Bender v Jewelry Designer Showcase Inc.

Supreme Court, Richmond County

Decided on April 24, 2026

Index No. 151894/2024

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 004) numbered 48-58 and (Motion No. 005) numbered 60-62 were read on these motions. The following papers were considered on Defendant David Rosenblum's motion, denominated Motion Sequence #004, seeking an order compelling Plaintiff Melissa Pinto to appear for deposition, and on Plaintiffs' cross-motion, denominated Motion Sequence #005, seeking an order substituting Christopher Bender as assignee of Melissa Pinto's claims pursuant to CPLR § 1018 and denying the motion to compel: Defendant's Notice of Motion to Compel, dated April 15, 2026; Affirmation of Elliot D. Ostrove in Support of Motion to Compel, dated April 15, 2026, with exhibits; Plaintiffs' Notice of Cross-Motion, dated April 21, 2026; Affirmation of Allyn J. Crawford in Opposition to Defendant's Motion to Compel and in Support of Cross-Motion, dated April 21, 2026; the respective attorney certifications; and the proceedings and filings referenced in the parties' submissions.

II. Findings of Fact

This action arises from alleged investments made by Plaintiffs Christopher Bender, Melissa Pinto, and MMP Development LLC in Jewelry Designer Showcase Inc., described in the moving papers as a Staten Island-based jewelry wholesaler operated by Arthur D'Annunzio. (NY St Cts Filing [NYSCEF] Doc No. 49 at ¶3). The Verified Complaint alleges that Defendant David Rosenblum, Jewelry Designer Showcase Inc. (hereinafter "JDS"), and PPAD Inc. & Associates were engaged in a scheme designed to induce purported "investments" in JDS and PPAD, which Plaintiffs characterize not as genuine investments but as a "ponzi" scheme devised to enrich the defendants. (NY St Cts Filing [NYSCEF] Doc No. 50).

The record before the Court establishes that Melissa Pinto is not a stranger to this litigation, not a remote nonparty, and not a merely tangential witness whose connection to the controversy is speculative. (see id). Rather, Pinto is named as a Plaintiff in the caption, asserted claims in that capacity, and signed a verification attesting to the truth of the allegations contained in the Verified Complaint. (see id). Christopher Bender likewise verified the pleading. (see id). Thus, from the inception of the action, Pinto assumed the posture of a litigant affirmatively invoking the jurisdiction of this Court and placing the factual basis of her alleged claims in issue. (see id).

Defendant Rosenblum disputes the allegations against him. (NY St Cts Filing [NYSCEF] Doc No. 31). His counsel avers that Rosenblum will establish at trial that he was not an insider, [*2]agent, or representative of JDS or PPAD, and that his relationship with JDS and D'Annunzio was that of an investor in JDS. (NY St Cts Filing [NYSCEF] Doc No. 49 ¶5). Counsel further avers that documents produced by Plaintiffs demonstrate that Bender and MMP Development LLC invested in JDS after receiving text-message solicitations from D'Annunzio, not Rosenblum, and that, in many instances, Bender and MMP Development LLC sent money to JDS on the same day D'Annunzio requested funds, without input from Rosenblum. (see id). The Court does not treat those assertions as adjudicated merits determinations; they are material here only insofar as they illuminate why Rosenblum seeks discovery from Pinto concerning the factual basis of the claims she verified and asserted.

The discovery chronology is not materially disputed. Plaintiffs initially agreed to produce Pinto for deposition on January 13, 2026. (NY St Cts Filing [NYSCEF] Doc No. 51). At Plaintiffs' request, that deposition was rescheduled to January 23, 2026. (NY St Cts Filing [NYSCEF] Doc No. 52). At Plaintiffs' request, Defendant then agreed to reschedule the deposition again, this time to January 27, 2026. (NY St Cts Filing [NYSCEF] Doc No. 53). The repeated adjournments therefore did not originate from Defendant's dilatoriness, but from Plaintiffs' side of the litigation.

On January 23, 2026, Bender appeared for deposition both individually and as the designated deponent for MMP Development LLC. (NY St Cts Filing [NYSCEF] Doc No. 54). During that deposition, Bender stated, in substance, that he did not want Pinto involved because it was "too hard," and further stated that he was "not going to have her deposed." (see id at page 6 line 19 through page 7 line 5). That statement is significant. It reflects not an inability to identify a date, not a dispute over location, not a request for protective conditions, and not a narrow objection to a particular question or category of inquiry, but an outright resistance to the deposition of a named Plaintiff.

Immediately after Bender's deposition, counsel conferred concerning Pinto's deposition. Defendant's counsel suggested that, if Pinto did not wish to testify, Pinto should dismiss her claims. Plaintiffs did not do so. Defendant's counsel then renewed the request for deposition dates on February 11, 2026, and again on March 4, 2026. (NY St Cts Filing [NYSCEF] Doc No. 55; 56). Defendant's counsel renewed the request once more on April 7, 2026. (NY St Cts Filing [NYSCEF] Doc No. 58).

