuckfield, as Tuck:fieldreferred to
Mr. Nygard on occasion as a "white N--lover".
I also was ordered to take various actions to
attempt to interfere with Mr. Nyg3rd's local guests' ability to reach and enjoy his property. On
the roadway that goes across Bacon's Point House estate and to the entry to Nygard Cay, I was
responsible for placing large rocks along the road to make certain that none of Mr. Nygard's
local guests could park along the roadway. There was no other purpose for placing these rocks.
9.
On one occasion, I also helped Tuckfield attempt to bring great embarrassment or
worse to Mr. Nygard by having a very large quantity of illegal drugs land on the beach at Nygard
Cay. Tuckfield and I acquired, using cash presumably from Bacon and Bacon's very fast
cigarette boat that he kept at Canal House, seven kilos of cocaine. Tockfield and I tagged and
sealed the kilos of cocaine, brought them out to the ocean in one of Bacon's other boats, and
dropped the kilos in the water at a point where Tuckfield believed the tide would carry the drugs
to the beach at Nygard Cay. Tuckfield formerly served in the Coast Guard. This plan, however,
did not wolk and the drugs instead landed on Bacon's beacb at Point House.
10.
Over time, I observed various actions that Tockfield and Bacon took that were
aimed at Mr. Nygard. Other people were brought on to Bacon's properties from -theStates to
install electronic and stereo equipment to interfere with Mr. Nygard's and his guests' use ofhis
property. My time working for Bacon and Tuckfield ended in about 2009.
11.
I have not been compensated for providing and executing this declaration.
Signed under the pains and penalties of perjury this
l!±:. day of July, 2015.
FILED: NEW YORK COUNTY CLERK 07/22/2015 12:16 AM
NYSCEF DOC. NO. 161
INDEX NO. 150400/2015
RECEIVED NYSCEF: 07/22/2015