Rather than produce Pinto for deposition or discontinue her claims, Plaintiffs responded on April 8, 2026 by circulating a purported assignment agreement, pursuant to which Pinto allegedly assigned her claims to Bender, together with a proposed stipulation amending the caption. (see id). Defendant declined to accept the premise that the assignment eliminated the need for Pinto's deposition. On April 10, 2026, Defendant's counsel advised Plaintiffs that, even assuming the assignment were valid, Pinto's deposition remained necessary because she had asserted claims against Rosenblum and had verified the pleading. (see id). Plaintiffs thereafter offered to stipulate that Pinto would not testify at trial, but still did not provide deposition dates. (see id).

Plaintiffs' opposition and cross-motion do not deny that Pinto was originally a named Plaintiff, do not deny that she verified the Complaint, do not deny that deposition notices were issued, do not deny that dates had been scheduled and adjourned, and do not deny that Defendant repeatedly sought to obtain her deposition without motion practice. Plaintiffs instead contend that Pinto assigned her claims to Bender as of March 11, 2026; that, for personal reasons not set forth in detail in the public filing, Pinto is unable to attend a deposition; that Pinto's claims arise from the same facts as those of Bender and MMP Development LLC; and that Bender already testified at length regarding those facts. (NY St Cts Filing [NYSCEF] Doc No. 61 ¶3-6)

Plaintiffs seek substitution under CPLR § 1018, arguing that, upon transfer of interest, an action may be continued by or against the original parties unless the Court directs substitution or joinder of the transferee. Plaintiffs rely on IndyMac Bank F.S.B. v Thompson (99 AD3d 669 [2d Dept 2012]), for the proposition that CPLR § 1018 does not mandate substitution but preserves the status quo while vesting the Court with discretionary authority to order substitution or joinder.

Plaintiffs also rely on Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc. (8 AD3d 419 [2d Dept 2004]), for the proposition that where a valid assignment is absolute on its face, the assignor is divested of control and right to the cause of action and the assignee becomes the proper party in interest.

Defendant, for his part, argues that the assignment does not defeat his right to depose Pinto. Defendant also raises, in a footnote, the possibility that the assignment may implicate champerty concerns, citing IKB Intl. v Stanley, 2023 NYLJ LEXIS 569 [Sup Ct New York County 2023], quoting Richbell Info. Servs., Inc. v Jupiter Partners, 280 AD2d 208 [1st Dept 2001]. The Court need not resolve the validity, effect, or ultimate legal consequences of that argument to decide the present motion. The narrower question before the Court is whether Pinto may avoid deposition merely because, after asserting and verifying claims, she purported to assign them to an existing co-plaintiff.

III. Conclusions of Law

CPLR § 3106 provides that, "[a]fter an action is commenced, any party may take the testimony of any person by deposition." That language is deliberately capacious. It does not confine deposition discovery to parties who intend to testify at trial. It does not condition discovery upon the continued formal ownership of a claim at the moment the deposition is sought. Nor does it provide that a named plaintiff who verified a complaint may, by later assignment, unilaterally withdraw herself from the reach of ordinary disclosure while allowing the claims she asserted to continue through another litigant.

The Court's analysis begins with the elementary proposition that a plaintiff who invokes the judicial process assumes corresponding obligations of disclosure. Pinto did not merely possess background knowledge. She appeared in the caption as a plaintiff. She verified the pleading. She asserted claims against Rosenblum. Those acts matter. A verification is not decorative parchment. It is a solemn procedural act by which the signer attests to the truth of the pleading's allegations. Having lent her oath to the factual architecture of the Complaint, Pinto cannot be treated as though she never occupied the field.

Defendant is entitled to test the factual basis of the claims asserted against him. The very premise of Plaintiffs' lawsuit is that Rosenblum participated in a scheme connected to alleged investments in JDS and PPAD. Rosenblum denies that characterization and asserts that discovery produced by Plaintiffs points instead to solicitations by D'Annunzio. Pinto's knowledge of the alleged investments, the circumstances under which her claims arose, the basis for her verification, and the extent to which her claims overlap with or differ from those of Bender and MMP Development LLC are plainly matters for deposition examination.

Plaintiffs' principal rejoinder is that Pinto assigned her claims to Bender. But CPLR § 1018 does not compel the result Plaintiffs seek. The statute provides that, upon a transfer of interest, the action may be continued by or against the original parties unless the Court directs substitution or joinder. As Plaintiffs themselves acknowledge, citing IndyMac Bank F.S.B. v Thompson (99 AD3d [*3]669 [2d Dept 2012]), substitution is discretionary rather than automatic. The statute therefore supplies a procedural mechanism for continuity of litigation after transfer; it does not create an evidentiary sanctuary for the transferor.

Nor does Cardtronics require a different conclusion. Plaintiffs invoke Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc. (8 AD3d 419 [2d Dept 2004]), for the proposition that an absolute assignment divests the assignor of control over the cause of action and vests the assignee with the right to prosecute. Even accepting that principle for present purposes, it addresses who may control and prosecute the claim; it does not hold that the assignor's material knowledge becomes undiscoverable, that the assignor's prior verification is erased, or that the opposing party loses the right to examine the person from whom the claim originated. The law of substitution is not a solvent that dissolves the ordinary incidents of disclosure.

Plaintiffs' further contention that Bender has already testified "at length" is likewise insufficient. A litigant is not required to accept one witness as the exclusive narrator of another witness's knowledge. Pinto's claims were her claims before the purported assignment. Pinto verified the Complaint in her own right. The possibility that her testimony may overlap with Bender's testimony does not make it duplicative as a matter of law, nor does it deprive Defendant of the opportunity to explore whether her knowledge, recollection, communications, understanding, and alleged damages are congruent with or divergent from Bender's account.

The offered stipulation that Pinto will not testify at trial is also inadequate. Disclosure is broader than trial proof. A deposition may be used to investigate claims, evaluate defenses, probe credibility, discover documents or communications, narrow issues, facilitate settlement, and prepare for dispositive motion practice or trial. A party cannot defeat pretrial disclosure by announcing that the witness will not appear in its case-in-chief. Were that so, any litigant could immunize a material witness from examination by the simple expedient of declining to call that witness at trial. The CPLR does not countenance such a result.

The personal reasons identified by Plaintiffs are not set forth in detail, and the Court does not minimize them. The record, however, contains no application for a protective order, no proposed alternative procedure, no medical or other evidentiary submission establishing incapacity, and no request for tailored conditions governing the deposition. The relief sought by Plaintiffs is not a modest accommodation of time, place, manner, duration, or sequencing; it is the outright denial of Defendant's right to depose a person who was a named Plaintiff, verified the Complaint, and purportedly owned claims now being prosecuted through another Plaintiff. On this record, that relief is unwarranted.

The chronology also bears on the exercise of discretion. Defendant did not rush prematurely to motion practice. Pinto's deposition was noticed, adjourned, and renoticed. Counsel conferred after Bender's deposition. Defendant requested dates repeatedly in February, March, and April 2026. Defendant's counsel certified good-faith efforts under 22 NYCRR 202.7, including written communications and oral discussions with Plaintiffs' counsel. The record therefore demonstrates that the present motion followed months of unsuccessful attempts to resolve the dispute without judicial intervention.

The Court further declines, on this record, to determine whether the purported assignment is champertous. Defendant's footnote cites IKB Intl. v Stanley (2023 NYLJ LEXIS 569 [Sup Ct New York County 2023], quoting Richbell Info. Servs., Inc. v Jupiter Partners, 280 AD2d 208 [1st Dept 2001]), for the proposition that an assignment made for the very purpose of bringing suit, to the exclusion of any other purpose, may raise champerty concerns. That issue is not necessary to the [*4]disposition of the present applications. Even if the assignment is assumed valid, the deposition remains proper. Thus, the motion to compel does not turn upon invalidating the assignment; it turns upon the independent and continuing right to disclosure from a material witness.

Plaintiffs' cross-motion for substitution is denied to the extent it seeks to use CPLR § 1018 as a device to defeat Pinto's deposition. The Court does not read CPLR § 1018, IndyMac, or Cardtronics as authorizing a plaintiff to verify claims, resist deposition, assign the claims to an existing co-plaintiff, and thereby extinguish the adversary's right to examine the original claimant. Such a rule would invite procedural gamesmanship and would allow the form of an assignment to triumph over the substance of disclosure. The Court will not elevate caption mechanics above the search for relevant testimony.

Accordingly, Defendant has established entitlement to an order compelling Pinto's deposition. Plaintiffs have not established a basis to deny that deposition, nor have they shown that substitution should be granted in a manner that would preclude Defendant from obtaining Pinto's testimony.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED that Defendant David Rosenblum's motion, Motion Sequence #004, to compel the deposition of Melissa Pinto is GRANTED; and it is further

ORDERED that Melissa Pinto shall appear for deposition on a date, time, and at a location to be agreed upon by counsel within thirty days after service of this Decision and Order with notice of entry, unless the Court so-orders a different date; and it is further

ORDERED that, if the parties are unable to agree upon a date, time, or location for the deposition, they shall promptly seek further direction from the Court; and it is further

ORDERED that Plaintiffs' cross-motion, Motion Sequence #005, is DENIED to the extent it seeks denial of Defendant's motion to compel or seeks substitution under CPLR § 1018 in a manner that would excuse, prevent, or otherwise obviate Melissa Pinto's deposition; and it is further

ORDERED that any request for substitution or caption amendment not inconsistent with this Decision and Order may be renewed, if appropriate, after completion of Melissa Pinto's deposition; and it is further

ORDERED that all other relief requested and not expressly granted herein is DENIED.

This constitutes the Decision and Order of the Court.

Dated: April 24, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT