郭文贵破产案 · ORDER · ECF #432-3

元数据

当事人: 郭文贵 (Guo Wengui / Miles Guo / Ho Wan Kwok)
法院: CTB
案号: 22-50073
ECF #: 432
类型: ORDER
立案日: 2022-04-13

原始法庭文件为英文，下方为英文全文。

全文

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# **EXHIBIT 12**

**Case Number :BVIHCOM2020/0137 FILED: NEW YORK COUNTY CLERK 01/07/2022 08:08 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1089 RECEIVED NYSCEF: 01/07/2022 22-01073-dsj Doc 14-12 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 12 Pg 2 of 4 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 2 of 174

**FILED** HIGH COURT TERRITORY OF THE VIRGIN ISLANDS

**THE EASTERN CARIBBEAN SUPREME COURT**

**VIRGIN ISLANDS**

**IN THE HIGH COURT OF JUSTICE**

**COMMERCIAL DIVISION**

**Submitted Date:07/12/2021 09:48**

**Filed Date:07/12/2021 09:48**

**Fees Paid:72.59**

**Claim No BVIHC (Com) 137 of 2020**

**BETWEEN**

**PACIFIC ALLIANCE ASIA OPPORTUNITY FUND, LP**

**Claimant**

**and**

## **(l)GENEVER HOLDINGS CORP. (2) BRAVO LUCK LIMITED (3) KWOK HO WAN (also known as MILES KWOK, HO WAN KWOK and GUO WEN GUI) (4)QIANG GUO (also known as QUO QIANG and MILESON KWOK)**

**Defendant**

## **ORDER**

**BEFORE THE HONOURABLE MR JUSTICE ADRIAN JACK [Ag]**

**MADE** 6 December 2021

**ENTERED** December 2021

UPON the Supreme Court of the State of New York having made an order on 8 September 2021 directing the Third Defendant to transfer the shares issued by the First Defendant and held in his name to the Claimant {the **Turnover Order)**

AND UPON the application of the Claimant dated 11 November 2021 (the **Variation Application)**

AND UPON the application of the Second Defendant for an order which would (i) adjourn today's hearing and (ii) dismiss the Claimant's application dated 11 November 2021 (the **Adjournment Application)**

AND UPON HEARING Mr Andrew Willins and Miss Tamara Cameron of Appleby (BVI) Limited for the Claimant, Mr Robert Nader of Forbes Hare on behalf of the First and Third Defendants, and Mr Dan Wise and Miss Nadine Whyte-Laing of O'Neal Webster on behalf of the Second and Fourth Defendants

IT IS ORDERED THAT:

- 1 The Adjournment Application be dismissed. - 2 The Order of this Court dated 3 December 2019 (originally made in Claim Number 170/2019, but consolidated with this action) and the further order of this Court dated 30 October 2020, in each case as subsequently continued, be varied to: - (i) Permit the Third Defendant to transfer the shares registered in his name in the First Defendant to the Claimant in compliance with the Turnover Order; and - (ii) Permit the First Defendant (and its Registered Agent) to update the Register of Members of the First Defendant to reflect the transfer by the Third Defendant of the shares registered in his name to the Claimant. - 3 The Second and Fourth Defendants shall pay the Claimant's costs of the Adjournment Application and the Variation Application, to be assessed if not agreed.

BY THE COURT

for the REGISTRAR

![](_page_2_Picture_11.jpeg)

THE EASTERN **CARIBBEAN** SUPREME COURT

VIRGIN ISLANDS

IN THE HIGH COURT OF JUSTICE

COMMERCIAL DIVISION

Claim No BVIHC (Com) 137 of 2020

## **BETWEEN**

PACIFIC ALLIANCE **ASIA** OPPORTUNITY FUND LP

Claimant

and

- (1) GENEVER HOLDINGS CORP - (2) **BRAVO** LUCK LIMITED - (3) KWOK HO WAN (also known as MILES KWOK, HO WAN KWOK and GUO WEN GUI) - (4) QIANG GUO (also known as QUO QIANG and MILESON KWOK)

Defendant

**ORDER**

![](_page_3_Picture_17.jpeg)

## Legal Practitioners for the Claimant

Tel: + 1 284 393 5323 Email: awillins@applebyglobal.com

Ref: AW.432766.0003

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# **EXHIBIT 13**

| Case 22-50073 | Doc 14-13 | Filed 04/13/22 | Entered 04/13/22 01:55:22 | Exhibit 13 | |---------------|-----------|----------------|---------------------------|------------| | 22-01073-dsj | Doc 432-3 | Filed 05/24/22 | Entered 05/24/22 23:04:58 | Page 6 of | | | | | | |

| From: | Pg 2 of 6 174 Erica Cheng <erica.cheng@sw-hk.com></erica.cheng@sw-hk.com> | |--------------|-----------------------------------------------------------------------------------------------------| | To: | Steffi Tam | | Sent: | 3/16/2011 8:51 :03 AM | | Subject: | Pangu | | Attachments: | Loan Facility 20110316.pdf; Notice of Confirmation 20110316.pdf; Personal Guarantee 20110316.pdf |

## Dear Steffi,

Sorry for my late reply. Attached plesae find herewith documents signed by Mr. Kwok Ho Wan for your further handling.

Kind regareds, Erica 111::::.rica Cheng STll::::.Vlll::::.N SOIN, WONG & **CO.**

4/F & 5/F. Central Tower. 28 Quee n's Road Central. HK. D + 852 2533 2585 F + 852 2157 5550 e rica .che ng(rosw-hk.corn htt /www.sw-hk.com/

This email and any attachments may contain confidential and/or privileged information for the sole use of the intended recipient My other use or dissemination is strictly prohibited. *W* you have received this email in error, please contact the sender and delete all copies.

Stevenson, Wong & Co. 4/F & 5/F, Central Tower, No.28 Queen's Road Central, Hong Kong Tel: (852) 2526 6311 , Fax: (852) 2845 0638, Web site: htt

China Office Suite 1704, Citic Plaza, 233 Tian He N. Road, Guangzhou 510613, China Tel: (8620) 8752 1228, Fax: (8620) 8752 1268

Worldwide coverage of Legal Advisory Services since 1982 through the well established lnterlaw network constituted by 5000 lawyers in 70 law firms in 127 Business Centres in all Principal Jurisdictions. A list of the firm's principals will be provided upon request

**From:** Steffi Tam [mailto:stam@pacific-alliance.com] **Sent:** Wednesday, March 16, 2011 4:37 PM **To:** Erica Cheng **Subject:** RE: Pangu

Hi, Erica - So when can you send me the signed documents?

## **Steffi Tam Legal Counsel**

15/F, AIA Central 1 Conna ught Road Central Hong Kong ~;itp:J=tFFMB~tp 1'iu'1lz:'f~~i¥Jttp1Co,15tl

T (852) 3719 3373 F (852) 2918 0881

**Pacific Alliance** Group:t:fil/:f'Sc\:j\'~M] www.pacific-alliance.com

**From:** Steffi Tam **Sent:** Friday, March 11, 2011 3:18 PM **To:** 'Erica Cheng' **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com'; 'Hank Lo'; Derek Crane

#### **Subject:** RE: Pangu 22-01073-dsj Doc 14-13 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 13 Pg 3 of 6 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 7 of 174

HI , Erica:

Would you please let us have the update on the status? Is there anything that we can help to expedite the process? You/your client signed off on the documents about 10 days ago and still we have not received the signed documents.

Your prompt response is highly appreciated.

Thanks.

Steffi

**From:** Steffi Tam **Sent:** Monday, March 07, 2011 10:37 AM **To:** 'Erica Cheng' **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com'; 'Hank Lo'; Derek Crane **Subject:** RE: Pangu

Hi, Erica - Would you please update us the status of signing by your client? We would like to get these documents signed ASAP.

Thanks.

Best regards, Steffi

**Steffi Tam Legal Counsel**

15/F, AIA Centra l 1 Connaught Road Central Hong Kong WiitpJ:tFFMB~tp 1'iu'1lz:'f~~i¥Jttp1Co,15tl

T (852) 3719 3373 F (852) 2918 0881

**Pacific Alliance** Group:t:fil/:f'St:j\'-i':[~] www.pacific-alliance.com

**From:** Steffi Tam **Sent:** Tuesday, March 01, 20111:01 PM **To:** 'Erica Cheng' **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com'; Hank Lo; Derek Crane **Subject:** RE: Pangu

Hi, Erica - Yes, please. Please send us the documents signed by your client and we will sign afterwards.

Steffi

**Steffi Tam Legal Counsel**

15/F, AIA Central 1 Connaught Road Central Hong Kong WiitpJ:tffM'imtp 1'iu'1lz:'f~~i¥Jttp1Co,15tl

T (852) 3719 3373

**Pacific Alliance** Group:t:fil/:f'Sc\:j\'~M] www.pacific-alliance.com

**From:** Erica Cheng [mailto:Erica.Cheng@sw-hk.com] **Sent:** Tuesday, March 01, 2011 12:58 PM **To:** Steffi Tam **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com'; Hank Lo; Derek Crane **Subject:** RE: Pangu

Dear Steffi,

We are arranging Mr. Kwok to sign the documents, including facility letter, notice of confirmation and personal guarantee. Shall we exchange the execution pages by email first once they are signed? Originals will follow.

Kind regards, Erica

**From:** Steffi Tam [mailto:stam@pacific-alliance.com] **Sent:** Monday, February 28, 2011 9:08 AM **To:** Erica Cheng **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com'; Hank Lo; Derek Crane **Subject:** Re: Pangu

Hi, Erica:

Would you please follow up with your client on the documents? We need to get these signed ASAP.

Thanks. Steffi

**From:** Steffi Tam **To:** 'Erica.Cheng@sw-hk.com' < Erica.Cheng@sw-hk.com> **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com' <pg-office@panguplaza.com>; 'Hank.Lo@sw-hk.com' <Hank.Lo@sw-hk.com>; Derek Crane **Sent:** Thu Feb 24 13:06:53 2011 **Subject:** Re: Pangu

Hi, Erica:

Thanks for the revised draft Facility Letter.

Re 2(a) of the Facility Letter, the Borrower needs to pay the US\$5m within 7 business days after receipt of the RMB from the Lender. Please incorporate that change and we are in a position to sign.

Please confirm with your client and arrange for signing of the Facility Letter and Guarantee ASAP.

Thanks. Steffi

**From:** Erica Cheng <Erica.Cheng@sw-hk.com> **To:** Steffi Tam **Cc:** Jon Lewis; Ian Zheng; 'pg-office@panguplaza.com' <pg-office@panguplaza.com>; Hank Lo <Hank.Lo@sw-hk.com> **Sent:** Wed Feb 23 23:36:07 2011 **Subject:** Pangu

Dear Steffi,

### 22-01073-dsj Doc 14-13 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 13 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 9 of

Enclosed please find herewith draft 3 of the facility letter for your consideration. Kindly note that the revised faciity letter is sending to our client simultaneously and will be subject to further comments, if any. Pg 5 of 6 174

We have no further comments on the guarantee.

Kind regards, Erica Erica Cheng STEVENSON, WONG & **CO.**

4/F & 5/F. . Ce ntral Tower. 28 Quee n's Road Central. HK. D + 852 2533 2585 F + 852 2157 5550 erica.cheng(rosw-hk.com htt /www.sw-hk.com/

Stevenson, Wong & Co. 4/F & 5/F, Central Tower, No.28 Queen's Road Central, Hong Kong Tel: (852) 2526 6311 , Fax: (852) 2845 0638, Web site: htt

China Office Suite 1704, Citic Plaza, 233 Tian He N. Road, Guangzhou 510613, China Tel: (8620) 8752 1228, Fax: (8620) 8752 1268

**From:** Steffi Tam [mailto:stam@pacific-alliance.com] **Sent:** Wednesday, February 23, 2011 7:33 PM **To:** Erica Cheng **Cc:** Jon Lewis **Subject:** Re: Pangu

Hi, Erica: Any update on the documents? We need to sign the documents ASAP. Please revert.

Thanks. Steffi

**From:** Christie Ching **To:** 'Erica Cheng' <Erica.Cheng@sw-hk.com> **Cc:** Jon Lewis; Steffi Tam **Sent:** Mon Feb 14 15:41:30 2011 **Subject:** Pangu

Dear Erica,

Enclosed please find our comments on the attached personal guarantee and facility letter.

Kind regards,

**Christie Ching** c/o Pacific Alliance Investment Management (HK) Limited 16/F St John\$B !&(B€\$B !&(Bs Building 33 Garden Road, Central Hong Kong \$B!&(B1\$B!&!&(B:7,y\$B!&(B:71\$B!&!&(B-\$B!&!&(B7\$B!&!&!&!&!&!&(B33\$B!&!&!&!&!&!&!&(BI\$B!&!&(B'/-\$B!&(B, r\$B!&(Blr\$B!&(B16\$B!&(B1\$B!&(B

T (852) 3719 3306 F (852) 2918 0881

The information contained in this email (including all attached files) is confidential and may be legally privileged. *W* you are not the intended recipient. you may not disclose or use the information in this email in any way. *W* you have received this email in error. please notify us immediately by return e-mail and delete the email and all attachments from your system. Thank you.

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# **EXHIBIT 14**

### **FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 12/18/2020 22-01073-dsj Doc 14-14 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 14 Pg 2 of 7 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 12 of 174

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |--------------|------------------------------------------------------------------------------------|-----------------|----------------------------| | | Justice | | | | | ---------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | Plaintiff, | MOTION DATE | | | | - v - | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a | MOTION SEQ. NO. | 009 | | | GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a WAN GUE | | | | | HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, | | | | | GENEVER HOLDINGS LLC, and GENEVER HOLDINGS | | | | CORPORATION, | | | DECISION + ORDER ON MOTION | | | Defendants. | | | | | ---------------------------------------------------------------------------------X | | | | | | | |

## HON. BARRY R. OSTRAGER

The Court heard oral argument on motion 009 by plaintiff for damages on December 18, 2020 via Microsoft Teams. In accordance with the documents submitted and the proceedings on the record, plaintiff's motion is granted to the extent of awarding plaintiff damages of \$46,426,489.00 (unpaid principal) plus contractual interest pursuant to the 2011 Personal Guarantee at a rate of 15% per annum from effective date of December 31, 2010. *See* Aff. of Jon Lewis made on personal knowledge (NYSCEF Doc. No. 563).

## **Procedural History**

On September 15, 2020, the Court issued a Decision and Order on Motion 007, plaintiff's motion for summary judgement (NYSCEF Doc. No. 549). The Court found Kwok Ho Wan ("Kwok") liable for breach of contract, specifically the 2011 Personal Guarantee entered into by the parties. In this Decision and Order, the Court expressed skepticism about Kwok's newly raised mitigation argument but reserved ruling on the issue until the Court determined damages. The Court directed plaintiff to file a motion setting forth both damages pursuant to the 2011 Personal Guarantee and attorney's fees which the Court expressly found that plaintiff is entitled

#### **FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 12/18/2020 22-01073-dsj Doc 14-14 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 14 Pg 3 of 7 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 13 of 174

to under the contract. The issue of damages, and whether the Court should pierce the corporate veil and hold the Genever defendants liable remained outstanding.

Because the veil piercing issue will require a trial by jury, the Court asked plaintiff to withdraw the portion of Motion 009 which sought attorney's fees, and to renew it at the resolution of the entire action. Plaintiff agreed to do so, and thus this motion only addresses the damages portion of Motion 009.

The initial briefing on this motion included a cross-motion by defendant Kwok to amend his Answer to assert mitigation as an affirmative defense. In its November 12, 2020 Status Conference Order (NYSCEF Doc. No. 648) the Court directed that Kwok need not amend his Answer to argue his mitigation defense. Accordingly, this Decision and Order addresses the merits of plaintiff's motion for damages and Kwok's mitigation defense.

## **Discussion**

As the Court had already found Kwok liable under the 2011 Personal Guarantee, plaintiff filed a straightforward motion setting forth the interest owed on the unpaid principal pursuant to the terms of the agreement. In opposition, defendants argue that plaintiff had a duty to mitigate its damages, specifically by pursuing an offer from the Beijing police to potentially sell apartments to plaintiff – the same apartments that Kwok was supposed to transfer to plaintiff to satisfy his debt owed to plaintiff.

As stated in the Decision and Order on Motion 007 (NYSCEF Doc. No. 549):

In April 2013, the parties entered into a Deed of Settlement, whereby the outstanding loan amount would no longer be due and owing to Pacific Alliance if Pacific Alliance purchased certain apartments from Beijing Pangu Investment Inc. ("Beijing Pangu"), another Kwok business entity, and Shiny Times' made certain installment payments to Pacific Alliance Beijing Pangu was required to satisfy ten conditions precedent in connection with the sale and purchase of each of the apartments by Pacific Alliance. If any such condition was not satisfied by June of 2013, the Deed of Settlement would be terminated in its entirety. Pacific Alliance

and Kwok subsequently executed four extensions of the Deed of Settlement, changing only the date by which the conditions precedent needed to be satisfied. The latest Deed of Settlement required that the conditions precedent be satisfied by June of 2015. . . . [S]everal of the conditions precedent in the 2013 Deed of Settlement were not fulfilled. Namely, defendant Kwok failed to deliver clean title, failed to provide plaintiff with an invoice for the purchase of the apartments, failed to provide plaintiff with evidence regarding the payment of all relevant taxes and charges in

connection with the sale and purchase of the apartments, and failed to deliver the

House Ownership Certificates of any of the Apartments to plaintiff. . . . Because the conditions precedent were not satisfied by June 30, 2015 the Deed of Settlement was terminated and its entirety and the 2011 Personal Guarantee was once again in full force and effect.

**FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 12/18/2020

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Defendants first argue that plaintiff had a duty to mitigate its damages "once the Deed of Settlement was breached." However, the Deed of Settlement was never "breached" because the Deed of Settlement never went into effect, because the conditions precedent were not satisfied by June 30, 2015. Defendants argue that the conditions listed above were not conditions precedent, because "the Deed of Settlement was not conditioned upon anything happening before it could come into full force and effect" (*See* Def. Sur-Reply at p. 7). The Court rejects this argument raised for the first time in defendants' sur-reply. Defendants had until June 30, 2015 to satisfy the conditions precent. Failure to meet the conditions prior to June 30, 2015 was not a breach of the agreement, and on June 30, 2015, the failure to meet the conditions precedent resulted in the nullification of the Deed of Settlement and reversion to the 2011 Personal Guarantee, not a "breach" of the agreement.

Defendants next argue that there are genuine issues of material fact that would show plaintiff had the opportunity to mitigate its damages prior to the expiration of the Deed of Settlement. First, the Court has already found – based on documentary evidence submitted by both parties – that the opportunity presented by the Beijing police only came up *after* June 2015

#### **FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 12/18/2020 22-01073-dsj Doc 14-14 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 14 Pg 5 of 7 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 15 of 174

when the Deed of Settlement had already expired. *See* NYSCEF Doc. No. 549 at p. 6. Second, it does not make a difference as a matter of law when the police presented the opportunity to plaintiff. If it was prior to June 30, 2015, then plaintiff did not know whether or not Kwok would fulfill the conditions precedent and transfer plaintiff the apartments, and thus there was nothing to mitigate and no reason to pursue alternative methods of procuring the apartments. If it was after June 30, 2015, the 2011 Personal Guarantee was in effect, and under Hong Kong law, mitigation is inapplicable to a debt-repayment claims. Both plaintiff and Kwok's experts in Hong Kong law affirm this. *See* Melwani Aff. (NYSCEF Doc. No. 640) at ¶ 10 ("the Court of Final Appeal … has confirmed … that mitigation is not applicable to claims for repayment of a debt") *and* Georgiou Aff. (NYSCEF Doc. No. 667) at ¶ 7 ("I agree with Mr. Melwani that the principle of mitigation does not apply to a claim for repayment of a debt where that claim is made under a . . . personal guarantee.").

Defendants further argue that plaintiff had an obligation to pursue the offer from the Beijing police because plaintiff was allegedly being presented with an opportunity to receive the benefit it had bargained for under the Deed of Settlement – the apartments. As stated above, plaintiff did not have an obligation to pursue mitigation of a debt-repayment claim. However, even if plaintiff did have a duty to mitigate, as the Court has already found, plaintiff is only ever required to *reasonably* mitigate damages. The proposal to purchase the apartments from the Beijing police for \$17 M, when plaintiff was supposed have the apartments transferred to it for zero dollars (in satisfaction of a debt) is hardly receiving the benefit for which plaintiff had bargained.

Finally, defendants argue that plaintiff has possession of the keys to the apartments, and that that must be worth something to offset the contractual damages under the 2011 Personal

#### **FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 12/18/2020 22-01073-dsj Doc 14-14 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 14 Pg 6 of 7 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 16 of 174

Guarantee. Defendants cite no legal authority for this contention. While this type of conclusory assertion is insufficient to bar judgment as a matter of law, the Court notes that even under the Deed of Settlement, plaintiff did not bargain for mere possession of the apartments, and instead plaintiff bargained for clean title so that it could legally sell the apartments in satisfaction of the debt Kwok owed plaintiff. *See* Pl. Reply Memo at p. 11.

In conclusion, Kwok's mitigation argument is without merit and plaintiff is entitled to contractual damages and interest under the 2011 Personal Guarantee.

The Court notes that plaintiff's Second Cause of Action for veil piercing against the Genever defendants must still be tried. A trial on the remaining claim was set for January 15, 2021. The parties have submitted a stipulation requesting to adjourn the trial without a date, in light of (1) the present prohibition on jury trials in New York State due to the Covid-19 pandemic, and (2) the bankruptcy stay against one of the Genever defendants. This request is granted. A status conference is scheduled for May 4, 2021 at 10:00 am to report on the status of the Genever bankruptcy.

Accordingly, it is hereby,

ORDERED the Clerk of Court is directed to enter judgment in favor of plaintiff Pacific Alliance Asia Opportunity Fund L.P. and against defendant Kwok Ho Wan in the amount of \$46,426,489.00 plus contractual interest pursuant to the 2011 Personal Guarantee at a rate of 15% per annum from effective date of December 31, 2010 and at the statutory rate of 9% per annum from the date of entry of this decision and order.

December 18, 2020 **\$SIG\$**

**DATE BARRY R. OSTRAGER, J.S.C.**

| FILED: NEW YORK COUNTY CLERK 12/18/2020 04:45 PM | | | | | | INDEX NO. 652077/2017 | |------------------------------------------------------|------------------------|----------------------------|------------------------------------------------------|---|--------------------------------------------------------|---------------------------------------------------------| | Case 22-50073 22-01073-dsj NYSCEF DOC. NO. 685 | Doc 14-14 Doc 432-3 | | Filed 04/13/22 Filed 05/24/22 Pg 7 of 7 174 | | Entered 04/13/22 01:55:22 Entered 05/24/22 23:04:58 | Exhibit 14 Page 17 of RECEIVED NYSCEF: 12/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | CHECK ONE: | | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | | | X | GRANTED | DENIED | | GRANTED IN PART | OTHER | | APPLICATION: | | SETTLE ORDER | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | | INCLUDES TRANSFER/REASSIGN | | | FIDUCIARY APPOINTMENT | REFERENCE |

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# **EXHIBIT 15**

### **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 725 RECEIVED NYSCEF: 03/02/2021 22-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15 Pg 2 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 19 of 174

## SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No. 652077/2017

**NOTICE OF APPEAL**

Hon. Barry Ostrager

- against -

KWOK HO WAN, et al.,

Defendants.

**PLEASE TAKE NOTICE**, that Defendant Kwok Ho Wan hereby appeals to the Appellate

Division, First Judicial Department, from the Judgment of the Supreme Court of the State of New

York, County of New York dated February 3, 2021, and entered in the office of the New York

County Clerk on February 3, 2021 (NYSCEF Doc. No. 716), and from each and every part thereof.

Dated: New York, New York Respectfully submitted, March 2, 2021

BAKER & HOSTETLER LLP

By: *\_/s/ John Siegal\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

John Siegal Melissa Carvalho Erica Barrow 45 Rockefeller Plaza New York, New York 10111 212-589-1400 jsiegal@bakerlaw.com mcarvalho@bakerlaw.com ebarrow@bakerlaw.com *Attorneys for Defendant Kwok Ho Wan*

To: Clerk of the County of New York (via NYSCEF) All counsel of Record (via NYSCEF)

# **~r.cm.c <ttnurt nf tft.c ht.c nf N.cw I nrk App.cllat.c iltutstnn: First ~uhicial 11.cpartm.cnt**

Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil

| ('.i,c I Ilk Sd !,11th the· titk t)I the· c'.l',l' a, it appc·,u·, ()I) thL' ,u11111ll)lh. lll)ticc ,,rpL'tlli,,11 ()I ,11dcr tu s llll\\ cau,e· b) \\ hic·h th 111.Jllel \\,h pr is tt, be· ~·n111111c·11L·,·d. Pl ,1' a111c11tkd.</th <th>For Court of Original Instance</th> | For Court of Original Instance | | | |------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------| | Pacific Alliance Asia Opportunity Fund LP. | | | | | - against - Kwok Ho Wan, et al. | | | Date Notice of Appeal Filed For Appellate Division | | ( .i,c· l pc· ' I | | | | | iii Civil Action 0 CPLR article 75 Arbitration | D CPLR article 78 Proceeding D Special Proceeding Other D Habeas Corpus Proceeding | iii Appeal D Original Proceedings 0 CPLR Article 78 0 Eminent Domain 0 Labor Law 220 or 220-b D Public Officers Law§ 36 0 Real Property Tax Law§ 1278 | D Transferred Proceeding 0 CPLR Article 78 0 Executive Law § 298 • CPLR 5704 Review | | Nature of Suit: ( IK·ck up 111 tlm:1· tll. | th1· li) | | ll t)\\ i11g catcg11ri1·-., "hich h1·-.,1 r1·ll1·ct th1· 11:1turc tlf till' 1·a,1·. | | • Administrative Review | !ii Business Relationships | !ii Commercial | iii Contracts | | • Declaratory Judgment | D Domestic Relations | • Election Law | D Estate Matters | | D Family Court | D Mortgage Foreclosure | D Miscellaneous | 0 Prisoner Discipline & Parole | | • Real Property ( other than foreclosure) | • Statutory | 0 Taxation | • Torts |

| | Appeal | | | |--------------------------------------------------------------------------|------------------------------------------------------------------------------------|-------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Paper Appealed From (Check one only): | | | If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. | | D Amended Decree • Amended Judgement • Amended Order • Decision | • Determination D Finding • Interlocutory Decree • Interlocutory Judgment | • Order 0 Order & Judgment D Partial Decree • Resettled Decree | • Resettled Order • Ruling D Other (specify): | | D Decree | i!!I Judgment | D Resettled Judgment | | | Court: | El Supreme Court | New York County: | | | Dated: 02/03/2021 | | Entered: 02/03/2021 | | | Judge (name in full): Hon. Barry R. Ostrager | | Index No.:652077/2017 | | | Stage: | D Interlocutory i!!I Final • Post-Final | D Yes • No Trial: | lfYes: 0 Jury D Non-Jury | | | Prior Un perfected Appeal and Related Case Information | | | | | Index No. 150823/2021. Dismissed without prejudice. Original Proceeding | | | | | | | | | | | Proceeding Transferred Pursuant to CPLR 7804(g) | | | Court: | | | | | Judge (name in full): | | | | | | Choose Court | | | | | CPLR 5704 Review of Ex Parte Order: | | | | | | | | | Court: | Choose Court | County: | Choose Countv | | Judge (name in full): | Description of Appeal, Proceeding or Application and Statement of Issues | Dated: | |

#### **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 725 RECEIVED NYSCEF: 03/02/2021 22-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15 Pg 5 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 22 of 174

Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal.

Without limiting the arguments that may be presented on appeal, Defendant-Appellant Kwok Ho Wan states: that the Judgment should be reversed in its entirety; that the Supreme Court's orders which, inter alia, imposed sanctions and a judicial estoppel upon him, granted Plaintiffs motion for summary judgment against him, and awarded damages against him, were in error and should be reversed; and that numerous genuine issues of material fact existed as to both liability and damages that should have precluded the entry of summary judgment on either liability or damages.

## Party Information

Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court.

| No. | Party Name | |-----|---------------------------------------------| | 1 | Pacific Alliance Asia Opportunity Fund L.P. | Plaintiff | | 2 | Kwok Ho Wan | 3 | Genever Holdings LLC | 4 | Genever Holdings Corporation | s | | | 6 | | | 7 | | | 8 | | | 9 | | | 10 | | | 11 | | | 12 | | | 13 | | | 14 | | | 15 | | | 16 | | | 17 | | | 18 | | | 19 | | | 20 | | | Original Status | | | | -----------|-----------------|--------------------------------------------|-----|--| | Appellate Division Status El Respondent | | | | Defendant | | G Appellant | Ell | | | Defendant | El | - None | G | | | Defendant | | 13 None | G | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

#### **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 725 RECEIVED NYSCEF: 03/02/2021 22-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15 Pg 6 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 23 of 174

| in the spaces provided. | | | Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or himself, the box marked "Pro Se" must be checked and the appropriate information for that litigant must be supplied | |--------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------|--------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | Attorney/Firm Name:Edward Moss, O'Melveny & Myers LLP | | I | | Address:? Times Square | | | | | City:New York | I State:New York | I Zip:10036 | I Telephone No:212-326-2000 | | E-mail Address:emoss@omm.com | | | | | Attorney Type: | D Assigned Retained | • Government | • Prose • Pro Hae Vice | | | Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Stuart Sarnoff, O'Melveny & Myers LLP | | I | | Address:7 Times Square | | | | | City:New York | I State:New York | I Zip:10036 | I Telephone No:212-326-2000 | | E-mail Address: ssamoff@omm.com | | | | | Attorney Type: | D Assigned Retained | D Government | • Pro Se • Pro Hae Vice | | Attorney/Firm Name: Robert W. Seiden | Party or Parties Represented (set forth party number(s) from table above): | | \ | | Address:1120 Avenue of the Americas | | | | | City:New York | I State:NewYork | I Zip:10036 | I Telephone No:212-626-6708 | | | E-mail Address:rseiden@seidenlegal.com | | | | Attorney Type: | D Assigned Retained | D Government | • Prose • Pro Hae Vice | | Address:45 Rockefeller Center | Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: John Siegal, Baker & Hostetler LLP | | \ | | City:New York | I State:New York | I Zip:10111 | I Telephone No:212-589-1400 | | E-mail Address:jsiegal@baker1aw.com | | | | | Attorney Type: | D Assigned Retained | D Government | • Pro Se 0 Pro Hae Vice | | | Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Aaron Mitchell, Lawall & Mitchell, LLC | | a | | Address: 99 Church Street, 4th floor | | | | | City: White Plains | I State:New York | I Zip: 10601 | I Telephone No:973-285-3280 | | E-mail Address:aaron@lrnesq.com | | | | | Attorney Type: | • Assigned Retained | 0 Government | • Prose • Pro Hae Vice | | | Party or Parties Represented (set forth party number(s) from table above): | | 3 MG,\ t{ | | Attorney/Firm Name: | | | | | Address: | | | | | City: | I State: | I Zip: | I Telephone No: | | E-mail Address: | | | | | | • Assigned | • Government | • Pro Hae Vice |

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUNDL.P.,

**17 652077**

Plaintiff,

Index No. 652077/2017

**[liftOI OSEff] JUDGMENT**

Defendants.

WHEREAS, on April 18, 2017, Plaintiff Pacific Alliance Asia Opportunity Fund L.P., filed a complaint against Defendant Kwok Ho Wan, a/k/a Kwok Ho, a/k/a Gwo Wen Gui, a/k/a Guo Wengui, a/k/a Guo Wen-Gui, a/k/a Wan Gue Haoyun, a/k/a Miles Kwok, a/k/a Haoyun Guo ("Kwok"), alleging a cause of action for breach of contract against Defendant Kwok.

**FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 716 RECEIVED NYSCEF: 02/03/2021

Pg 7 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 24 of 174

WHEREAS, on April 18, 2019, Plaintiff filed a First Amended Complaint against Kwok, and Genever Holdings LLC, and Genever Holdings Corporation ( together with Genever Holdings LLC, the "Genever Defendants"), alleging causes of action for (i) breach of contract against Defendant Kwok and (ii) veil piercing against the Genever Defendants.

WHEREAS, on July 24, 2020, Plaintiff moved for partial summary judgment on its breach of contract claim against Kwok, and the motion was fully briefed and heard before Justice Barry R. Ostrager, who issued a Decision and Order dated September 15, 2020, which was entered in the New York County Clerk's Office on September 16, 2020, granting Plaintiffs motion on Count I of the Amended Complaint for breach of contract, and directed Plaintiff move by Notice of Motion to establish damages on Count I no later than October 14, 2020. **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM**INDEX NO. 652077/2017NYSCEF DOC. NO. 725RECEIVED NYSCEF: 03/02/20216 of 922-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15

## **FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 716 RECEIVED NYSCEF: 02/03/2021 Pg 8 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 25 of 174

## **17 652077**

WHEREAS, (i) on September 21, 2020, Plaintiff moved by Notice of Motion to establish damages, legal fees and expenses; (ii) Plaintiff agreed to temporarily withdraw, without prejudice and with the Court's permission and the other parties' understanding that it would be renewed at a later date, the portion of its application relating to legal fees and expenses (i.e., enforcement costs); and (iii) the motion was fully briefed and heard before Justice Barry R. Ostrager, who issued a Decision and Order dated December 18, 2020 (the "Damages Order"), and entered into the New York County Clerk's office on December 18, 2020, directing the Clerk of Court to enter judgment in favor of Plaintiff and against Defendant Kwok in the amount of \$46,426,489.00 plus contractual interest at a rate of 15% per annum from effective date of December 31, 2010 and at the statutory rate of 9% per annum from the date of entry of this decision and order. **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM**INDEX NO. 652077/2017NYSCEF DOC. NO. 725RECEIVED NYSCEF: 03/02/20217 of 922-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15

NOW, upon motion ofO'Melveny & Myers LLP, attorneys for Plaintiff, it is:

ADJUDGED that Plaintiff Pacific Alliance Asia Opportunity Fund L.P., having a business address at 33/F, Three Pacific Place, 1 Queen's Road East, Hong Kong, have judgment against and do recover from Defendant Kwok Ho Wan, residing at 781 Fifth Avenue, 18th Floor, New York, NY 10022, the amount of **\$46,426,489.00** , plus contractual ------------ interest in the amount **of \_\_\_ ~\$\_6\_9~,\_4\_4\_8~,\_9\_3\_9\_.\_7\_1 \_\_\_\_\_ ,** plus post-judgment interest at the statutory rate of9% in the amount **of \_\_\_ \$\_5\_2\_6\_,\_5\_9\_0\_.\_8\_6 \_\_\_\_\_\_ ,** for a total of

**X \$116,402,019.57** , and Plaintiff shall have execution thereof.

| Ji ii1~nHt 1i~1111••11t0£c11 this _th Ja5 cf | | | !OH , | | |----------------------------------------------|---|-----|---------------|-----------| | FILED | | | 1/lt;tlk H | ~~-- - | | Feb 03 2021 NEW YORK | | 3rd | Clerk Feb. | 2021 | | COUNTY CLERK'S OFFICE | 2 | | | |

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUNDL.P.,

Plaintiff,

KWOK HOW AN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAO YUN, *a/k/a* MILES KWOK, *a/k/a* HAOYUN GUO, GENEVER HOLDINGS CORPORATION, and GENEVER HOLDINGS LLC, **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM**INDEX NO. 652077/2017NYSCEF DOC. NO. 725RECEIVED NYSCEF: 03/02/20218 of 922-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15

Index No. 652077/2017

**AFFIRMATION OF EDWARD MOSS, ESQ.**

![](_page_25_Picture_6.jpeg)

Defendants.

I, Edward Moss, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirm, under penalty of perjury, pursuant to the Civil Practice Law

**FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 716 RECEIVED NYSCEF: 02/03/2021

Pg 9 of 10 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 26 of 174

and Rules of the State ofNew York§ 2106, as follows:

1. I am a member of the bar of this Court and a partner in the law firm of O'Melveny

& Myers LLP, counsel ofrecord for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.

("PAX") in this matter.

2. I am fully familiar with the facts and circumstances in this action. For purposes

of entry of this judgment, I submit this affirmation waiving costs and disbursements.

Dated: January 25, 2021 New York, New York By: /s/ *Edward Moss* Edward Moss

| | | | | | | FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM | | INDEX NO. 652077/2017 | |---------------------|--|---------------|-----------|----------------|--------------------|--------------------------------------------------|------------|-----------------------------| | NYSCEF DOC. NO. 716 | | Case 22-50073 | Doc 432-3 | Filed 05/24/22 | | Entered 05/24/22 23:04:58 | Page 27 of | RECEIVED NYSCEF: 02/03/2021 | | | | | | | Pg 10 of 10 174 | | | |

SlXPRE.\lE COURT Of THE STATE OF NE\V YC)RK COUNTY or··Nt\v·.·vonK fod~KNn,. 652077/2(H7

PACTFlC. ALJ.lANC E ASl.A OFPO.RTl)NfTY FU ND LJt,

KWOK HO W.AN,. *dlkht* KWOK HO, ,#kh GWO \\.'EN oc 1,· {l-''ls,/t1. ··Gt.Jo··tvENG·Ul, .tuk·\I.·GUn•·"'{ EN:..ou1, *a/l:.ld* W.AN GUE HAO-YUN, a//4/a NULE:S K\VOK, idkki HAOYUN GLD, (iENE\/ER HOL1)1NGS (.IJRm)RA.TiON, and GEN EV'hR HOLDINGS LLC, **FILED: NEW YORK COUNTY CLERK 03/02/2021 04:42 PM**INDEX NO. 652077/2017NYSCEF DOC. NO. 725RECEIVED NYSCEF: 03/02/20219 of 922-01073-dsj Doc 14-15 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 15

![](_page_26_Picture_8.jpeg)

## **JUDGMENT**

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22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Pg 1 of 26 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 28 of 174

# **EXHIBIT 16**

22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 29 of

Pg 2 of 26

174

**FILED: APPELLATE DIVISION - 1ST DEPT 10/15/2021 02:10 PM** 2021-00740

NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/15/2021

MARK C. ZAUDERER *(Time Requested: 15 Minutes)*

*To be Argued by:*

# New York Supreme Court

Appellate Division—First Department

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

*Plaintiff-Respondent,*

– against –

KWOK HO WAN, a/k/a Kwok Ho, a/k/a Gwo Wen Gui, a/k/a Guo Wengui, a/k/a Guo Wen-Gui, a/k/a Wan Gue Haoyun, a/k/a Miles Kwok, a/k/a Haoyun Guo,

*Defendant-Appellant,*

– and –

GENEVER HOLDINGS CORPORATION and GENEVER HOLDINGS LLC,

*Defendants.*

## **REPLY BRIEF FOR DEFENDANT-APPELLANT**

GANFER SHORE LEEDS & ZAUDERER LLP 360 Lexington Avenue New York, New York 10017 (212) 922-9250 mzauderer@ganfershore.com imatetsky@ganfershore.com jcohen@ganfershore.com

*Attorneys for Defendant-Appellant*

New York County Clerk's Index No. 652077/17

**Appellate Case No.: 2021-00740**

## **TABLE OF CONTENTS**

## **Page**

| | TABLE OF AUTHORITIES ii | |-----------------------|-----------------------------------------------------------------------------------------------------------------------------------------------| | PRELIMINARY STATEMENT | 1 | | | ARGUMENT 2 | | POINT I | | | | THE JUDGMENT SHOULD BE REVERSED BECAUSE IT WAS BASED ON AN INCORRECT APPLICATION OF JUDICIAL ESTOPPEL 2 | | A. | The Elements of Judicial Estoppel Were Not Present 2 | | B. | PAX's Judicial Admissions Theory, Which Was Not Adopted by the Motion Court, Lacks Merit 8 | | C. | PAX's "Sanctions for Perjury" Theory, Which Was Not Adopted by the Motion Court, Lacks Merit 12 | | D. | PAX's Contention that It Was Entitled to Summary Judgment Apart from the Judicial Estoppel Ruling Is Meritless15 | | POINT II | | | | THE JUDGMENT SHOULD BE REVERSED BECAUSE THE MOTION COURT ERRED BY REJECTING THE DEFENSE THAT PAX FAILED TO MITIGATE ITS DAMAGES16 | | | CONCLUSION20 |

## **TABLE OF AUTHORITIES**

## **Page(s)**

## **Cases:**

| 35 W. Realty Co., LLC v. Booston LLC, 171 A.D.3d 545 (1st Dep't 2019) 2 | | |--------------------------------------------------------------------------------------------------------------------------------------------|--| | Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197 (2d Dep't 2019) 8 | | | Barish v. Association of the Bar, 20 N.Y.2d 154 (1967) 5 | | | Bernstein v. Freudman, 180 A.D.2d 420 (1st Dep't 1992)18 | | | Carr v. Caputo, 114 A.D.3d 62 (1st Dep't 2013) 3 | | | CDR Créances S.A.S. v. Cohen, 23 N.Y.3d 307 (2014) 13, 14 | | | D & L Holdings, LLC v. RCG Goldman Co. LLC, 287 A.D.2d 65 (1st Dep't 2001)3, 4 | | | Goodman v. Skanska USA Civil, Inc., 169 A.D.3d 1010 (2d Dep't 2019) 5 | | | Koch v. National Basketball Ass'n, 245 A.D.2d 230 (1st Dep't 1997)5, 6 | | | MacArthur Props. I, LLC v. Galbraith, 182 A.D.3d 514 (1st Dep't 2020) 3 | | | Matter of Daniel C., 99 A.D.2d 35 (2d Dep't 1984)11 | | | Matter of Daniel M. G. v. Annette P., 181 A.D.3d 461 (1st Dep't 2020)8, 12 | | | Matter of Nonhuman Rights Project, Inc. v. Breheny, 189 A.D.3d 583 (1st Dep't 2020), leave to appeal granted, 36 N.Y.3d 912 (2021) 7 | | | Micro-Link, LLC v. Town of Amherst, 155 A.D.3d 1638 (4th Dep't 2017) 5-6 | |

## 22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Pg 5 of 26 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 32 of 174

| MPEG LA, LLC v. Samsung Elec. Co., Ltd, 166 A.D.3d 13 (1st Dep't 2018) 3 | | |-----------------------------------------------------------------------------------------------|---------| | Napoli v. Bern, 171 A.D.3d 489 (1st Dep't 2019)14 | | | Nestor v. Britt, 270 A.D.2d 192 (1st Dep't 2000) 6 | | | Olszewski v. Park Terrace Gardens, Inc., 18 A.D.3d 349 (1st Dep't 2005) 7 | | | Orr v. Urban American Mgmt. Corp., 172 A.D.3d 512 (1st Dep't 2019) | 4, 5, 6 | | Pacific Alliance Asia Opportunity Fund v. Kwok, 160 A.D.3d 452 (1st Dep't 2018) 3 | | | Patmos Fifth Real Estate, Inc. v. Mazl Bldg., LLC, 189 A.D.3d 632 (1st Dep't 2020)3, 4 | | | Peters v. Peters, 146 A.D.3d 503 (1st Dep't 2017)14 | | | Rahman v. Smith, 40 A.D.3d 613 (2d Dep't 2007) 9 | | | Tynan Incinerator Co. v. International Fidelity Ins. Co., 117 A.D.2d 796 (2d Dep't 1986)18 | | | Wells Fargo Bank N.A. v. Webster Bus. Credit Corp., 113 A.D.3d 516 (1st Dep't 2014)3, 4 | | | Zanani v. Sutton Apts. Corp., 193 A.D.3d 536 (1st Dep't 2021) 5 | |

## **Statutes & Other Authorities:**

| CPLR 3123 9 | | |-------------|--| | CPLR 312612 | |

### 22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Pg 6 of 26 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 33 of 174

## **PRELIMINARY STATEMENT**

PAX argues that Mr. Kwok should be judicially estopped because he initially prevailed in this action when the motion court granted his *forum non conveniens* motion – and thus asks the Court to disregard the critical fact that on PAX's appeal, this Court reversed that very decision below and denied Mr. Kwok's motion. As a matter of New York law, a party whose temporary win is later overturned is not the prevailing party for the application of judicial estoppel. Because the motion court's granting of summary judgment was predicated entirely on its erroneous judicial estoppel ruling, the judgment should be reversed.

Perhaps recognizing the flaws in the motion court's ruling, PAX suggests several other potential grounds for affirmance, which it admits the motion court did not discuss. PAX's alternative arguments fail. PAX's assertion that Mr. Kwok made "formal judicial admissions" that the documents were authentic is not borne out because the statements it cites – which were made not by Mr. Kwok himself, but by former counsel for this non-English-speaking litigant – are cited out of context. None of these statements was a clear, unequivocal, and definitive admission of fact – an essential characteristic of a formal judicial admission. Mr. Kwok's deposition, at which he testified that the documents did not bear his signature, was his first opportunity to speak for himself about the documents and their authenticity.

### 22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Pg 7 of 26 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 34 of 174

Nor is there a basis for this Court to simply reject Mr. Kwok's testimony as a matter of law, as PAX also suggests. Consistent with this State's policies of affording litigants due process and resolving cases on their merits, Mr. Kwok should be allowed to present his factual defenses to PAX's claims – including evidence regarding whether the documents are authentic – to the trier of fact.

Finally, even if summary judgment on the issue of liability was properly granted in PAX's favor – which it was not – then issues of fact existed on Mr. Kwok's defense that PAX failed to mitigate its damages, as required under both New York and Hong Kong law.

## **ARGUMENT**

## **POINT I**

## **THE JUDGMENT SHOULD BE REVERSED BECAUSE IT WAS BASED ON AN INCORRECT APPLICATION OF JUDICIAL ESTOPPEL**

## **A. The Elements of Judicial Estoppel Were Not Present**

PAX concedes, as it must in the face of this Court's precedents, that judicial estoppel applies only "where the party 'obtained a favorable ruling or judgment . . . as a result' of [an allegedly] inconsistent position. (PAX Br. 9, quoting *35 W. Realty Co., LLC v. Booston LLC*, 171 A.D.3d 545, 545 (1st Dep't 2019)). Here, Mr. Kwok did not obtain a "favorable ruling or judgment" on the *forum non conveniens* issue, because after he initially prevailed before the motion court, this Court reversed the decision below, denied Mr. Kwok's motion to dismiss, and directed that this action

### 22-01073-dsj Doc 14-16 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 16 Pg 8 of 26 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 35 of 174

proceed in New York. *Pacific Alliance Asia Opportunity Fund v. Kwok*, 160 A.D.3d 452 (1st Dep't 2018). Nor did even the motion court's initial decision, much less this Court's reversal, make a determination on the authenticity of documents (which, contrary to PAX's assertion, did not come from Mr. Kwok's "own files").

In numerous decisions discussed in Mr. Kwok's initial Brief (*see* Kwok Br. 17-19), this Court has held that a party must have secured a judgment or other final relief in its favor through the benefit of its prior, allegedly inconsistent position, before judicial estoppel can be invoked. *See, e.g.*, *Patmos Fifth Real Estate, Inc. v. Mazl Bldg., LLC*, 189 A.D.3d 632, 633 (1st Dep't 2020); *MacArthur Props. I, LLC v. Galbraith*, 182 A.D.3d 514, 514 (1st Dep't 2020); *MPEG LA, LLC v. Samsung Elec. Co., Ltd*, 166 A.D.3d 13, 21 (1st Dep't 2018); *Wells Fargo Bank N.A. v. Webster Bus. Credit Corp.*, 113 A.D.3d 516, 516 (1st Dep't 2014); *Carr v. Caputo*, 114 A.D.3d 62, 71 (1st Dep't 2013). Here, Mr. Kwok obviously did not obtain a judgment in his favor in this action, given that this very appeal is taken from the judgment entered *against* him.

PAX argues that a party need not have obtained a judgment in order to be judicially estopped, relying on *D & L Holdings, LLC v. RCG Goldman Co. LLC*, 287 A.D.2d 65, 71 (1st Dep't 2001). While the *D & L Holdings* court held that the document by which the party gained relief need not be *labeled* as a "judgment," it reaffirmed, rather than negated, the rule that judicial estoppel applies only where "a

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party obtains relief by maintaining one position, and later, in a different action, maintains a contrary position." *Id.* at 71-72. To the contrary, judicial estoppel was applied in that case only because "D & L actually achieved the relief it sought" from the court in the earlier proceeding. *Id.* at 72.

As this Court has explained, to be estopped, a party must "prevail" and obtain a favorable ruling in the litigation by virtue of its alleged prior position. *See, e.g., Patmos*, 189 A.D.3d at 633 ("The claim was not barred by judicial estoppel given that, even if contradictory, none of defendants' prior positions prevailed."); *Wells Fargo*, 113 A.D.3d at 516 (1st Dep't 2014) ("As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply."). Here, PAX advances the remarkable argument that Mr. Kwok prevailed in obtaining a favorable ruling on *forum non conveniens* because the motion court initially granted his motion to dismiss – even though this Court, on PAX's appeal from that ruling, reversed the decision below and denied Mr. Kwok's motion.

PAX's position – that a party is deemed to have prevailed on an issue even when an initial ruling in his favor is later reversed – is squarely at odds with recent decisions by this Court explaining what "prevailing" and obtaining a "favorable ruling" mean. This Court's decision in *Orr v. Urban American Mgmt. Corp.*, 172 A.D.3d 512 (1st Dep't 2019), is directly on point. In that case, a party initially was granted relief in a bankruptcy proceeding, but the Bankruptcy Court later reopened

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the case, thus negating that relief. This Court ruled that after that change, the Bankruptcy Court's initial ruling could not be the basis for a judicial estoppel:

The reopening of Kartsanis's bankruptcy case renders the doctrine of judicial estoppel inapplicable as it "nullif[ied] the final determination upon which . . . judicial estoppel could be predicated."

*Id.* at 512 (quoting *Goodman v. Skanska USA Civil, Inc*. 169 A.D.3d 1010, 1013 (2d Dep't 2019); *Koch v. National Basketball Ass'n*, 245 A.D.2d 230, 230-31 (1st Dep't 1997)).

PAX contends that cases such as *Goodman* are limited to the bankruptcy context, but suggests no reason that would support any such limitation. PAX argues that "the reopening of a bankruptcy proceeding by the bankruptcy court 'nullif[ies] the final determination upon which . . . judicial estoppel could be predicated.'" (PAX Br. 33 (quoting *Goodman*)). But precisely the same is true in this case: When this Court reversed the motion court's granting of Mr. Kwok's *forum non conveniens* motion and denied the motion, it "nullif[ied]" the prior determination in Mr. Kwok's favor and thereby negated it as a potential predicate for judicial estoppel. *Cf. Barish v. Association of the Bar*, 20 N.Y.2d 154, 158 (1967) ("reversal of a conviction . . . nullifies it as if it had never been"); *Zanani v. Sutton Apts. Corp.*, 193 A.D.3d 536, 538 (1st Dep't 2021) (where decision in defendant's favor was reversed, award of attorneys' fees to defendant under a prevailing-party clause "must likewise be reversed, since the [defendant] is, at this juncture, not the prevailing party"); *Micro-*

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*Link, LLC v. Town of Amherst*, 155 A.D.3d 1638, 1640 (4th Dep't 2017) ("'where a court has vacated an earlier order, the doctrine of . . . law of the case no longer applies. . . . Indeed, 'a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of law of the case.") (citations omitted).

As discussed in our initial Brief, the motion court's and PAX's reliance on *Nestor v. Britt*, 270 A.D.2d 192 (1st Dep't 2000), is misplaced. (*See* Kwok Br. 21- 22). That decision did not even mention, let alone apply, the "prevailing party" or "favorable ruling" requirement for judicial estoppel; it cannot reasonably be read as overriding decades of this Court's precedents, both before and after *Nestor*, recognizing that requirement. And PAX's interpretation of *Nestor* cannot be reconciled with this Court's decisions in *Orr* and *Koch*, both of which held that a subsequent litigation development precludes the application of judicial estoppel where it "nullif[ies] the final determination upon which . . . judicial estoppel could be predicated." *Orr*, 172 A.D.3d at 512; *Koch*, 245 A.D.2d at 231.

Finally, the motion court's judicial estoppel ruling was inconsistent with this Court's holding that judicial estoppel applies only in the context of two or more separate actions or proceedings, while this case involves only a single action. As discussed in our initial Brief, this Court has squarely held that judicial estoppel requires two successive actions:

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We also reject the employer's argument that the owners are judicially estopped from arguing that plaintiff did not sustain a grave injury. The doctrine of judicial estoppel does not apply here because first, the verdict against the owners cannot be considered a ruling in their favor, and second, the inconsistent positions are being asserted in the same action.

*Olszewski v. Park Terrace Gardens, Inc*., 18 A.D.3d 349, 350-51 (1st Dep't 2005).

Contrary to PAX's urging, this Court's clearly stated holding that "judicial estoppel does not apply . . . [where the allegedly] inconsistent positions are being asserted in the same action" (*id.*) cannot be disregarded as mere dictum. Where the Court provides two bases for deciding an issue, both within the same sentence of its opinion, there is no basis for a litigant such as PAX to elevate one as the holding of the case while demoting the other to *obiter* status. *Cf. Matter of Nonhuman Rights Project, Inc. v. Breheny*, 189 A.D.3d 583, 583 (1st Dep't 2020) ("We decline to overrule any of our alternative holdings in *Lavery*, which petitioner erroneously refers to as 'dicta."), *leave to appeal granted*, 36 N.Y.3d 912 (2021). Moreover, even assuming *arguendo* that judicial estoppel could sometimes arise from inconsistent positions taken within the same action – despite this Court's direct holding to the contrary in *Olszewski* – it still could not apply against Mr. Kwok, because as discussed above, his position on the *forum non conveniens* motion did not prevail even within the context of this action.

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The motion court's granting of summary judgment on liability was based entirely on its judicial estoppel decision. Because that decision was erroneous, the judgment should be reversed.

## **B. PAX's Judicial Admissions Theory, Which Was Not Adopted by the Motion Court, Lacks Merit**

Urging alternative grounds to uphold its precipitously awarded judgment without any determinations on the merits, PAX also contends that Mr. Kwok made binding "formal judicial admissions" that the documents were authentic. As PAX itself acknowledges (PAX Br. 36), the motion court did not address or rely on Mr. Kwok's supposed "admissions" as a basis for its rulings, either orally or in its written decisions. In this case, this Court should not exercise its discretion to consider in the first instance arguments that the motion court did not reach or address.

Alternatively, if this Court chooses to consider PAX's alternative contentions, it should reject them. "To constitute a judicial admission, a statement must be 'deliberate, clear, and unequivocal.'" *Bank of N.Y. Mellon v. Gordon*, 171 A.D.3d 197, 211 (2d Dep't 2019) (citation omitted); *accord Matter of Daniel M. G. v. Annette P.*, 181 A.D.3d 461, 463 (1st Dep't 2020) (statement could not be considered a formal judicial admission where it "was not sufficiently conclusive or unequivocal to quality" as such). Even PAX acknowledges that "[t]o be considered a formal judicial admission, a statement "must be one of fact," "must be deliberate, clear, and unequivocal," and must be "made with sufficient formality and conclusiveness."

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(PAX Br. 36-37, quoting *Rahman v. Smith*, 40 A.D.3d 613, 615 (2d Dep't 2007)). The so-called admissions cited by PAX do not meet this standard.

PAX relies primarily upon two alleged admissions, both of which were supposedly made by Mr. Kwok's former counsel. Notably, these "admissions" were not contained in Mr. Kwok's deposition testimony, in which he clearly testified that the documents did not bear his genuine signature, or in any writing signed by Mr. Kwok himself. First, PAX asserts that Mr. Kwok admitted the documents' authenticity in responding to a set of requests for admissions. He did not. PAX's voluminous requests for admissions ("RFAs") (*see* R411-99) included requests that Mr. Kwok admit having executed various documents. However, PAX did not annex those documents as exhibits to its requests for admission. (*Id*.). As a result, neither Mr. Kwok nor anyone on his behalf had the opportunity to review the specific documents at issue, as required by CPLR 3123.

Mr. Kwok's lawyers' responses to the RFAs included a general objection to the RFAs in their entirety as well as specific objections that Mr. Kwok was being asked to stipulate to the authenticity of documents that were not attached. (R411- 78; *see, e.g.,* Responses to Request Nos. 10, 13, 19, 30, 37, 44, and 51). Thus, Mr. Kwok did not admit the authenticity of any specific document, much less did he do so conclusively or unequivocally. How could he have done that, when no specific documents were presented for anyone to review? After receiving the responses and

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objections submitted by Mr. Kwok's then-counsel, PAX advised counsel that PAX would respond "shortly" in order to address his counsel's objections. But PAX never did so, and it never mentioned the so-called "admissions" again until it filed its sanctions motion.

The second document that PAX mischaracterizes as an "admission" was a cover letter to an exhibit list. (*See* NYSCEF Doc. 325). This document was created after the motion court had scheduled an evidentiary hearing on a motion by PAX to attach a New York apartment that it alleged belonged to Mr. Kwok. In advance of that hearing, the parties, through their counsel, entered into a formal stipulation designed to limit the scope of that specific hearing – not, of course, of the entire action – to the attachment-related issues. (NYSCEF Doc. 306). Thus, the parties stipulated that for purposes of the specific evidentiary hearing on the attachment, the court could assume that PAX had a cause of action against Mr. Kwok and a likelihood of success, so that PAX need not prove these elements at the hearing. (*Id.* at 3). The stipulation emphasized that it addressed only the proof that PAX must present at this particular hearing and that PAX was "not relieved of its obligation to prove the merits of each of its claims in order to obtain a final judgment." (*Id*.).

The parties then prepared for the evidentiary hearing on the attachment. The motion court's practice rules required that in advance of the hearing, the parties submit exhibit lists, noting whether the admissibility of the exhibits was stipulated

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or disputed. On April 19, 2019, PAX's counsel submitted a cover letter to the motion court, "writ[ing] jointly under Practice Rule 28 for Part 61 . . . to provide the Court with the . . . materials ahead of the April 26, 2019 evidentiary hearing on Plaintiff's attachment motion" and stating in that context only that, *inter alia,* Mr. Kwok was not disputing the authenticity of PAX's exhibits (NYSCEF Doc. 325 at 1).

Both the April 3, 2019 stipulation and the April 19, 2019 cover letter reflected the parties' efforts, through their counsel, to focus the upcoming evidentiary hearing on the attachment motion solely on attachment-related issues, it being understood that "full merits discovery [would] be held" later in the case. (NYSCEF Doc. 306 at 3). The statements in both documents plainly related solely to the admissibility of the listed exhibits for purposes of the impending attachment hearing. Mr. Kwok did not thereby admit in this cover letter that the exhibits were authentic for purposes of the subsequent merits proceedings, any more than he stipulated to the exhibits' admissibility at a merits trial or that he would not offer any exhibits of his own at that trial. *Matter of Daniel C.*, 99 A.D.2d 35 (2d Dep't 1984), cited by PAX, is readily distinguishable, because in that case counsel's stipulation concerning the scope of the issues was made on the record at the trial on the merits, at which the represented party was present in court and testified under oath – not, as here, in a letter submitted in advance of a hearing on an ancillary procedural issue and submitted for purposes of that hearing.

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A litigant whose counsel entered into a stipulation governing a motion hearing should not be penalized by having the limited-purpose stipulation thrown in his face for a completely different purpose later in the case, and certainly not to the extent of having his main defense vitiated. This Court ought not conclude on the record before it that this cover letter, not signed by Mr. Kwok or even by his counsel, was "sufficiently conclusive or unequivocal to qualify" as a binding judicial admission on Mr. Kwok's behalf. *Matter of Daniel M. G.*, 181 A.D.3d at 463.

This is not a situation in which a party testifies as his or her deposition that "the light was green" and then later submits an affidavit stating "the light was red." Here, Mr. Kwok's first opportunity to speak for himself, when shown the documents at issue, and to address whether they were authentic, was at his deposition. It is undisputed that during his deposition, Mr. Kwok clearly, definitely, and unequivocally stated that his signatures on the documents were *not* authentic. (*See* Kwok Br. 6-7). This Court should not reach out on a theory that the motion court neither discussed nor adopted in order to reject the most reliable evidence of Mr. Kwok's knowledge on a disputed issue of fact: his own deposition testimony.

## **C. PAX's "Sanctions for Perjury" Theory, Which Was Not Adopted by the Motion Court, Lacks Merit**

PAX also suggests that this Court itself grant sanctions against Mr. Kwok. PAX is not seeking sanctions under CPLR 3126 for discovery misconduct, such as failure to provide adequate document discovery or to appear for a deposition.

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Rather, PAX asks the Court to "preclude[e] Kwok from relying on his testimony as to forgery" because PAX says it does not believe the testimony. (PAX Br. 45). There is no basis for such a sanction.

The type of sanction sought by PAX is rarely sought and even more rarely granted. In *CDR Créances S.A.S. v. Cohen*, 23 N.Y.3d 307 (2014), cited by PAX, the Court of Appeals held that courts have inherent power to impose sanctions for conduct that "undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice." *Id.* at 318. But before imposing a sanction on this basis, the moving party "must establish by clear and convincing evidence that the offending 'party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action." *Id.* at 320. The Court of Appeals emphasized that case-terminating sanctions such as dismissal are "an extreme remedy that 'must be exercised with restraint and discretion,'" and only "where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and convincing evidence". *Id.* at 321 (citation omitted). It is only "the rare case" that could warrant such a sanction, and a court's basis for imposing it should be explained. *Id.* at 322.

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In *C.D.R. Créances* itself, the Court of Appeals affirmed the striking of pleadings as a sanction where, *inter alia*, there was testimony that defendants had instructed and conspired with witnesses that they provide false and misleading testimony, including providing them with a written "script" of false answers to be given at depositions; defendants "created fictitious characters" who were the subject of testimony; multiple individuals "repeatedly perjured themselves at their depositions"; and defendants had been criminally convicted for conduct at issue in the litigation. *Id.* at 316-18.

This case, in which the defendant testified that certain documents were inauthentic at his first opportunity to do so, cannot reasonably be analogized to *C.D.R. Créances.* A request that a party "should forfeit his [defenses]" in an action should be denied where it "is unsupported by clear and convincing evidence that [he] engaged in a willful and pervasive scheme to defraud the court that prejudiced [PAX's] ability to [litigate its] claims." *Napoli v. Bern*, 171 A.D.3d 489, 490 (1st Dep't 2019); *see also Peters v. Peters*, 146 A.D.3d 503, 504 (1st Dep't 2017) ("Plaintiff failed to show by clear and convincing evidence that defendants' alleged misstatements were particularly egregious and characterized by lies in furtherance of a scheme designed to conceal critical matters from the court."). To the extent PAX believes there is evidence that contradicts Mr. Kwok's version of the facts, its

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remedy is the one enjoyed by any litigant who disagrees with its adversary's case: to present its evidence to the trier of fact.

## **D. PAX's Contention that It Was Entitled to Summary Judgment Apart from the Judicial Estoppel Ruling Is Meritless**

As the last of its alternative arguments for affirmance, PAX asserts that even if the motion court's order barring Mr. Kwok from disputing the documents' authenticity is overturned, summary judgment was still properly granted because in opposition to PAX's motion, Mr. Kwok did not present evidence or arguments to establish that the documents were forged. (PAX Br. 45-47).

This argument by PAX completely ignores the effect of the preclusion order that the motion court granted at PAX's request; the foundation for summary judgment was that very preclusion order. Purportedly as a sanction, the motion court directed that Mr. Kwok was "judicially estopped from challenging, in opposition to plaintiff's summary judgment motion or at trial, the authenticity of documents defendant Kwok previously sponsored in proceedings before this Court." (R59).

In opposing PAX's summary judgment motion, Mr. Kwok and his counsel were bound by the motion court's directive that they were "judicially estopped from challenging" the authenticity of the documents "in opposition to plaintiff's summary judgment motion". (R59). As part of their opposition papers, Mr. Kwok moved to reargue the judicial estoppel ruling, but the motion court denied that request. (R52- 54). Unless and until the motion court's preclusion order was reversed, either by the

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motion court itself or by this Court, Mr. Kwok was bound by it, as he noted in his opposition papers. (*See* R3213 n.1, R3231 n.1, R3256 n.1). Therefore, he was barred by court order from disputing the authenticity of the documents, nor could he request an evidentiary hearing on that issue, as PAX also argues he should have done. (*See* PAX Br. 46-47). It is at best ironic, and at worst disingenuous, for PAX to fault Mr. Kwok for not challenging the authenticity of the documents in its summary judgment papers. That is the very thing that PAX had successfully convinced the motion court to preclude Mr. Kwok from doing.

## **POINT II**

## **THE JUDGMENT SHOULD BE REVERSED BECAUSE THE MOTION COURT ERRED BY REJECTING THE DEFENSE THAT PAX FAILED TO MITIGATE ITS DAMAGES**

The judgment should also be reversed because the motion court improperly rejected, as a matter of law, Mr. Kwok's defense that PAX failed to mitigate its alleged damages. The motion court did so without conducting an evidentiary hearing or trial, just two months after it had specifically stated on the record that "[w]e are going to have a hearing on the damages issue" and that Mr. Kwok would "be permitted to adduce whatever evidence they have [*sic*], if any, on that theory in connection with the damages hearing." (NYSCEF Doc. 647 at 6).

PAX does not dispute on appeal that plaintiffs in contract actions are generally required to mitigate their damages, rather than seek to collect for losses that they

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could have avoided, under both Hong Kong and New York law. Instead, PAX asserts that there could be no duty to mitigate under the alleged 2013 Deed of Settlement because that document had expired "prior to the post-June 2015 Beijing Police contact." (PAX Br. 49). However, PAX acknowledges that it learned of this opportunity after the apartments were seized by the Beijing Police, which admittedly occurred in February 2015. (PAX Br. 51). An issue of fact exists as to how long afterwards PAX learned of the opportunity, and whether this occurred by June 30, 2015, *i.e.*, within a period of four or five months after the seizures.

PAX also argues that it had no duty to mitigate because the 2013 Deed of Settlement did not obligate Mr. Kwok to cause the apartments to be turned over to PAX, but merely allowed him to do so as an alternative means of performance to payment of the moneys owed under the guarantee. (PAX Br. 51-52). However, as discussed in our initial Brief, PAX had agreed that delivery of the three apartments to it would represent an acceptable alternative performance in lieu of payment of the moneys allegedly owed under Mr. Kwok's guarantee. Mr. Kwok's Hong Kong law expert opined that Hong Kong law would require a reasonable effort to mitigate under these circumstances (*see* R4355-58, R4623-26), and PAX supplies no contrary authority under the law of either jurisdiction. In particular, Mr. Kwok's Hong Kong law expert explained, with citations of authority, that the duty to mitigate applies "to situations, such as the one presented here, where the parties have entered into a

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subsequent agreement to settle the debt which involves alternative forms of repayment, such as the sale and purchase of property." (R4624). As Mr. Kwok's Hong Kong law expert observed, PAX's expert cited no authority in favor of PAX's contention that the duty to mitigate is inapplicable in this context. (*See* R4624-25). In the absence of such authority, the general rule under Hong Kong law (as under New York law) that a party must mitigate would apply.

PAX disputes whether the Beijing Police offer represented a "reasonable" opportunity to mitigate. Under Hong Kong law, "[w]hether or not a party has taken all reasonable steps to mitigate its loss is primarily a question of fact, not law." (R4356 and R4627, citing authorities). "What constitutes 'reasonable steps' for PAX to have taken must be considered and determined by the trier of fact in consideration of all the surrounding circumstances." (R4627). Under New York law also, "[t]he question of whether that party acted reasonably to mitigate its damages is a question of fact." *Tynan Incinerator Co. v. International Fidelity Ins. Co.*, 117 A.D.2d 796, 797 (2d Dep't 1986) (citations omitted); *accord Bernstein v. Freudman*, 180 A.D.2d 420, 421 (1st Dep't 1992). The motion court did not rule directly on this question, which could not properly be resolved as a matter of law, especially given the evidence that PAX viewed the police offer as representing "a good price" (R4360), "less than the market price" (R4348), and a "positive movement" from PAX's point of view (R4361). If PAX had accepted the Beijing

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Police offer, and thereby mitigated its damages by accepting a performance that it had agreed would discharge Mr. Kwok's alleged guarantee, then it could then have asserted a claim for its expenses incurred during the mitigation process.

As noted in our initial Brief, PAX's pursuing and accepting the police offer would not only have substantially reduced the principal amount claimed by PAX, either altogether or at least by tens of millions of dollars, but it also would have reduced PAX's claim for several years' worth of 15% annual interest on that sum, which now represents more than half of the judgment. Instead, PAX chose to litigate against Mr. Kwok, perhaps in pursuit of its animus against him and desire to enforce the alleged personal guarantee for "the sheer satisfaction it would create." (R4579).

Finally, PAX belittles Mr. Kwok's argument that its receipt of possession of the three apartments resulted in value to PAX that should have been offset against the amount of any judgment, to be determined at trial. PAX argues that full performance under the alleged Deed of Settlement required the conveyance of title to PAX, not only possession. Even if PAX's possession of the three apartments did not represent as much value as the conveyance of title would have, it must necessarily have had *some* value. The motion court erred by holding that as a matter of law it had no value at all.

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## **CONCLUSION**

For all the foregoing reasons, the judgment should be reversed.

Dated: New York, New York October 15, 2021

## GANFER SHORE LEEDS & ZAUDERER LLP

By:

Mark C. Zauder Ira Brad Matetsky Jason T. Cohen 360 Lexington Avenue New York, New York 10017 (212) 412-9500 mzauderer@ganfershore.com *Attorneys for Defendant-Appellant, Kwok Ho Wan a/kla Miles Kwok*

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## **PRINTING SPECIFICATIONS STATEMENT**

I hereby certify pursuant to 22 NYCRR 1250.8(j) that the foregoing brief was prepared on a computer using Microsoft Word.

*Type.* A proportionally spaced typeface was used, as follows:

| Name of typeface: | Times New Roman | |-------------------|-----------------| | Point size: | 14 | | Line spacing: | Double |

*Word Count.* The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 4,802.

Dated: October 15, 2021

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# **EXHIBIT 17**

#### 20-12411-jlg Doc 1 Filed 10/12/20 Entered 10/12/20 15:54:19 Main Document Pg 1 of 15 22-01073-dsj Doc 14-17 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 17 2 16Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 55 of 174

United States Bankruptcy Court for the; SOUTHERN DISTRICT OF NEW YORK, MANHATTAN'DIVfSION .Case number/11/atown/ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Chapter ....:!,!\_ • Check if this an amended filing

## Official Form 201 **Voluntary Petition for Non-Individuals Filing for Bankruptcy** 04/20

If more space Is needed, attach a separate sheet to this.form, On the top ·of any additlonal pages,. writ\! \he debtor's name and lhe case number (if known}. For more Information, a sep~ document, *Instructions for Bankruptcy Forms for Non-lndMduals,* is available.

| 1. | Debtor's.natne· | Genever Holdlngs.LLC | | | | | |----|------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------|--|--|--| | 2. | AU other names debtor used in the last'S ·year,; Include any ass,imed names, trade names and do/ngbusmessasnames | | | | | | | 3. | Debtor's federal Employer Identification Number (EIN} | 47-3338202 | | | | | | 4. | Debtor's addrass | Principal place of business | Mailing address, if different from principal place of business. | | | | | | | 781 5th Ave Apt 1801 | | | | | | | | New York, NY 10022-5520 | | | | | | | | Number, Street, City, St?te &.ZIP Code | P .Q. Box, N~mber, Street, City. State & ZlP Code· | | | | | | | New York County | Location of principal a~ets, if different from principal place·of b1,1slness | | | | | | | | 781 5th Ave Apt 1801 New York, NY 10022•5520 Number, Street, City, Stale & ZIP Code | | | | | 5. | Doblor·s website (URL) | | | | | | | 6, | Type of debtor | II Corporation (inchjding Limited Lfaliility Company {Ll:.C) and Limited Liability Partnership (LLP)) • Partnership (excluding LLP) D Otlier. Specify: | | | | |

#### 20-12411-jlg Doc 1 Filed 10/12/20 Entered 10/12/20 15:54:19 Main Document Pg 2 of 15 22-01073-dsj Doc 14-17 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 17 3 16Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 56 of 174

| | | | | | C&se number·(ifkna,m) | | | |-------|-------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------|-----|---------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------|--| | | Genever Holdlngs'LLC Debtor -------------- Name | | | | | | | | 7. | | | | | | | | | | Describe delltor's business | Check A. one: D 101(27~}} (as defined 11 U.S.C. § Health Care Business in | | | | | | | | | II Single Asset Real | | §_ (as del\ned in 11 U.S.C. Estate | 1Q1(51B)} | | | | | | • Railroad{asdefinedin | | 11 U.S.C.§101(44)) | | | | | | | • | | | | | | | | | 101(53A)} (as defined in 11 U.S.C. § Stockbmker | | | | | | | | | U.S.C. § 101{6)i D Commodity Broker. (as defined in _11 ·• | | | | | | | | | U.S.C. 781(3)) Clearing Bank {as defined In 11 § D | | | | | | | | | Noneofthe·above | | | | | | | | | B. Check all that apply | | | | | | | | | • entity (asdescn'bed in'26 U.S.C:§501) :rax-el <empl< th=""></empl<> | | | | | | | | | D vehicle 15 §80a•3J hedge pooled lnvestment {as.defined in u.s.c. Investment Including fund company, or | | | | | | | | | D §80b-2(a)(11)) delinec{rn 15 U.S.C. Investment advisor-(as ',, M •, •• • .··•• : | | | | | | | | | | | C, NAICS (North·American Industry Classilication· Sy,;tem} 4-digit | that besi describes debtor. code | | | | | | See | | http!//WWW.uscourts.govffour-digit-natlonal-association-naicscodes. | | | | | | | 5313 | | | | | | | 8. | Under which chapter of the | Check one: | | | | | | | | Bankruptcy Code is tho debtor | • Chapter 7 | | | | | | | | filing? | • Chap!er9 | | | | | | | | A deblor who is •smaU a | Chec;k 1111 Chapter 11 •. | all | lhat'epply: | | | | | | business debtor" must check first eul>-box. A debtor the as | | D | clebtor business Js.a small The | 101(510), 11 U.S.C. debtor define,fin § as | its.aggregate and | | | | defil)eO in§ 1182(1)wll0 | | | 11onconting-0nt fiquidated cfebts·(exciudlng selected, 52,725;625: lf this sub-boX is | Insiders arfiUates) debts owed to or recent-balance the sheet, attach most | are-fess than of operaliOi'ls, statement | | | | procood under elects to subchaptar V of chapter 11 | | | cash-flow and federal statement. | ·if ar)Y of these documents incomu tax return or | follow the do not exist, | | | | debtor ls a (whether not the or business •sma!J 1TI1Jsl | | | 11 TJ.S.C. § procedure in 1116(1)(8). | | · cfebls | | | | debtor) check the secMd.slib-box. | | D | a debtor defined-in The debtor is as debts owad to (excluding | 1162(1), its aggregate.nonconlingenl 11 U.S.C. § \$7,500,000. and than insiders or affiliates} less are | liquidated it procued choos&s.10 | | | | | | | of Chapter 11. under SubchaptGr V sheet. statement of | selected, lhe thls 15 attach sub-box rr cash-flow and federal income statement, tax | recent balance most of these return, or Ir | | | | | | | operations, documenlsdonotexist, folfowtheprocedurein | l1 U.S.C. § 1116(1)(8). | any | | | | | | • | being filed with this petition. A plan is | | | | | | | | • | the plan Acceptances of were 1126(b). accordance with 11 u:s.c. § | solicited piepollllon from classes one or more | ln cir creditors, | | | | | | • | required periodic The is debtor to rne | 8"llmple, 10K and··10QJ reports ·(for | with the Securities.and the | | | | | | | according.to § ·Exchange Commission for attachment to Voluntary Petition | 13· i5(d) of the Securities Exchange or Non-Individuals Filinri Bankruptcy for | of 1934. File Act Chapier 11 (Olncia) vnder- | | | | | | | form. 201A} with this · Form | · | | | | | | | D | The debior is a shell'company as | defined-in Iha Securities Exchange Act | 1934 Rule ·12b-2. or | | | | | D 12 Chapter | | | | | | | ·s. | prior banl <l'uptcy were</l'uptcy | Ill No. | | | | | | | | the cases filed by against or debtor within IHt 8 the | • Yes. | | | | | | | | yean;? · | | | | | | | | | If than 2 cases, attach a· more | District | | When | Case number | | | | | list ,separate | District | | --------- When | ------- ·case.rumber | | | | | | | | --------- | _______ | | | | 10. · | bankruptcy cases .Are any | II No | | | | | | | | filed by a pending being or business partner or.an afflUate of the debtor1 | • Yes. | | | | | | | | | | | | | | | | | If than 1, List au cases. more attach separate list a | Debtor | | ___________________ | Relationship | | | | | | District | | When _________ | Case number._ if _______ | known | | | | | | | | | | | | | | | | | | | |

Voluntary Patmon for Non-llldlviduali; Filing for-Bankruptcy page2

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| Debtor | Genever Holdings LLC | | | | Casenumber{ifk•~m) | _____________ _ | | | | | |--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------|--|--|--|--| | | Name | | | | | | | | | | | 11. | WhylsthocasefUodln this district? | Check all that apply: | | | | | | | | | | | | II | assets days immediately its domicile, prfncipal place of business, or principal in this district for 180 Debtor has had of s·uch days than other distriet. preceding the date of this petition or tor a longer part 180 in any | | | | | | | | | | | 0 affiliate, partne1, partnership is pending in lhis district A bankruptcy case concerning debtor's general or | | | | | | | | | | 12, | Doos the debtor or own have possession of any real or personal property rioeels property tllilt attontion? immodian\ | Ill No | | | | | | | | | | | | • Yes. | if for property that neeci,fimmediate attention.·Attach additional sheets needoo. Answer below each | | | | | | | | | | | | Why does | tho property nood immediati, | that attention?.(Check an | apply.) | | | | | | | | | 0 It poses | hazard lo public health safely. or | | | | | | | | | | | alleged pose .the hazard? What is | | | | | | | | | | | | 0 needs It | to be | pl)ysicaliysecured or prolected from the weilther, | | | | | | | | | | 0 rivestoc~. | Ii includes perishable goods seasonal goods, | assets could quiekly deteriorate that or produce, securities-elated assets meat, dairy, or | (for example, lose value without attention or other options). or | | | | | | | | | • Other | | | | | | | | | | | | Where rs | property? tho | | | | | | | | | | | | | Number, Street, City, Stata & ZIP Code | | | | | | | | | | Is the | property insured? | | | | | | | | | | | • No | | | | | | | | | | | | • Yes. | Insurance agency | | | | | | | | | | | | Contact name | | | | | | | | | | | | P,hone | | | | | | | | | | | | | | | | | | | | | Dabtor'e osliinatfon of | | C/Jecxone: | | | | | | | | | | available funds | | D Funds will | oo available for | distribution unsecured cre<;litors. to | | | | | | | | | | II Aft.er any | admfnistratiile·expenses | paid, no.funds will be avaiahle to are | unsecured creditors. | | | | | | | 14.· Estimated number. of. | 11111-49 | | | • 1.000-5,000 | • 25.001-50,000 | | | | | | | creditors | 050-99 | | | 0 5001-10.000 | • 50,001-100,000 | | | | | | | | • 100-199 | | | • 1.0,001-25,000 | • tylore than100,ooo | | | | | | | | 0200-999 | | | | | | | | | | | 15. Estimated Assets | 0 \$0 - | \$50;000 | | 0 \$1,000,001 - \$10 miAlon | D-\$500,000,001 • \$1 billion | | | | | | | | 0 \$50,001 | \$100,000 - | | • \$10,000,001 \$5o· million .• | • \$10-billion \$1,000,000:ocl1 • | | | | | | | | • \$100,001 • \$500,000 million. | | | \$50,000,001 • \$100"mifllon 1111 | • \$50 billion \$10,000,000,001 - billion • | | | | | | | | 0 \$500,001 - | \$1 | | • milfion \$100,000,001 \$_500 - | \$50 -More than | | | | | | | 16, Estimated liabilities | • \$0 | • \$50,000 | | \$10 million D \$1,000,001 • | • \$1 \$500,000,001 • billion | | | | | | | | 0 | \$50,001 • \$100,000 | | • \$10,000,001 \$50 mHli0!) • | 0 \$1,000,000,001- billion 510 | | | | | | | | • | \$100,001 • \$500,000 | | Ill \$50.000,001 • \$100 mi16on | 0 \$10.000,000,001 • \$50 billion | | | | | | | | 0 | \$500,001'-\$1 million | | \$500 0 \$100,000,001 - million | 0 \$50 billion More lhan | | | | | | | | | | | | | | | | |

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| Debtor | Genever Holdings LLC | | | Case ~umber (i/Anovm) _____________ _ | | | |----------------------------------------------------------------------------------|---------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--| | | N•mo | | | | | | | | | Request for Relief, Oet:laration, and Signatures | | | | | | | | forupto20years,orbo!h.18U.S.C.§§ 152, 1341.1519;and3571. | | WARNING - Bankruptcy fraud is a serious crime. Making a false statement in cOMection wi!h a bankruptcy case ·car1 result in fines up to \$500,000 or imprisonment | | | | 17. Declaration and signature of autllorlzcd ' representative of debtor | | The debtor requests relief in accordance with 'the chapter of title 11, United Slates Code, specified in· this patiUon. I have been authorized to file this petition oo behalf or the debt()(. | | | | | | | | | | I have examined the information in this petition and have a reasonable belief µiat the information is true.and correct. | | | | | | I declare under penally of pe!jury that the foregoing is true and correci,. | | | | | | | | Executed on | | | | | | | | X | | Yanping Wang | | | | | | | | Printed name | | | | | | X Isl Kevin J. Nash | | Date October 6, 2020 | | | | | 18. Signalure of attorney | Signature of attorney for debtor | | MM/DD/ YYYY | | | | | | Kevin J. Nash | | | | | | | | Prinled·name· | | | | | | | | Goldberg Weprin Finkel Goldstein LlP Firm name | | | | | | | | 1501 Broadway 22nd Floor New York, .NY 10036 | | | | | | | | Number, Street, City,.State & ZlP Code | | | | | | | | Conla.cl phone (212) 221~5700 | Email address | knash@gwfglaw.com | | | | | | Kevin ·J. Nash Bar number and State | | | | |

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

**-------------------------------------------------------------x**

In re: Chapter 11

Genever Holdings LLC, Case No.

Debtor.

**-------------------------------------------------------------x**

### **DEBTOR'S DECLARATION PURSUANT TO LOCAL BANKRUPTCY RULE 1007-2**

Y anping Wang declares the following under penalties of perjury pursuant to 28 U.S.C. § 1746:

1. I am the duly designated representative of Genever Holdings LLC (the "Debtor"), a New York limited liability company with offices at The She1Ty-Netherlands Apartments, 781 Fifth Avenue, New York, NY 10022, Unit 1801. As such, I have the requisite knowledge of the Debtor's financial and legal affairs to make this Declaration on the Debtor's behalf.

2. This Declaration is submitted in support of the Debtor's Chapter 11 filing pursuant to Local Rule 1007-2 to assist the Court, creditors and other parties-in-interest in understanding the circumstances necessitating the filing of the Chapter 11 petition, the Debtor's debt and capital structure, and the Debtor's plans to emerge from bankruptcy.

#### **Lead-Up to the Chapter 11 Filing**

3. The Debtor is the owner of the entire 18th Floor Apartment and auxiliary units in the She1Ty Netherland Hotel located at 781 Fifth Avenue, New York, NY 10022 (the "Premises"). The Debtor's interest in the Premises is memorialized by approximately 3,000 shares of She1Ty Netherland cooperative stock and corresponding proprietary leases.

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4. The Premises were acquired in 2015 for the total sum of approximately \$70 million,\_largely with funding provided °!)y Bravo L-µck Limiteq. ("Bravo") pursuant to a certain trust agreement, plus approximately \$5 million advanced by Mr. Qiang Guo. The trust recpgnizes Bravo as the beneficial owner of the Premises based.on its funding of most *of* the purchase price. Bravo is a company owned by Mr. Qiang Guo, the son of Mr. Kwok Ho Wan a/k/a Miles Kwok, who serves mainly in a representative capacity as the manager of the Debtor and trustee llilder the. trust agreement.

5. Since acquisition of the Premises, Bravo has. also chiefly funded maintenance charges and assessments. Miles Kwok was a prominent real estate investor and businessman in China before a host of financial ·and legal troubles with the\_ Communist Ruling Party forced him to leave the country. Mr. Kwok-is currently seeking.political asylum in the United States. amidst false corruption charges lodged by the Chinese government.

6. The Debtor and Nlr. Kwok have been engaged in certain litigation .in the U.S.A. since 2017 involving an entity known as Pacific Alliance Asia Opportunity Fund {';Pacific Alliance"). The· Pacific Alliance litig~tion relates to a -personal guarantee of loan indebtedtie~s unrelated to the Premises. While the Debtor is not a party to Mr. Kwok's loan transactions involving Pacific Alliance, it has been joined in a lawsuit filed by Padfic Alliance in the Supreme Court;New York County [Index No. 652077/2017] (the ''Pacific Action") seeking to impose alter ego liability on the Debtor and others.

7. TI1isfawsuit, which is being actively defended, puts a cloud on-the future direction and ownership of the Premises. In the meanwhile, the .Premises have be:come subject to non-payment proceedings 1nstituted by the Sherry.:.Netherlands Hotel fQr unpaid maintenance

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charges of approximately \$1,000,000. The ability of Bravo to generate funds to pay maintenance fa ·hampered by challenges over the ownership of the Premises.

8. The Premises were previously subject to a motion for a pre~judgment attachment motion filed by Pacific Alliance in April 2019. That motion was resolved following an evidentiary bearing without issuance of an attachment, based upon a consent order issued by the State Supreme Court requiring the Debtor and Mr. Kwok to provide prior notice to Pacific Alliance of any future dfsposition of the Premises.

9. Despit~ this consent order, Pacific Alliance has recently filed a second motion by order "to show cause return13-ble in midwOctober seeking to restrain Mr. Kwok from selling, assigning or transferring any property in wbich he l\_1as an interest. Ostensibly, this order to show cause is again directed against the Premises, although, functionally, the order.to show ·cause, appears duplicative of the- since-resolved pre-judgment motion-for-attachment.

10. Before the Premises become further entangled 'in litigation involving competing claims of ownership, the Debtor is filing this·-Chapter 11 petition to gain th~ needed flexibili'ty to be in a ·position to maximize value under the rehabilitative power of the Bankruptcy Court. The Chapter 11 allows for a possible sale of the- Premises, if necessary, while protecting · the legitimate rights or claims of both Bravo and Pacific Alliance.

11. Indeed, with the onset of the Covid-19·pandemic, the future of the Premises has become even more uncertain. Real estate values are declining throughout the City of New York, and if will undoubtedly be difficult to sell an apartment of this magnitude should that become necessary without Chapter 11 oversight.

12; Contrary to published reports, Mr. Kwok does not have an ownership interest in the· Premises1 although he cuirently resides in the apartment. Thus, an important

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threshold goal of the Chapter 11 case is to obtain a resolution of the competing claims relating to the Premises· as between Bravo and .Pacific Alliance. Once· this issue is reso\_lved or settled, the matter. involving Pacific Alliance will be clarified and the Debtor ,Nill then be in a position to promulgate a plan of reorganization. Pending such a determination, Chapter 11 will help the Debtor preserve the status quo.

#### **Local Rule 10\_07-2 Disclosures**

13. Pursuant to Local Rule 1007-2(a)(3), .rto committees were formed prior to the filing of the Debtor's Chapter 11 Petition.

14. Pursuant.to Local Rule 1007-4(a)(4), a list of all of the Debtor's creditors is· attached hereto.

15.. Pursuant to Local Rule 1007-4{a)(5), The Sherry-Netherland, Inc., although listed as a general creditor, potentially retains rights- as a secured creditor for unpaid maintenance under state law.

16. Pursuant to Local Rule l007-4(a)(6). the Debtor's assets and liabilities-will be set forth in formal bankruptcy schedules to be filed concurrently or within fifteen (15.) days of the date hereof.

17. Pursuant to Local Rule 1007"4(a)(7), the membership interest in the Debtor is not publicly traded, and is held by Genever Holdings Corporation as listed in the schedule of eguity holders filed herewith.

18. Pursuant to Local Rule 1007-4( a)(8), none of the Debtor's assets are in the pos~ess~on or custody of any custodian, public officer, mortgagee, pledge, assignee of rents or secured cred,itor.

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I 9. Pursuant to Local Rule 1007-4(a)(9), the ·Premises together with the· auxiliary· units are· in concept leased from The Sherry-Netherland Hotel pursu~nt to various proprietary leases·.

20. Pursuant to Local Rule 1007-4(a)(10), the Debtor's books and. records are located-at its offices at 781 Fifth A venue, New York, NY 10022.

21. Pursuant to Local Rule I 007~4(a)(I 1 ), a list of all pending lawsuits is filed herewith.

22. Pursuant-to Local Rule 1007--4(a)(l2), Mr. Kwok serves as·the Manager of the Debtor pursuant to the terms of the Debtor's Operating Agreement without compensation. I likewise serve as the Debtor's representative for Chapter 11 without compensation.

> 23. Pursuant to Local Rule· 1007-4(b )( 1 )i the Debtor has no current employees.

24. Pursuant to Local Rule 1007-4(b)(2) and (3), the Debtor anticipates incurring disbursements in the next 30 days of approximately \$100,000-which is comprised mainly of maintenance charges and assessments, as per the attached budget.

Dated: New Yor1>,,New York October *{)..,* 2020

By: ' ,/

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#### UNTTED STATES BANKRUPTCY COURT SOUTHERN. DISTRICT OF NEW YORK

--------------------------------·--------------------·-----x

**---------------------------------------------------------·X**

Inre: Chapter 11

Genever Holdings .LLC, Case No.

Debtor:

### **COMPANY RESOLUTIONS**

**A** special meeting of the sole Member of Genever Holdings LLC {the "Company") having been held on October-'.., 2020, and upon motion duly made and carried, the following resolutions were unanimously adopted:

> **RESOLVED,** the Company is authorized to file a voluntary petition for relief under Chapter 11 of title 11 of the. United States Code (the "Bankruptcy Code''), in the United States Bankruptcy Court for the Southern District of New York; and it is further

> **RESOLVED,** Yanping Wang is appointed .as the Company's representative and is authorized to act on behalf of the Company to (a) execute .the Chapter 11 petition .and all other accompanying documents, and cause the same to be filed with the Bankruptcy Court; and (b) cause to be filed all schedules~ statem:ents; lists, motions, applications and. other papers or documents necessary or desirable to prosecute the Chapter 11 case; and it is further

> **'RESOLVED.,** that the Company is authorized to retain the law finn nf Goldberg· Weprin Finkel Go,ldstein LLP as counsel in the Chapter 11 case under a general retainer.

Dated: New York, New York October **\_k,** 2020

#### GENEVER HOLDINGS LLC

By: Genever Holdings Corporation

By:

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#### UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------· In re:

Chapter 11

Qenever 1-IQldings LLC, Case No.

Debtor.

**----------------------------------------------------x**

## **LIST OF LAWSUITS**

**------------x**

1. Pacific Alliance Asia Opportunity Fund L.P ., Plaintiff v. Kwok *Ho* Wan, a/k/a Kwok Ho, a/k/a Gwo Wen.Gui, a/k/a Guo Wengui, a/k/a Guo Wen-Gui, a/k/a Wan Gue Haoyun, a/k/a Miles Kwok, a/k/a Haoyun Guo, Genever Holdings LLC and Genever Holdings Corporation, Defendants Index No. 652077/2017 Supreme Cow-t of the State of New York County of New York 60 Centre Street, Part 61, Room 232 New York, NY I 0007 Hon. Barry .R. Ostrager

0 'Melveny & Myers LLP Attorneys for Plaintiff 7Times Sq New York, NY 10036-6524

2 .. Genevet Holdings LLC, Plaintiffv. The Sherry-Netherland, Inc., Defendant -Index No. 152838/2020 Supreme Court of the State of New York County of New York 60 Centre Street, Part 61, Room 232 New York, NY 100.07 Hon. Eileen Rakower

Lawall & Mitchell, LLC Attorneys for Plaintiff Aaron A. Mitchell, Esq. 162 East 64th Street New York, NY 10065

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Adam Leitman Bailey, P.C. Attorneys for Defendant One Battery Park Plaza, 18th Floor New York, NY 10004

3. The Sherry-Netherland, Inc., Petitioner (Landlord) v. Genever Holdings LLC, Respondent (Tenant) Index No. l 54853/2020 Civil Court.of the City of New York CounfY. of New York

Adam Leitman Bailey, P.C. Carolyn Z. Rualo, Esq. Attorneys for Petitioner-Landlord One Battecy Park Plaza, 1 8th Floor New York, NY 10004

4. The Sherry-Netherland, Inc., Petitioner (Landlord) v. Genever Holdings LLC, 781 Fifth Avenue, Apartment 180 I, New York, NY I 0022, Respondent (Tenant) Index No. 154854/2020 Civil Court of the City of New Y or.k Cotn1ty of New York

Adam Leitman Bailey,.P.C. Carolyn Z. Rualo, Esq. Attorneys for Petitioner-Landlord One Battery Park Plaza, 18th Floor New York, NY 10004

5; The Sherry-Netherland, Inc., Petit10ner-Landlord v. Genever Holdings· LLC. Respondent-Occupant, "John Doe" and/or "Jane Doe", Respondents~Under-Occupants Index No. l 55038/2020 Civil Comt of the City of New York County ofNew York

Adam Leitman Bajley, p;c. Carolyn Z. Rualo, Esq. -Attorneys for Petitioner-Landlord One Battery Park Plaza, 18th Floor New York, NY 10004

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Dated: New York,:!ew York October *.{J.,* 2020

GENEVER HOLDINGS LLC

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#### UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK.

·---------------------------------------------·------------x In.re:

Chapter 11

Genever Holdings LLCt Case No.

Debtor.

**-----------------------------------------------------x**

#### **LIST OF EQUITY HOLDERS**

1. Genever Holdings Corporation BVI Business Company P.O.Box3170 · Road Town, Tortoia, British Virgin-Islands

Dated-: New' Yor:~New York October *9-,* 2020

GENEVER HOLDINGS LLC

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#### UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

**----------------------------------------------------------x**

In re:

-- Chapter 11

Genever Holdings LLC, Case No.

Debtor.

**---------------------------------------------------------x**

#### **.BANKRUPTCY RULE 7007.1 CORPORATE OWNERSHIP STATEMENT**

Pursuant to Bankruptcy Rule 7007.1, Genever Holdings LLC- certifies that it is a

private non-governmental party, and.has no corporate parent, affiliates and/or subsidiaries which

are publicly held.

Dated: NewYor}New York October **t,..,** 2020

> GENEVER HOLDINGS LLC

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# **EXHIBIT 18**

#### 20-12411-jlg Doc 141 Filed 10/08/21 Entered 10/08/21 14:04:00 Main Document Pg 1 of 2 22-01073-dsj Doc 14-18 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 18 2 3Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 71 of 174

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re: Chapter 11

Genever Holdings LLC, Case No. 20-12411 (JLG)

Debtor.

--------------------------------------------------------x

## **ORDER GRANTING DEBTOR'S SECOND RENEWED MOTION TO APPROVE THE REVISED SETTLEMENT AGREEMENT**

Upon the Debtor's renewed motion (ECF No 131) (the "**Renewed Motion**") of Genever Holdings LLC, (the "**Debtor**") seeking approval of a certain settlement agreement between the Debtor, Pacific Alliance Asia Opportunity Fund L.P. ("**PAX**") and Bravo Luck Limited ( "**Bravo Luck**") (ECF No. 62); and upon the opposition to the Renewed Motion filed by the Office of the U.S. Trustee via a motion for the appointment of an Operating Chapter 11 Trustee (ECF No. 64) (the "**UST Opposition**"); and upon the supplemental responses filed by the Debtor, PAX and Bravo Luck relating to the UST Opposition (ECF Nos. 76, 81, 83, 95, 96, 97, 99, 104, 105 and 106); and a series of hearings having been held before the undersigned; and upon the record compiled at these hearings; and the Court having considered the UST Opposition; and upon the September 1, 2021, decision (the "September 1, 2021 Decision") in which the undersigned determined that the Restated Settlement meets the standards of reasonableness and is supported by the creditors and major stakeholders in the Chapter 11 case, but denied the Renewed Motion due to issues relating to certain aspects of the proposed retention of Melanie L. Cyganowski, Esq. and her firm, Otterbourg, P.C.; and, thereafter, the Settling Parties having agreed to the Second Amended and Revised Settlement Agreement between the Debtor, PAX and Bravo Luck (the "**Revised Settlement Agreement**") which addresses the concerns raised by the Court in its September 1, 2021 Decision as well as the objections of the U.S. Trustee, which no longer has any objections to the Revised

#### 20-12411-jlg Doc 141 Filed 10/08/21 Entered 10/08/21 14:04:00 Main Document Pg 2 of 2 22-01073-dsj Doc 14-18 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 18 3 3Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 72 of 174

Settlement Agreement and the terms of Melanie L. Cyganowski's employment as Sale Officer for the Debtor; and the Court having agreed to consider final approval of the Renewed Settlement by Notice of Presentment; and based upon the entirety of the record compiled at the various hearings; and good cause appearing therefor; it is hereby

ORDERED as follows:

1. The Renewed Settlement Motion is granted as set forth herein.

2. The Revised Settlement Agreement is approved in all respects and shall become effective immediately upon the entry of this Order.

3. The Debtor's proposed employment of Melanie L. Cyganowski as Sale Officer shall be approved by separate Order to be noticed and entered simultaneously herewith.

4. The UST Motion seeking the appointment of an Operating Trustee is adjourned *sine die*.

5. Stay relief is granted to allow PAX to prosecute, and the Debtor to defend, the state court action currently pending in the New York Supreme Court under Docket No. 652077/2017 (the "**State Court Action**"), with the stay to otherwise remain in place for all other purposes, including relating to enforcement or collection of any judgment entered against the Debtor in the State Court Action, pending further order of the Bankruptcy Court upon further notice to all Parties.

6. The Lift Stay Motion and Conversion Motion filed by PAX are withdrawn as mooted by the approval of the Revised Settlement Agreement.

Dated: New York, New York October 8, 2021

/s/ *James L. Garrity, Jr.*

Hon. James L. Garrity, Jr.

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# **EXHIBIT 19**

NYSCEF DOC. NO. 904 RECEIVED NYSCEF: 09/22/2021 22-01073-dsj Doc 14-19 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 19 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 74 of 174

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |----------|-------------------------------------------------------------------------------------------------------------------|-----------------|----------------------------| | | Justice | | | | | --------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | | | | | Plaintiff, | INDEX NO. | 652077/2017 | | | - v - | MOTION DATE | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | MOTION SEQ. NO. | 018 | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGS CORPORATION, | | DECISION + ORDER ON MOTION | | | | | |

Defendants. --------------------------------------------------------------------------------X

## HON. BARRY R. OSTRAGER

Before the Court is Motion 018 by PAX for a post-judgment turnover pursuant to CPLR 5255 of Kwok's shares in Genever Holdings Corporation ("Genever BVI") and other relief. In accordance with the transcript of proceedings of September 22, 2021, the motion is granted to the extent of directing Kwok to take the steps necessary to effect the turnover his shares in Genever BVI to PAX. This order is expressly subject to the approval of Justice Adrian Jack who issued a stay in the British Virgin Islands ("BVI") in the related BVI litigation. The Court declines to appoint a receiver at this time.

Accordingly, it is hereby,

ORDERED that Kwok Ho Wan take whatever steps are necessary in the British Virgin Islands to turnover all share certificates with respect to his 100% ownership interest in Genever Holdings Corporation ("Genever BVI"); and it is further

ORDERED that this decision and order is expressly contingent on the approval of Justice Jack in the related proceeding in the British Virgin Islands. Any actions affecting Genever

Holdings LLC, a wholly owned subsidiary of Genever BVI, are subject to the jurisdiction of Justice Garrity in the Bankruptcy proceeding in the Southern District of New York involving Genever Holdings LLC, in which PAX is participating.

A status conference is scheduled for November 16, 2021 at 10:00 am.

Dated: September 22, 2021

| CHECK ONE: | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | |-----------------------|----------------------------|--------|---|-----------------------|-----------| | | GRANTED | DENIED | X | GRANTED IN PART | OTHER | | APPLICATION: | SETTLE ORDER | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | INCLUDES TRANSFER/REASSIGN | | | FIDUCIARY APPOINTMENT | REFERENCE |

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# **EXHIBIT 20**

NYSCEF DOC. NO. 1078 RECEIVED NYSCEF: 01/07/2022 22-01073-dsj Doc 14-20 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 20 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 77 of 174

## **NOTICE: THE PURPOSE OF THIS PROCEEDING IS TO PUNISH YOU FOR CONTEMPT OF COURT. SUCH PUNISHMENT MAY CONSIST OF A FINE, IMPRISONMENT, OR BOTH ACCORDING TO LAW.**

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Defendants.

Index No. 652077/2017

Hon. Barry R. Ostrager

Part 61

Mot. Seq. No. \_\_

**NOTICE OF MOTION FOR ORDER OF CIVIL CONTEMPT AS TO DEFENDANT MILES KWOK FOR HIS FAILURE TO COMPLY WITH THE COURT'S SEPTEMBER 22, 2021 TURNOVER ORDER**

**PLEASE TAKE NOTICE** that upon the annexed January 7, 2022 Memorandum of Law in Support of Pacific Alliance Asia Opportunity Fund L.P.'s ("PAX") Motion for an Order of Civil Contempt as to Defendant Miles Kwok for his Failure to Comply with the Court's September 22, 2021 Turnover Order, and the Affirmation of Stuart Sarnoff, Esq., dated January 7, 2022, and the exhibits attached thereto, and the Affidavit of Andrew Willins, dated January 7, 2022, and the exhibits attached thereto, PAX will move the Court at the New York County Courthouse located at 60 Centre Street, Room 130, New York, NY 10007, on the 25th day of January, 2022, at 9:30 a.m., or as soon after that as counsel may be heard, for an order, under N.Y. Judiciary Law § 753 and N.Y. CPLR § 5104, (i) finding Defendant Miles Kwok in contempt of Court for disobeying the Court's September 22, 2021 Turnover Order; and (ii) granting such other and further relief as the Court deems just and proper.

**PLEASE TAKE FURTHER NOTICE** that, under CPLR 2214(b), answering papers, if

any, are required to be served upon the undersigned at least seven days before the return date of

this motion.

DATED: January 7, 2022 New York, New York Respectfully submitted,

O'MELVENY & MEYERS LLP

By: */s/ Stuart Sarnoff* Stuart Sarnoff (ssarnoff@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

## CAHILL GORDON & REINDEL LLP

By: */s/ Edward Moss* Edward Moss (emoss@cahill.com) Lauren Riddell (lriddell@cahill.com) 32 Old Slip New York, NY 10005 (212) 701-3838

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

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# **EXHIBIT 21**

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No. 652077/2017

Hon. Barry Ostrager

Motion Seq. No. 26

Defendants.

Part 61

**REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.'S MOTION FOR AN ORDER OF CIVIL CONTEMPT AS TO DEFENDANT MILES KWOK FOR HIS FAILURE TO COMPLY WITH THE COURT'S SEPTEMBER 22, 2021 TURNOVER ORDER**

**FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022

22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 2 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 80 of 174

## **TABLE OF CONTENTS FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 3 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 81 of 174

| | PRELIMINARY STATEMENT 1 | |------|---------------------------------------------------------------------------------------------------------------------| | | ARGUMENT 2 | | I. | The Turnover Order is an Unequivocal Mandate that Does Not Require Bankruptcy Court Approval—and Kwok Knows it 2 | | II. | There is No Impediment to Kwok Initiating Compliance with the Turnover Order. 4 | | III. | Kwok's Failure to Comply Prejudices PAX. 5 | | | CONCLUSION 6 |

## **TABLE OF AUTHORITIES FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 4 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 82 of 174

## **Page(s)**

| Cases | |-------| |-------|

| Cap. One, N.A. v. Waterfront Realty II LLC., 907 N.Y.S.2d 99, 2010 WL 334851, at *4 (Sup. Ct. 2010) 4 | |-----------------------------------------------------------------------------------------------------------| | In re Bray Enterprises, Inc., 38 B.R. 75, 78 (Bankr. D. Vt. 1984) 3 | | McCormick v. Axelrod, 59 N.Y.2d 574, 587 (1983) 6 | | Statutes | | New York Judiciary Law § 753 6 |

![](_page_82_Picture_0.jpeg)

## **PRELIMINARY STATEMENT**

In his attempt to avoid a second civil contempt sanction, Kwok has filed another misleading pleading with this Court.

First, Kwok's Opposition1 falsely argues that the Court conditioned its Turnover Order on PAX obtaining Bankruptcy Court pre-approval—even though, as Kwok knows, this Court did no such thing. In fact, the Court *expressly rejected that argument* both on the record at the September 22, 2021 hearing and in the written Turnover Order itself.

Kwok then takes that misrepresentation to the next level. He claims that even though the Turnover Order's only condition precedent was satisfied on December 6, 2021—when BVI Justice Jack modified his prior orders to enable the Genever BVI share transfer—he nevertheless cannot initiate the turnover process by issuing the Stop Notice to Bravo Luck until PAX similarly obtains Bankruptcy Court pre-approval. That is also wrong. Bankruptcy Court approval is not a condition precedent to Kwok issuing the Stop Notice. In fact, Kwok's compliance with the Turnover Order *does not implicate* the Bankruptcy Court at all. As this Court recognized,2 Genever BVI is not a party to the New York bankruptcy proceeding and is not encumbered by the automatic stay governing debtor Genever NY. Rather, Kwok has complete control over Genever BVI and is entirely free to issue notice to Bravo Luck (*i.e.*, Kwok's son) at any time; he has just *refused* to do so. Thus, with every passing day, Kwok willfully violates the Turnover Order by failing to "take whatever steps are necessary in the [BVI] to turn[]over all share certificates with respect to his 100% ownership" in Genever BVI.

1 This brief refers to PAX's January 7, 2022 opening brief [$Dkt. No. 1079$](http) as the "Motion" or "Mot." and Kwok's January 18, 2022 opposition brief [$Dkt. No. 1104$](http) as the "Opposition" or "Opp." Unless otherwise specified, (i) defined terms have the meaning given to them in the Motion, (ii) all emphasis is added, and (iii) all internal citations and quotations are omitted. 2 *See* [Dkt. No. 1086](http) (Sept. 22, 2021 Hr'g Tr. at [17:12–18\)](http).

#### **FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 6 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 84 of 174

Finally, Kwok argues that his disregard for the Court's lawful Turnover Order has not prejudiced PAX because there already are other court orders in place—the BVI freeze orders and the Bankruptcy Court automatic stay over Genever NY's assets—that are sufficient to protect PAX's interests. That is ironic; as this Court well knows, *court orders provide PAX no protection against Kwok.* One need only look to the current location of Kwok's "restrained" yacht, the Lady May—floating beyond the Court's jurisdiction off the coast of Italy despite incurring a \$500,000 daily fine—as Exhibit A for that proposition.

Kwok has repeatedly demonstrated little regard for this Court's authority. More than *six weeks* have elapsed since Justice Jack cleared the way for Kwok to begin to comply with the Turnover Order, but he has failed and refused to take even the first step. The Court should once again hold Kwok in civil contempt.

## **ARGUMENT**

## **I. The Turnover Order is an Unequivocal Mandate that Does Not Require Bankruptcy Court Approval—and Kwok Knows it.**

Kwok asserts that because the Turnover Order provides that "[a]ny actions affecting *Genever* [*NY*], a wholly owned subsidiary of *Genever BVI*, are subject to the jurisdiction of [Judge] Garrity in the Bankruptcy proceeding in the Southern District of New York involving *Genever* [*NY*],"3 PAX is required to obtain the Bankruptcy Court's pre-approval before Kwok is obligated to takes steps to effect turnover of his Genever BVI shares.4 This is false, and Kwok knows it; he and the Genever Defendants briefed and argued the same position in connection with PAX's turnover motion and *this Court rejected it*.

3 [Dkt. No. 904 at 1–2.](http) 4 [Opp. at 6–8.](http)

#### **FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 7 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 85 of 174

The Turnover Order—which Kwok did not appeal—was contingent *only* on Justice Jack

modifying his prior orders in the related BVI action, which Justice Jack did on December 6,

2021.5 Kwok knows full well that the Turnover Order's reference to the Bankruptcy Court

actually derives from the Court's consideration and *repudiation* of Kwok's argument that PAX

was seeking to circumvent the bankruptcy proceedings and the automatic stay.6 This is because

PAX sought turnover only of Kwok's shares of Genever BVI—a *non-debtor* third party to which

the Bankruptcy Code's automatic stay *does not apply*. 7 As the Court explained, Kwok's

turnover to PAX of his Genever BVI shares affects Genever BVI, *not Genever NY:* 8

It is undisputed that the Sherry Netherland apartment is owned by Genever [NY], which is a subsidiary of Genever BVI. Genever [NY] is involved in bankruptcy proceedings in the Southern District of New York …. And so any action which PAX may wish to take with respect to Genever [NY] requires approval of Judge Garrity in the New York bankruptcy proceedings involving Genever [NY], because Genever [NY] is in bankruptcy. *All this Court is doing today is directing … Genever BVI's registered agent to update Genever BVI's registered members to reflect that PAX, or its designee, is the legal owner of Mr. Kwok's shares in Genever [] BVI*. 9

Though one would not know it from Kwok's Opposition, his counsel has in fact

expressly acknowledged—in an October 8, 2021 letter to PAX—that the only hurdle to Kwok

initiating the turnover process was Justice Jack's since-modified freeze orders: "[i]n order to

comply with the Court's Turnover Order," "*Mr. Kwok will be acting in accordance with any*

*subsequent court order issued by Justice Jack* as it relates to any modification of the stay orders

5 *See* [Dkt. No. 1089.](http) Specifically, on December 6, 2021, Justice Jack modified his prior order to "[p]ermit [Kwok] to transfer the shares registered in his name in [Genever BVI] to [PAX] in compliance with the Turnover Order," and to "[p]ermit [Genever BVI] (and its Registered Agent) to update the Register of Members of [Genever BVI] to reflect the transfer by [Kwok] of the shares registered in his name to [PAX]."

6 *See* [Dkt. No. 874 at 4–6;](http) [Dkt. No. 896 at 4–5.](http) 7 [Dkt. No. 899 at 10](http) (citing *In re Bray Enterprises, Inc.*[, 38 B.R. 75, 78 $Bankr. D. Vt. 1984$\)](http)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_164_78).

8 *See* [Dkt. No. 904 at 1–2.](http) 9 [Dkt. No. 1086](http) (Sept. 22, 2021 Hr'g Tr. at [17:2–17\)](http).

#### **FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 8 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 86 of 174

or relating to the shares of Genever BVI."10 Tellingly, Kwok's counsel did not claim back in October that Bankruptcy Court pre-approval was also required—because he knew it was not. Making this argument now is just Kwok's latest antic to try to avoid contempt while continuing to flout the Turnover Order.

No matter how many times Kwok tries to suggest otherwise,11 this Court has already ruled—in the Turnover Order that Kwok did not appeal—that turnover of Kwok's Genever BVI shares to PAX does not require Bankruptcy Court pre-approval.12

## **II. There is No Impediment to Kwok Initiating Compliance with the Turnover Order.**

Next, Kwok builds on his false "bankruptcy pre-approval requirement" premise by injecting a new, equally flawed argument relating to Bravo Luck's issuance of the December 10, 2021 Stop Notice. Specifically, Kwok now suggests that he cannot even have Genever BVI (*i.e.,* himself) provide notice to Bravo Luck (*i.e,* his son) until PAX first obtains Bankruptcy Court approval.13 This is circular nonsense. As explained above, the Turnover Order included only *one* condition precedent, and that was fully satisfied in early December when Justice Jack modified his prior BVI orders to enable turnover.14

10 *See* [Dkt. No. 1081.](http) 11 Kwok's attempt to relitigate this issue after it was rejected and not appealed is not only improper, but futile. The Court's decision was correct in September 2021, and remains so today.

12 In the context of this motion, Kwok's observation that courts "generally defer" to the Bankruptcy Court concerning the applicability of the automatic stay is a non sequitur. The single case Kwok cites, *[Cap. One, N.A. v. Waterfront Realty II LLC.](http)&VR=3.0&RS=da3.0)*, addressed whether individual guarantors who filed for bankruptcy protection should have the automatic stay extend to their wholly owned property. [26 Misc.3d 1215$A$, 907 N.Y.S.2d 99, 2010 WL 334851, at \\*4 $Sup.](http)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_999_4) [Ct. 2010$.](http)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_999_4) That situation is inapposite here, as Genever BVI is the non-debtor parent company of Genever NY, not its wholly owned property.

13 *See* Opp. [at 8–9.](http) 14 *See supra* at 3.

#### **FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 9 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 87 of 174

As the sole owner and director of Genever BVI,15 Kwok unquestionably has the unfettered ability to send the Stop Notice—which he is legally obligated to do under the Turnover Order's express mandate that he "take whatever steps are necessary" in the BVI to effectuate turnover."16 Kwok's new suggestion that giving notice would somehow "circumvent the procedural process" "currently underway" in the BVI17 is baseless, as there is no ongoing BVI proceeding that in any way addresses turnover or inhibits Kwok from beginning to comply with the Turnover Order by issuing notice to Bravo Luck. Moreover, none of the requisite steps that Kwok must take to effect turnover are contingent in any way on either PAX or the Bankruptcy Court doing anything. Nevertheless, over six weeks have passed since Bravo Luck (*i.e.*, Kwok's son) issued a Stop Notice, and in the interim Kwok defiantly has not taken *any steps* towards compliance with that order.

Enough is enough. The Court should sanction Kwok's blatant disobedience and gamesmanship.18

## **III. Kwok's Failure to Comply Prejudices PAX.**

Finally, Kwok argues that PAX has not been prejudiced by his failure to comply with the Turnover Order because *judicial orders already exist in the related actions "to maintain the status quo.*"19

19 [Opp. at 9–10.](http)

15 [Dkt. No. 756 at 9.](http) 16 [Dkt. No. 904 at 1.](http) 17 [Opp. at 9.](http) 18 To the extent Kwok is suggesting that he hasn't disobeyed the Turnover Order because "it is for Genever BVI to provide the written notice required by the Stop Notice and not Mr. Kwok personally," [$Nader Aff. ¶ 4\(b$,](http) [Dkt. No. 1105\)](http), that argument doesn't pass the laugh test. By his own admission [$Dkt. No. 756 at 9$](http), Kwok is the only person authorized to instruct Genever BVI to issue the requisite notice.

#### **FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 10 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 88 of 174

The irony likely is not lost on the Court. As PAX has explained,20 Kwok's disobedience "deprive[s]" PAX of its right to possess property (the shares of Genever BVI) that "can be turned over in satisfaction of a money judgment"—and to which it is entitled."21 *[McCormick v.](http) Axelrod*[, 59 N.Y.2d 574, 587 $1983$.](http) Possession of the Genever BVI shares is especially critical to PAX in this case, given Kwok's demonstrated practice of secreting his assets beyond PAX's reach in blatant defiance of court orders. The Court need look no farther than to Kwok's fugitive, multimillion-dollar luxury yacht, the Lady May—which for over a year now has remained beyond this Court's jurisdictional reach in defiance of its October 15, 2021 Order—as proof positive that *valid court orders provide no deterrence to Kwok, and no protection to PAX*. 22 Guarding against this very risk by obtaining physical possession of the Genever BVI shares is what motivated PAX to move for turnover in the first place, and Kwok's refusal to take

the steps necessary to effect that share transfer prejudices PAX's rights.

## **CONCLUSION**

Kwok treats compliance with lawful orders of this Court as optional. That must stop. PAX has established all of the civil contempt elements set forth in [New York Judiciary Law §](http)&VR=3.0&RS=da3.0) [753.](http)&VR=3.0&RS=da3.0) Accordingly, PAX respectfully requests that the Court find Kwok in civil contempt of its September 22, 2021 Turnover Order and impose whatever sanction it believes is warranted to induce Kwok's immediate compliance.

20 [Mot. at 7–8.](http) 21 [Dkt. No. 1086](http) (Sept. 22, 2021 Hr'g Tr. at [16:13–15\)](http).

22 The Marine Traffic Yacht Tracker locates the Lady May off the northern coast of Italy as of January 24, 2022. *See* Jan. 24, 2022 Aff. of Stuart Sarnoff in Further Supp. of PAX's Mot. for an Order of Civil Contempt, Ex. 1.

**FILED: NEW YORK COUNTY CLERK 01/24/2022 08:58 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1116 RECEIVED NYSCEF: 01/24/2022 22-01073-dsj Doc 14-21 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 21 Pg 11 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 89 of 174

> Dated: January 24, 2022 Respectfully submitted, New York, New York

## O'MELVENY & MEYERS LLP

By: */s/ Stuart Sarnoff* Stuart Sarnoff (ssarnoff@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

![](_page_89_Picture_0.jpeg)

## **CERTIFICATION OF WORD COUNT**

PAX hereby certifies that this document complies with the word count provisions of

Commercial Division Rule 17. This memorandum of law was prepared using Microsoft Word,

and the total number of words in this memorandum of law, exclusive of the caption, title, and

signature block, is less than 4,200 words.

DATED: January 24, 2022 New York, New York Respectfully submitted, O'MELVENY & MEYERS LLP

By: */s/ Stuart Sarnoff* Stuart Sarnoff (ssarnoff@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

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# **EXHIBIT 22**

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

KWOK HO WAN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAOYUN, *a/k/a*

Index No. 652077/2017

Hon. Barry Ostrager

Part 61

Mot Seq. No. \_\_

Defendants.

GENEVER HOLDINGS CORPORATION, and

MILES KWOK, *a/k/a* HAOYUN GUO,

GENEVER HOLDINGS LLC,

## **MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.'S CPLR 5229 MOTION AND REQUEST FOR TRO**

**FILED: NEW YORK COUNTY CLERK 09/25/2020 05:43 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 576 RECEIVED NYSCEF: 09/25/2020

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## **TABLE OF CONTENTS**

## **Page**

| | | PRELIMINARY STATEMENT 1 | | | | |-----|----------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------|--|--|--| | | | ARGUMENT 2 | | | | | I. | The Court Should Grant PAX's Application Under CPLR 5229. 2 | | | | | | II. | The Court Should Preserve the Status Quo by Temporarily Enjoining Kwok from Dissipating His Assets Until the Hearing on PAX's 5229 Application. 4 | | | | | | | A. | PAX Will Suffer Irreparable Harm if Kwok is Not Restrained From Dissipating His Assets. 5 | | | | | | B. | PAX Is Likely to Succeed on the Merits of Its CPLR 5229 Application. 11 | | | | | | C. | The Balance of Hardships Favors PAX. 11 | | | | | | | CONCLUSION 12 | | | |

## **TABLE OF AUTHORITIES FILED: NEW YORK COUNTY CLERK 09/25/2020 05:43 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 576 RECEIVED NYSCEF: 09/25/2020 22-01073-dsj Doc 14-22 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 22 Pg 4 of 18 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 94 of 174

**Cases**

## **Pages**

| Ayro Comm'ns, Inc. v. Jaymer Comm'ns Corp., No. 38836/04, 2005 WL 351070 (N.Y. Sup. Ct. Feb. 9, 2005) 10 | |----------------------------------------------------------------------------------------------------------------------------------| | Coley v. Vannguard Urban Improvement Ass'n, Inc., 12-CV-5565 (PKC) (RER), 2016 WL 7217641 (E.D.N.Y. Dec. 13, 2016) 2 | | Demirovic v. Ortega, 296 F. Supp. 3d 477 (E.D.N.Y. 2017) 4 | | Gallegos v. Elite Model Mgmt. Corp., 1 Misc.3d 200 (N.Y. Sup. Ct. 2003) 2, 3, 4 | | Ibanez v. Pfeiffer, 76 Misc.2d 363 (N.Y. Civ. Ct. 1973) 3 | | Jacobowitz v. Jacobowitz, No. 16605/04, 2004 WL 2532297 (N.Y. Sup. Ct. Oct. 25, 2004) 10 | | Leser v. U.S. Bank Nat'l Ass'n, No. CV 2009–2362, 2013 WL 867153 (E.D.N.Y. 2013) 4 | | Loew v. Kolb, No. 03Civ.5064, 2003 WL 22077454 (S.D.N.Y. Sept. 8, 2003) 2 | | Morgenthau v. A.J. Travis Ltd., 184 Misc.2d 835 (N.Y. Sup. Ct. 2000) 11 | | Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 N.Y.3d 839 (2005) 5 | | Prudential Secs. Credit Corp. v. Teevee Toons, Inc., Index No. 603112/02, 2003 WL 346440 (N.Y. Sup. Ct. Feb. 7, 2003) 11, 12 | | Pudalov v. Pudalov, 6 Misc.3d 558 (N.Y. Sup. Ct. 2004) 11 | | Sequa Cap. Corp. v. Nave, 921 F. Supp. 1072 (S.D.N.Y. 1996) 2, 5 | | Weston Cap. Advisors, Inc. v. PT Bank Mutiara, TBK, No. 13 CIV. 6945 (PAC), 2017 WL 571511 (S.D.N.Y. Feb. 13, 2017) 4 |

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## **PRELIMINARY STATEMENT**1

PAX has prevailed on the merits of its breach-of-contract claim against Miles Kwok, and the only issue left for the Court to decide on that claim is the quantum of damages. There is no question that PAX imminently will have a very large judgment against Kwok. And this Court has discretion to enforce that judgment before it is entered under CPLR 5229, which was intended to address situations just like this one— where there is a time interval between the Court's finding of liability and its determination of damages. Indeed, the *only* requirement PAX must satisfy under CPLR 5229 is that a decision has been rendered in its favor. PAX already has met that requirement.

But here, relief under CPLR 5229 is all the more appropriate because, as PAX has previously detailed for the Court and as summarized below, Kwok has a long history of shielding assets and abusing the litigation process. This evidence demonstrates a real risk that Kwok will not comply with the judgment here. Thus, to protect PAX's opportunity to collect on the imminent damages award, there is a strong need to preserve the status quo by restraining Kwok from disposing of and/or secreting his assets in the period before a final judgment is entered. Accordingly, PAX respectfully requests that the Court (i) schedule a hearing on PAX's application under CPLR 5229 for the earliest possible date, and (ii) in the interim, issue a TRO under CPLR 6301 *et seq.* temporarily enjoining Kwok from dissipating his assets.

1 Unless otherwise noted, all emphasis is added and all citations and quotations are omitted and all defined terms have the same meaning as in Plaintiff's Memorandum of Law in Support of its Motion for Partial Summary Judgment (Dkt. No. 409). The Affirmation of Edward Moss in Support of Plaintiff's CPLR 5229 Motion and Request for TRO by Order to Show Cause is referred to herein as the "Moss Aff." The Affirmation of Jon Lewis in Support of Plaintiff's CPLR 5229 Motion and Request for TRO by Order to Show Cause is referred to herein as the "Lewis Aff."

## **ARGUMENT**

## **I. The Court Should Grant PAX's Application Under CPLR 5229.**

CPLR 5229 provides unambiguously that the Court has discretion to enforce a judgment

before it is entered upon the motion of a prevailing party:

In any court, before a judgment is entered, upon motion of the party in whose favor a verdict or decision has been rendered, the trial judge may order examination of the adverse party and order him restrained with the same effect as if a restraining notice had been served upon him after judgment.

New York law is clear that a favorable merits decision is *the sole prerequisite* to obtaining relief under CPLR 5229. *Gallegos v. Elite Model Mgmt. Corp.*, 1 Misc.3d 200, 202 (N.Y. Sup. Ct. 2003), *aff'd*, 807 N.Y.S.2d 44 (1st Dep't. 2005) ("The only statutory requirement is that the application for CPLR 5229 relief be made by the prevailing party."); *Loew v. Kolb*, No. 03Civ.5064, 2003 WL 22077454, at \*2 (S.D.N.Y. Sept. 8, 2003) ("Other than having received a favorable verdict or decision, there are no prerequisites to obtaining the relief provided in CPLR 5229."); *Sequa Cap. Corp. v. Nave*, 921 F. Supp. 1072, 1076 (S.D.N.Y. 1996) (same); *see also Coley v. Vannguard Urban Improvement Ass'n, Inc.*, 12-CV-5565 (PKC) (RER), 2016 WL 7217641, at \*6 (E.D.N.Y. Dec. 13, 2016) (granting relief under CPLR 5229 based on default judgment before a final damages award was entered and explaining that "the moving party need not make a particular showing of the danger of dissipation of assets"). It is also well-settled that the trial court has discretion both to determine whether to grant relief under CPLR 5229 and the scope of that relief. *Sequa Cap. Corp.*, 921 F. Supp. at 1076.

CPLR 5229 is designed to address the exact situation presented here—when there is a time interval between the issuance of a summary judgment decision on liability and a damages award. *See, e.g.*, *id.* (restraining defendant from transferring any property in which he has an interest, *following entry of summary judgment, but before a determination on damages*); *see*

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*also* CPLR 5229; Siegel, Practice Commentaries, C5229:1 ("Perhaps the scene of CPLR 5229's *highest utility is where there is some hiatus between the verdict or decision and the judgment* . . . for example, [where] the decision was one *granting summary judgment* for the plaintiff [] against the defendant [] *on liability*, but with the *damages issues then referred to a magistrate*. The CPLR 5229 restraint was granted pending the damages determination.").

To prevail on its motion under CPLR 5229, therefore, PAX is not actually required to demonstrate that Kwok intends to dissipate his assets or otherwise try to make himself judgmentproof. *See, e.g.*, *Gallegos*, 1 Misc.3d at 207 ("Neither the[] cases, the commentaries, nor the statute itself requires the prevailing party to submit evidence that assets are definitively being disposed of or diverted as a prerequisite to obtaining injunctive relief. Such evidence often may only surface on examination of the adverse party, ordered pursuant to CPLR 5229. A requirement of a showing that the adverse party has already disposed of assets runs counter to the purpose of CPLR 5229, which is a preventative measure designed to frustrate the adverse party from disposing of assets before such disposition takes place."). Nevertheless, as explained in its prior applications and as detailed in the next section, PAX has ample evidence that Kwok intends to do precisely that.

Thus, an order (i) restraining Kwok from disposing of any assets in the United States, and (ii) giving PAX discovery into those assets, is particularly necessary and appropriate at this time. *See* Weinstein, Korn, & Miller, New York Civil Practice, ¶ 5229.02; *Ibanez v. Pfeiffer*, 76 Misc.2d 363, 365 (N.Y. Civ. Ct. 1973) (ordering defendant to appear before the court at a set time for examination and restraining disposition of any of defendant's property prior to judgment pursuant to CPLR 5229); *Demirovic v. Ortega*, 296 F. Supp. 3d 477, 481 (E.D.N.Y. 2017); *Weston Cap. Advisors, Inc. v. PT Bank Mutiara, TBK*, No. 13 CIV. 6945 (PAC), 2017 WL

#### **FILED: NEW YORK COUNTY CLERK 09/25/2020 05:43 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 576 RECEIVED NYSCEF: 09/25/2020 22-01073-dsj Doc 14-22 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 22 Pg 8 of 18 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 98 of 174

571511, at \*4 (S.D.N.Y. Feb. 13, 2017), *aff'd*, 738 F. App'x 19 (2d Cir. 2018) (enjoining "the transfer, encumbrance of, or alteration in the rights of the Contemnor Assets" under 5229 because under New York law, "the Court may order the Contemnors to deliver those [ownership] certificates to this district, even if they are located outside New York"); *Leser v. U.S. Bank Nat'l Ass'n*, No. CV 2009–2362, 2013 WL 867153, \*2 (E.D.N.Y. 2013) (finding that the prevailing party was entitled to relevant documents and deposition pursuant to CPLR 5229).

## **II. The Court Should Preserve the Status Quo by Temporarily Enjoining Kwok from Dissipating His Assets Until the Hearing on PAX's 5229 Application.**

PAX's application under CPLR 5229 is, essentially, a request for preliminary relief—to allow PAX to begin to take discovery into Kwok's U.S. assets and to enjoin him from dissipating those assets during the short interval until a judgment is entered, when PAX will be afforded that relief permanently. Although PAX need not establish the typical preliminary-injunction requirements in order to prevail on its application under CPLR 5229, as discussed below, it can readily establish those elements because, among other things, there is strong evidence that Kwok will attempt to dissipate his assets or otherwise try to avoid the judgment in this case, which PAX anticipates will be nine figures (the debt continues to accrue 15% interest per annum and is currently approximately \$114 million, exclusive of enforcement costs).2 As a result, PAX respectfully requests that the Court at this juncture grant PAX, under CPLR 6301 *et seq.*, just a portion of the relief it seeks on its 5229 application—and enjoin Kwok from dissipating his assets—so as to preserve the status quo and PAX's ability to collect on the forthcoming judgment in this case.

2 *See* Lewis Aff. at ¶ 5.

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New York courts routinely grant such applications. *See, e.g.*, *Gallegos*, 1 Misc.3d at 207 (temporarily restraining defendants from transferring or selling any of their property before granting CPLR 5229 relief for prevailing plaintiff defendant's conduct included misleading statements and evasions); *Sequa Cap. Corp.*, 921 F. Supp. at 1074 (S.D.N.Y. 1996) (temporarily restraining defendant's assets on the day plaintiff moved for CPLR 5229 relief before later granting relief under CPLR 5229). And as discussed below, PAX can satisfy all three elements of a claim for preliminary relief under CPLR 6301 *et seq*. See *Nobu Next Door, LLC v. Fine Arts Housing, Inc.*, 4 N.Y.3d 839, 840 (2005) ("The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor.").

## **A. PAX Will Suffer Irreparable Harm if Kwok is Not Restrained From Dissipating His Assets.**

There is overwhelming evidence that Kwok will take steps to dissipate his assets or otherwise frustrate the judgment in this case, rendering it unenforceable and PAX's injury irreparable.

*First*, the record contains ample grounds to doubt that Kwok will voluntarily pay the judgment. To begin, Kwok has not repaid a penny of the nearly decade-old debt, and as the Court recognized in its summary judgment order, Kwok did not even "argue that either he or Shiny Times made any payments under the 2011 Loan Facility or the 2011 Personal Guarantee to satisfy the debt."3 The chronology demonstrates that Kwok's failure to pay was deliberate.

After Kwok failed to repay by the original repayment deadline, the parties attempted to settle the outstanding debt through a series of deeds of settlements, including a 2013 Deed of

3 Dkt. No. 549 ("Order") at 7.

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Settlement, which provided for Kwok to settle the debt by transferring to PAX three apartments in the Beijing Pangu Plaza.4 But Kwok negotiated the final extension to satisfy the conditions precedent to that settlement in February 2015—when it was clear that he could *never* satisfy those conditions because the Chinese government already had seized the three apartments.5

By early 2015, Kwok owed PAX approximately \$77 million, but rather than repaying his debt, he used most of that amount (over \$65 million) to purchase a luxury Residence at the Sherry-Netherland Hotel and shield it through a double LLC structure.6 The Sherry-Netherland Executive Vice President and Chief Operating Officer Michael Ullman testified that this structure was "unique" and unprecedented—one that he had "never seen before and [had] never seen since."7

To support his application to purchase the Residence, Kwok submitted false financial records to the Sherry-Netherland Board for a company called Beijing Zenith Holdings Company Limited ("Beijing Zenith"), which he then represented he owned and controlled.8 But when asked about Beijing Zenith at his deposition, Kwok testified that he did not "have any ownership interest in Beijing Zenith" when he submitted those financials, and that he had no idea why his attorneys submitted them to the Sherry-Netherland.9 When shown Kwok's testimony on this

9 *Id.*

4 *Id.* at 2.

5 Lewis Aff. at ¶ 5.

6 *See* Moss Aff. at ¶ 6*.* Despite applying to purchase the Residence and residing there, in an effort to avoid attachment, Kwok has denied even owning the Residence. At his October 3, 2018 deposition, he testified that the Residence actually was owned by a mysterious Chinese prisoner named Zhang Wei. *See id.* at ¶ 8.

7 *Id.*

8 *See id.* at ¶ 6.

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matter, Sherry-Netherland CEO Michael Horvitz testified that he believed the Sherry-Netherland had been "defrauded."10

After purchasing the residence, Kwok took further steps to shield it. Indeed, in June 2016, after PAX had sent him a demand letter, Kwok's representatives asked the Sherry-Netherland for permission to "undertake some restructuring in relation to the property so that the ultimate beneficial ownership will pass to his son," by transferring ownership of Genever New York to "a trust of which the son is a beneficiary."11

Kwok's conduct throughout this litigation has provided even more evidence that he will not repay, even in the face of a judgment. After PAX filed this lawsuit, Kwok tweeted "I neither have to nor should I repay this amount of boring money irrelevant to me for them."12 Kwok was then asked point-blank at his deposition whether he would pay a judgment if one were entered against him in this litigation, and after his lawyers instructed him not to answer, he refused to answer the question.13 The answer appears to be "no" based on Kwok's abuse of the litigation process. He has made countless misrepresentations to this Court, culminating in his deposition testimony that he never signed the 2011 Personal Guarantee or related contracts.14 But contrary to that false deposition testimony, Kwok previously repeatedly had affirmed those contracts to the Court as authentic—and even *filed his own copies* with the Court.15

13 *Id.*

10 *Id.*

11 *Id.* at ¶ 8

12 Lewis Aff. at ¶ 5.

14 *See* Moss Aff. at ¶ 8*.*

15 *See* Order at 2–3; *see also* Dkt. Nos. 11, 16–17.

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Kwok also attempted to avoid attachment of the Residence based on false testimony and representations that the Residence had been pledged to a third-party. For example, Kwok's employee Yvette Wang submitted an affidavit in which she swore to this Court that "the assets of Genever BVI, which by virtue of its ownership of Genever [New York] include the [Residence], were pledged to Roscalitar 2."16 At her deposition, however, she admitted that *she in fact knew absolutely nothing about pledges*, had "no idea" if the Residence or the Genever entities had been pledged, and had never spoken to Kwok about any pledges.17 To make matters worse, when confronted by the Sherry-Netherland about the unequivocal statement in Ms. Wang's affidavit that the Residence had been pledged to Roscalitar 2, Kwok's lawyers argued that the affidavit "*made no such representation*" that the Residence had been pledged.18

Kwok ultimately avoided attachment based at least in part on false testimony about the Residence. At the April 26, 2019 hearing on PAX's attachment motion, Ms. Wang testified that the Residence was not for sale.19 Although she testified that it had been taken off the market "[a]bout one month" prior to the hearing, the only evidence PAX has seen thus far suggests that the Residence was actually taken off the market *the very day of the hearing*. 20 On February 13, 2020, the Residence was once again listed for sale for \$63,500,000; less than one month later, Kwok dropped the price to \$55,000,000.21 As of September 21, 2020, the Residence remains on the market.22

17 *Id.*

- 18 *Id.* - 19 *See id.* - 20 *Id.* - 21 *See id.* - 22 *See id.*

16 Moss Aff. at ¶ 8*.*

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*Second*, there is strong evidence that, even if Kwok were willing to pay the judgment, he lacks the financial ability to do so. Although Kwok claims publicly to be a billionaire, recent evidence, including his own under-oath testimony, shows that claim may be exaggerated (or at least that his financial position has changed). As an initial matter, it has been widely reported that Kwok's assets across the world have been frozen.23 And in January 23, 2019, Kwok testified under oath at a deposition in a case in the Eastern District of Virginia that his net worth was *"negative,"* that he *didn't "have any more money,"* that he *does not "[i]n reality, under the law" "own any assets in the United States,"* that he has *no "income from any sources,"* and that he has *"not a penny left."*24

Moreover, the Sherry-Netherland Hotel, Inc. recently sued Defendant Genever Holdings LLC seeking to evict Kwok from the Residence for failure to pay hundreds of thousands of dollars in maintenance fees (which he had not paid since January 2020). And just about a month ago, Kwok was sanctioned by the Eighth Judicial District Court in Clark County, Nevada, for avoiding the opposing party's attempts to take discovery on a \$196,940.39 judgment he had obtained against Kwok.25 It is also worth noting that the *Wall Street Journal* reported on August 19, 2020, that the FBI and SEC were investigating whether a media company linked to Kwok had violated the securities laws in connection with a \$300 million private offering (and that the New York Attorney General's Office also was investigating the matter) and that Kwok had confirmed the probe in an online video.26 The *Journal* article also reported that the company's

23 *See* Lewis Aff. at ¶ 6.

24 *See* Moss Aff. at ¶ 7; *see also* Lewis Aff. at ¶ 6.

25 *See* Moss Aff. at ¶ 7.

26 *See* Lewis Aff. at ¶ 6*.*

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investors were pushing for refunds and lodging complaints and that several banks (JPMorgan, Wells Fargo, and Bank of America) had either frozen or closed accounts tied to the company.27

The evidence also suggests that Kwok has taken steps to shield other of his assets. For example, he appears to be recorded in a YouTube audio recording instructing his associates to quickly and quietly sell his boat and plane.28 Kwok originally disputed the audio's authenticity, and so PAX's counsel played the recording during his deposition to ask whether the voice was in fact his. Following his counsel's instructions, Kwok refused to answer whether it was his voice (the Court may recall from the video at the attachment hearing that Kwok stuck his fingers in his ears).29 Since April 2020, Kwok has listed his yacht, the Lady May, for sale with an asking price of \$27,900,000.30

In light of this evidence, it is necessary to restrain any assets in which Kwok has any interest to ensure that the judgment to be entered in PAX's favor can be satisfied. In the event this Court does not restrain Kwok from dissipating his assets in advance of the imminent judgment, PAX may well be unable to recover on its nearly decade-long quest and, thus, will suffer irreparable harm. *See, e.g.*, *Ayro Comm'ns, Inc. v. Jaymer Comm'ns Corp.*, No. 38836/04, 2005 WL 351070, at \*4 (N.Y. Sup. Ct. Feb. 9, 2005) ("Generally, [] a preliminary injunction is granted where injunctive relief will prevent the potential dissolution of an existing valuable asset or some comparable potential irreparable harm."); *Jacobowitz v. Jacobowitz*, No. 16605/04, 2004 WL 2532297, at \*5 (N.Y. Sup. Ct. Oct. 25, 2004) (explaining that "the purpose []of a preliminary injunction[]" is to "preserve the status quo" and prevent dissipation of property that

- 29 *See id.* - 30 *See id.*

27 *See id.*

28 *See* Moss Aff. at ¶ 8*.*

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could render a "judgment ineffectual"); *Prudential Secs. Credit Corp. v. Teevee Toons, Inc.*, Index No. 603112/02, 2003 WL 346440, at \*3 (N.Y. Sup. Ct. Feb. 7, 2003) ("[W]ithout an injunction against dissipation or transfer of the assets, plaintiff's rights therein are at risk of irreparable harm and any future judgment in its favor might be rendered futile.").31

## **B. PAX Is Likely to Succeed on the Merits of Its CPLR 5229 Application.**

PAX easily satisfies the preliminary-relief requirement of likelihood of success on the merits. As discussed above, (i) the Court has discretion to grant relief under CPLR 5229, (ii) the only requirement to prevail is a decision on the merits, and (iii) CPLR 5229 was designed for cases just like this one, where there is a time interval between when the Court grants summary judgment for the plaintiff on liability and it issues its judgment on damages.

## **C. The Balance of Hardships Favors PAX.**

Kwok has avoided paying his debt for nearly a decade, and—after chasing Kwok across the globe—PAX finally has a judicial order holding Kwok liable for his breach of contract. Kwok can no longer dispute that he owes a debt—and a significant one—to PAX. Kwok will be enjoined from dissipating assets as soon as a judgment is entered. There is no legitimate harm to him in beginning that process now, when judgment will likely be entered within weeks. On the other hand, PAX will suffer greatly if, after finally locating Kwok and litigating for more than three years, the judgment it obtains is uncollectible because Kwok took steps to shield his assets after receiving an adverse decision on liability. Indeed, as noted *supra* at note 31, Kwok's

31 Yesterday afternoon, PAX counsel Edward Moss telephoned Kwok counsel Jillian Searles to inquire whether this emergency motion could be obviated by Kwok's agreement not to dissipate any of his assets in the period before the damages award issued. As anticipated, Ms. Searles responded that Kwok would not agree to such an arrangement, further highlighting PAX's need for the relief requested herein. *See* Moss Aff. at ¶ 10.

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counsel stated that Kwok would not voluntarily commit to preserving his assets during this interim period.

Thus, the balance of hardships heavily favors PAX. *See, e.g.*, *Morgenthau v. A.J. Travis Ltd.*, 184 Misc.2d 835, 844 (N.Y. Sup. Ct. 2000) (granting preliminary injunction upon a finding that "[w]hatever hardship the defendants may have as a result of this [frozen funds] arrangement is far outweighed by the possibility that the assets in question may become unavailable in the absence of the requested relief"); *see also Pudalov v. Pudalov*, 6 Misc.3d 558, 562 (N.Y. Sup. Ct. 2004) (holding that "the equitable scales . . . tip in favor of the movant" where the notion that the nonmovant would pay a judgment absent a preliminary injunction was "speculative and a bit naïve" considering the animosity between the parties, and where the nonmovant's "extensive resources and/or the ability to access them" meant that it would "suffer no great hardship by a limited preliminary injunction"); *Prudential*, 2003 WL 346440, at \*3 (granting TRO and explaining that "[t]he equities tip decidedly in plaintiff's favor [and] [p]reservation of the assets . . . presents no undue hardship for the defendants, while it is *essential* to plaintiff's rights").

## **CONCLUSION**

For the reasons stated above, PAX respectfully requests that this Court issue an order, under CPLR 5229, (i) enjoining and restraining Defendant Kwok, with the same effect as if a restraining order had been served upon him after judgment, from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, or from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222; (ii) permitting PAX to issue restraining notices permitted by CPLR 5222 with respect to Defendant Kwok; (iii) permitting PAX to conduct the disclosure permitted by CPLR 5229, including disclosure as set forth in CPLR 5223 and 5224;

#### **FILED: NEW YORK COUNTY CLERK 09/25/2020 05:43 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 576 RECEIVED NYSCEF: 09/25/2020 22-01073-dsj Doc 14-22 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 22 Pg 17 of 18 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 107 of 174

and (iv) granting PAX such other, further, and different relief as this Court deems just and proper.

PAX also respectfully requests that, in the event the Court sets a briefing schedule and a hearing on PAX's request under CPLR 5229, the Court preserve the status quo by issuing an order, under CPLR 6301 *et seq.*, temporarily restraining Kwok, until that hearing, from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, or from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222.

DATED: September 25, 2020 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Stuart Sarnoff (ssarnoff@omm.com) Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

-and-

Robert W. Seiden (rseiden@seidenlegal.com) 1120 Avenue of the Americas New York, NY 10036 (212) 626-6708

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

![](_page_107_Picture_0.jpeg)

## **CERTIFICATION OF WORD COUNT**

PAX hereby certifies that this document complies with the word count provisions of Commercial Division Rule 17. This memorandum of law was prepared using Microsoft Word, and the total number of words in this memorandum of law, exclusive of the caption, title, and signature block, is less than 7,000 words.

DATED: September 25, 2020 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

22-01073-dsj Doc 14-23 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 23 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 109 of 174

# **EXHIBIT 23**

### **FILED: NEW YORK COUNTY CLERK 09/30/2020 04:44 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 591 RECEIVED NYSCEF: 09/30/2020 22-01073-dsj Doc 14-23 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 23 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 110 of 174

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | |----------|---------------------------------------------------------------------------------------------------------------------------------------|----------------------------|------------------|--| | | Justice | | | | | | ---------------------------------------------------------------------------------X PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | | | | | | Plaintiff, | INDEX NO. | 652077/2017 | | | | - v - | MOTION DATE | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | MOTION SEQ. NO. | 011 | | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGS CORPORATION, | DECISION + ORDER ON MOTION | | | | | Defendants. | | | |

---------------------------------------------------------------------------------X

## HON. BARRY R. OSTRAGER

On September 30, 2020, the Court held oral argument via Skype, with counsel for all parties. On consent, the Court entered a temporary restraining order restraining Mr. Kwok from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, or from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222 and in the ordinary course.

The Court will hear further argument, and if necessary, conduct an evidentiary hearing, on October 15, 2020 at 10:00 am via Microsoft Teams. Defendants must file their opposition to Motion 011 by October 13, 2020 at 4:00 pm. Plaintiff must file their reply, if any, by October 14, 2020 at 4:00 pm. If either party intends to call witnesses, they must exchange witness lists with one another and e-file a witness list with the Court no later than October 13, 2020.

Additionally, the Court will hear oral argument on Plaintiff's Motion 008 for damages and attorney's fees on October 15, 2020 at 10:00 am via Microsoft Teams. Defendants must file

#### **FILED: NEW YORK COUNTY CLERK 09/30/2020 04:44 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 591 RECEIVED NYSCEF: 09/30/2020 22-01073-dsj Doc 14-23 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 23 Pg 3 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 111 of 174

their opposition to Motion 011 by October 13, 2020 at 4:00 pm and Plaintiff must file their reply,

if any, by October 14, 2020 at 4:00 pm.

Any violation of the temporary restraining order issued today shall be considered

criminal contempt.

Dated: September 30, 2020

| CHECK ONE: | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | | | |-----------------------|----------------------------|--|--------|-----------------------|-----------------------|--|-----------| | | GRANTED | | DENIED | | GRANTED IN PART | | X OTHER | | APPLICATION: | SETTLE ORDER | | | | SUBMIT ORDER | | | | CHECK IF APPROPRIATE: | INCLUDES TRANSFER/REASSIGN | | | | FIDUCIARY APPOINTMENT | | REFERENCE |

22-01073-dsj Doc 14-24 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 24 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 112 of 174

# **EXHIBIT 24**

### **FILED: NEW YORK COUNTY CLERK 10/15/2020 02:52 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 630 RECEIVED NYSCEF: 10/15/2020 22-01073-dsj Doc 14-24 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 24 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 113 of 174

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | |--------------|------------------------------------------------------------------------------------------------------|----------------------------|------------------|--| | | Justice | | | | | | ---------------------------------------------------------------------------------X | | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | | Plaintiff, | MOTION DATE | | | | | - v - | | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a WAN GUE | MOTION SEQ. NO. | 011 | | | | HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, | | | | | CORPORATION, | GENEVER HOLDINGS LLC, and GENEVER HOLDINGS | DECISION + ORDER ON MOTION | | | | | Defendants. | | | | | | ---------------------------------------------------------------------------------X | | | |

## HON. BARRY R. OSTRAGER

On October 15, 2020, the Court held oral argument via Microsoft Teams, with counsel for all parties participating, on plaintiff's motion for a post-judgment restraining order pursuant to CPLR 5229 (motion 011). On September 15, 2020, the Court granted summary judgment in favor of plaintiff on liability, with damages and the issue of whether the corporate defendants are defendant Kwok's alter egos to be determined at a later date. NYSCEF Doc. 549.

Plaintiff's motion for a restraining order pursuant to CPLR 5229 is granted. Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020.

Specifically, Mr. Kwok and/or the registered owners of (1) the Residence at the Sherry-Netherland Hotel and (2) the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets.

![](_page_113_Picture_0.jpeg)

Plaintiff is entitled, under CPLR 5229, to take discovery into the above-identified assets as well as to seek discovery into any other assets that Mr. Kwok may own, whether directly or indirectly.

The next appearance will be a pre-trial conference on November 12, 2020 at 2:00 pm via Microsoft Teams.

| October 15, 2020 DATE | | | | \$SIG\$ BARRY R. OSTRAGER, J.S.C. | | | |--------------------------|---|------------------------------------|---|------------------------------------------|-----------|--| | CHECK ONE: | X | CASE DISPOSED GRANTED DENIED | X | NON-FINAL DISPOSITION GRANTED IN PART | OTHER | | | APPLICATION: | | SETTLE ORDER | | SUBMIT ORDER | | | | CHECK IF APPROPRIATE: | | INCLUDES TRANSFER/REASSIGN | | FIDUCIARY APPOINTMENT | REFERENCE | |

22-01073-dsj Doc 14-25 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 25 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 115 of 174

# **EXHIBIT 25**

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 69 of 134 22-01073-dsj Doc 14-25 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 25 Pg 2 of 3 Case 22-50073 Doc 432-3 05/24/22 05/24/22 23:04:58 116 of 174

![](_page_115_Figure_1.jpeg)

![](_page_115_Figure_2.jpeg)

![](_page_116_Figure_0.jpeg)

![](_page_116_Figure_1.jpeg)

![](_page_116_Figure_2.jpeg)

22-01073-dsj Doc 14-26 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 26 Pg 1 of 4 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 118 of 174

# **EXHIBIT 26**

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |----------|------------------------------------------------------------------------------------|--------------------------------|----------------------------| | | | Justice | | | | ---------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | Plaintiff, | | | | | - v - | MOTION DATE MOTION SEQ. NO. | 012 | | KWOK | HO WAN, a/k/a KWOK HO, et al., | | DECISION + ORDER ON MOTION | | | Defendants. | | | | | ---------------------------------------------------------------------------------X | | |

## HON. BARRY R. OSTRAGER

Before the Court is Motion 012 by Plaintiff Pacific Alliance Asia Opportunity Fund L.P.

("PAX") to hold Defendant Kwok Ho Wan ("Kwok") in contempt. This Court previously issued

three orders restraining Kwok's interest in the yacht called the "Lady May." On September 30,

2020, this Court entered a Temporary Restraining Order (the "TRO") preventing Kwok from,

among other things, "interference with any property in which he has an interest." NYSCEF Doc.

No. 591. In issuing the TRO, the Court noted that "[a]ny violation . . . shall be considered

criminal contempt." *Id.* On October 15, 2020, the Court issued the Order, which granted PAX's

motion under CPLR 5229 and expressly restrained the Lady May:

Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020. Specifically, Mr. Kwok and/or the registered owners of (1) the Residence at the Sherry-Netherland Hotel and (2) the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets.

NYSCEF Doc. No. 630. Counsel for Kwok specifically asked the Court whether Kwok could move the yacht from the jurisdiction for licensing purposes. The Court denied this request at the time and directed counsel to make a motion if necessary.

Plaintiff brings this motion because, despite these orders, the Lady May has been moved outside of the United States.

The Court has reviewed the extensive submissions of the parties in connection with PAX's motion to hold Kwok in contempt. Passing the issue of whether any of Mr. Kwok's attorneys have violated the Code of Professional Conduct, it is clear that there has been an intolerable amount of gamesmanship, dissembling. and deceit in proceedings before this Court relating to the whereabouts and ownership of the yacht "Lady May."

The defendant claims that the yacht was removed from the jurisdiction of this Court for "ordinary course" "winter maintenance" notwithstanding restraints imposed on the movement of the yacht by the Court. Rather than catalogue the many "shell games" defendant Kwok has engaged in with the assistance of counsel who should know better, the Court grants the motion for contempt to the following extent: For every day that the yacht is outside the jurisdiction of this Court after May 15, 2021, defendant Kwok will be fined \$500,000. The other restraints relating to the ownership and control of the yacht remain in place.

NYSCEF DOC. NO. 728 RECEIVED NYSCEF: 03/16/2021 22-01073-dsj Doc 14-26 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 26 Pg 4 of 4 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 121 of 174

A status conference remains scheduled for May 4, 2021 at 10:00 am.

Dated: March 16, 2021

| CHECK ONE: | | CASE DISPOSED | | | X | NON-FINAL DISPOSITION | | |-----------------------|---|----------------------------|--|--------|-----------------------|-----------------------|-------| | | X | GRANTED | | DENIED | | GRANTED IN PART | OTHER | | APPLICATION: | | SETTLE ORDER | | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | | INCLUDES TRANSFER/REASSIGN | | | FIDUCIARY APPOINTMENT | REFERENCE | |

22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 1 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 122 of 174

# **EXHIBIT 27**

## **FILED: NEW YORK COUNTY CLERK 03/23/2021 12:04 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 731 RECEIVED NYSCEF: 03/23/2021 **FILED: APPELLATE DIVISION - 1ST DEPT 03/25/2021 03:47 PM** 2021-01010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2021 22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 2 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 123 of 174

## SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No. 652077/2017

**NOTICE OF APPEAL**

Hon. Barry Ostrager

- against -

KWOK HO WAN, et al.,

Defendants.

**PLEASE TAKE NOTICE**, that Defendant Kwok Ho Wan hereby appeals to the Appellate Division, First Judicial Department, from the Decision and Order of the Supreme Court of the State of New York, County of New York, dated March 16, 2021, and entered in the office of the New York County Clerk on March 17, 2021 (NYSCEF Doc. No. 728), and from each and every part thereof.

Dated: New York, New York Respectfully submitted, March 23, 2021

BAKER & HOSTETLER LLP

By: *\_/s/ John Siegal\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* John Siegal Melissa Carvalho 45 Rockefeller Plaza New York, New York 10111 212-589-1400 jsiegal@bakerlaw.com mcarvalho@bakerlaw.com

*Attorneys for Defendant Kwok Ho Wan*

To: Clerk of the County of New York (via NYSCEF) All counsel of Record (via NYSCEF)

**FILED: NEW YORK COUNTY CLERK 03/23/2021 12:04 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 731 RECEIVED NYSCEF: 03/23/2021 22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 3 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 124 of 174

# **~rtmt <ttnurt nf tltt ,S,tntt nf Ntw lnrk Apptllntt iliuisinn: First luhicinl iltpnrtm.ent**

Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil

| | ( ,1,c· I itk \c·t !,11th the· t 1tk ,Ii the e,1,,· ,1, 11 ,ll'l'L",11' <'ll the· ,11111111\)Jh n,1t1e·c· ,,j l'L'llllllll ,,, ,,1dc·1 t\l sli.111 L.ILJ,c' h; \\l11,h the· lll.Jlkl \\,J, ,11 1, t, he c\1111111\.'llec·d ,11 ,1' .Jlllc'llckd | | For Court of Original Instance | |--------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------| | Pacific Alliance Asia Opportunity Fund LP., | | | | | - against - | | | Date Notice of Appeal Filed | | Kwok Ho Wan, et al. | | | For Appellate Division | | | | 111111~1,,,, | | | Civil Action 0 CPLR article 75 Arbitration | 0 CPLR article 78 Proceeding 0 Special Proceeding Other D Habeas Corpus Proceeding | Appeal 0 Original Proceedings 0 CPLR Article 78 0 Eminent Domain 0 Labor Law 220 or 220-b D Public Officers Law § 36 0 Real Property Tax Law§ 1278 | 0 Transferred Proceeding 0 CPLR Article 78 0 Executive Law § 298 D CPLR 5704 Review | | | :\aturc of Suit: ( iiL'L'k up IP thrc·,· ()fthc· IPll,1\\ t11g L',tlL'gntic, 1\hiLh h.·,t l | | c.'lkll th,' 11,tlllrL' Pl th'-· L".t,c· | | • Administrative Review | Business Relationships | Commercial | Contracts | | D Declaratory Judgment | • Domestic Relations | • Election Law | • Estate Matters | | • Family Court | • Mortgage Foreclosure | • Miscellaneous | D Prisoner Discipline & Parole | | • Real Property ( other than foreclosure) | • Statutory | • Taxation | • Torts |

Pg 4 of 11 174

| | | and the count them the county of the county of the count | | | |--|--------|----------------------------------------------------------|--------------------------|--| | | JYSCEF | | 10 200 DOC. DOC. DOC. | |

| Case 22-50073 22-01073-dsj | Doc 432-3 Doc 14-27 | Filed 05/24/22 Filed 04/13/22 | Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | Exhibit 27 Page 125 of | | |-------------------------------|------------------------|----------------------------------|--------------------------------------------------------|-----------------------------|--| | NYSCEF DOC. NO. 731 | | | | RECEIVED NYSCEF: 03/23/2021 | | | | | | | | |

| Paper Appealed From (Check one only): | Appeal | | | |----------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | | | If an appeal has been taken from more than one order or judgment by the filing of this notice of appea1, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. | | D Amended Decree D Amended Judgement D Amended Order Iii Decision | D Determination 0 Finding D Interlocutory Decree D Interlocutory Judgment | Iii Order D Order & Judgment D Partial Decree D Resettled Decree | D Resettled Order 0 Ruling • Other (specify): | | • Decree | • Judgment | • Resettled Judgment | | | Supreme Court Court: | | New York County: | | | Dated: 03/16/2021 | | Entered: March 17, 2021 | | | Judge (name in full): Hon. Barry R. Ostrager | | Index No.: 65201112011 | | | • Interlocutory Iii Final D Post-Final Stage: | | D Yes Iii No Trial: | If Yes: D Jury D Non-Jury | | | Prior Unperfected Appeal and Related Case Information | | | | | Index No. 150823/2021. Dismissed without prejudice. | | GTV Media Group v. Pacific Asia Alliance Fund, LP., Supreme Court, New York County (Ostrager, J.), | | | Original Proceeding | | Date Filed: | | Commenced by: | D Order to Show Cause • Notice of Petition D Writ of Habeas Corpus Statute authorizing commencement of proceeding in the Appellate Division: | | | | | Proceeding Transfer-red Pursuant to CPLR 7804(g) | | | | Choose Court Court: | | county: | Choose Countv | | Judge (name in full): | | Order of Transfer Date: | | | | CPLR 5704 Review of Ex Parte Order: | | | | | | | | | Choose Court Court: Judge (name in full): | | County: Dated: | Choose Countv | | | Description of Appeal, Proceeding or Application and Statement of Issues | | |

New York County, dated March 16, 2021, granting Plaintiffs motion for contempt against Defendant Kwok Ho Wan.

**FILED: NEW YORK COUNTY CLERK 03/23/2021 12:04 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 731 RECEIVED NYSCEF: 03/23/2021 22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 5 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 126 of 174

Without limiting the arguments that may be presented on appeal, Defendant-Appellant Kwok Ho Wan states that the Supreme Court's Decision and Order granting Plaintiff-Respondent's motion for contempt against Defendant-Appellant is in error and should be reversed. The Supreme Court's decision and order relates specifically to an asset (a yacht) which is not owned by Defendant-Appellant, but is owned by a third-party, HK International, and imposes fines against Defendant-Appellant relating to the movement and location of HK lnternational's asset (the yacht). The Supreme Court's decision and order also fails to satisfy either the procedural or substantive requirements for an adjudication of contempt.

## Party Information

| No. | Party Name | Original Status | Appellate Division Status | |-----|----------------------------------------------|-----------------|---------------------------| | 1 | Pacific Alliance Asia Opportunity Fund, L.P. | Plaintiff | Respondent | | 2 | Kwok Ho Wan | Defendant | Appellant | | 3 | Genever Holdings LLC | Defendant | None | | 4 | Genever Holdings Corporation | Defendant | None | | 5 | | | | | 6 | | | | | 7 | | | | | 8 | | | | | 9 | | | | | 10 | | | | | 11 | | | | | 12 | | | | | 13 | | | | | 14 | | | | | 15 | | | | | 16 | | | | | 17 | | | | | 18 | | | | | 19 | | | | | 20 | | | |

Pg 6 of 11 174

## Attorney ln'ormat1on

Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or himself, the box marked "Pro Se" must be checked and the appropriate information for that litigant must be supplied in the spaces provided.

| | Attorney/Firm Name: Edward Moss, O'Melveny & Myers LLP | | |------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------|--| | Address: 7 Times Square | | | | City: New York | I State: New York I Zip: 10036 I Telephone No: 212-326-2000 | | | E-mail Address: emoss@omm.com | | | | Attorney Type: | • Prose • Pro Hae Vice 0 Assigned 0 Government Retained | | | | Party or Parties Represented (set forth party number(s) from table above): 1 | | | | Attorney/Firm Name: Stuart Sarnoff, O'Melveny & Myers LLP | | | Address: 7 Times Square | | | | City: New York | I State: New York I Zip: 10036 I Telephone No: 212-326-2000 | | | E-mail Address: ssamoff@omm.com | | | | Attorney Type: | • Assigned • Government • Pro Hae Vice • Pro Se Retained | | | | Party or Parties Represented (set forth party number(s) from table above):1 | | | Attorney/Firm Name: RobertW. Seiden | | | | Address:469 Seventh Avenue, 5th Floor | | | | City: New York | I Telephone No: 212-523-0686 I State: New York I Zip: 10018 | | | E-mail Address: rseiden@seidenlawgroup.com | | | | Attorney Type: | • Assigned • Government • Pro Hae Vice • Prose Retained | | | | Party or Parties Represented (set forth party number(s) from table above):1 | | | | | | | | | | | | Attorney/Firm Name: John Siegal, Baker & Hostetler LLP | | | Address:45 Rockefeller Plaza City: New York | | | | E-mail Address:jsiegal@baker1aw.com | I State: New York I Zip: 10111 I Telephone No: 212-589-1400 | | | Attorney Type: | D Government Retained | | | | • Assigned • Pro Se • Pro Hae Vice Party or Parties Represented (set forth party numberls) from table above):• ;}_ | | | | | | | Address: 162 E. 64th Street | Attorney/Firm Name: Aaron Mitchell, Lawall & Mitchell, LLC | | | City: New York | | | | E-mail Address: aaron@lmesq.com | I State: New York I Zip: 10065 I Telephone No: 973-285-3280 | | | Attorney Type: | Retained | | | | • Government • Assigned • Pro Hae Vice 0 Pro Se | | | | Party or Parties Represented (set forth party number(s) from table above): O 3 | | | | Attorney/Firm Name: Aaron Mitchell, Lawall & Mitchell, LLC | | | Address: 162 E. 64th Street | | | | City: New York E-mail Address: | I State: New York I Zip: 10065 I Telephone No: 973-285-3280 aaron@lmesq.com • Pro Hae Vice • Assigned • Government | |

## SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

**FILED: NEW YORK COUNTY CLERK 03/23/2021 12:04 PM**

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

KWOK HO WAN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAOYUN, *a/k/a* MILES KWOK, *a/k/a* HAOYUN GUO, GENEVER HOLDINGS LLC, *and* GENEVER HOLDINGS CORPORATION, NYSCEF DOC. NO. 731RECEIVED NYSCEF: 03/23/20216 of 10

Defendants.

Index No. 652077/2017

Hon. Barry R. Ostrager

**NOTICE OF ENTRY**

**PLEASE TAKE NOTICE** that the attached is a copy of the Decision and Order of

**FILED: NEW YORK COUNTY CLERK 03/17/2021 04:37 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 730 RECEIVED NYSCEF: 03/17/2021

22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 7 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 128 of 174

Justice Barry R. Ostrager entered in the Clerk's office of the Supreme Court of New York

County on March 17, 2021.

DATED: March 17, 2021 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP

By: */s/ Stuart Sarnoff ^* Stuart Sarnoff (ssarnoff@omm.com) Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

-and-

Robert W. Seiden (rseiden@seidenlegal.com) 1120 Avenue of the Americas New York, NY 10036

(212) 626-6708 *Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

To: John Siegal (jsiegal@bakerlaw.com) Melissa Carvalho (mcarvalho@bakerlaw.com) BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, NY 10001 (212) 589-4200 NYSCEF DOC. NO. 731RECEIVED NYSCEF: 03/23/20217 of 10

*Attorneys for Defendant Miles Kwok*

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | | | |------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------|----------------------------|--|--|--| | | | Justice | | | | | | | ---------------------------------------------------------------------------------X PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | | | | Plaintiff, - v - | MOTION DATE MOTION SEQ. NO. | 012 | | | | | | KWOK HO WAN, a/k/a KWOK HO, et al., | | DECISION + ORDER ON MOTION | | | | | | Defendants. | | | | | | | | ---------------------------------------------------------------------------------X HON. BARRY R. OSTRAGER | | | | | | | | Before the Court is Motion 012 by Plaintiff Pacific Alliance Asia Opportunity Fund L.P. | | | | | | | | | | | | | | | | ("PAX") to hold Defendant Kwok Ho Wan ("Kwok") in contempt. This Court previously issued | | | | | | | | three orders restraining Kwok's interest in the yacht called the "Lady May." On September 30, | | | | | | | 2020, this Court entered a Temporary Restraining Order (the "TRO") preventing Kwok from, | | | | | | | | | among other things, "interference with any property in which he has an interest." NYSCEF Doc. | | | | | | | | No. 591. In issuing the TRO, the Court noted that "[a]ny violation shall be considered | | | | | | | | criminal contempt." Id. On October 15, 2020, the Court issued the Order, which granted PAX's | | | | | | | | motion under CPLR 5229 and expressly restrained the Lady May: | | | | | | | | Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020. Specifically, Mr. Kwok and/or the registered owners of (1) the Residence at the Sherry Netherland Hotel and (2) the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets. | | | | | | | | | | | | | | | | | | | | | |

## HON. BARRY R. OSTRAGER

#### **FILED: NEW YORK COUNTY CLERK 03/17/2021 09:09 AM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 728 RECEIVED NYSCEF: 03/16/2021 **04:37 PM** 22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 10 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 131 of 174

Plaintiff brings this motion because, despite these orders, the Lady May has been moved outside of the United States.

#### **FILED: NEW YORK COUNTY CLERK 03/17/2021 09:09 AM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 728 RECEIVED NYSCEF: 03/16/2021 **04:37 PM** 22-01073-dsj Doc 14-27 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 27 Pg 11 of 11 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 132 of 174

| FILED: NEW YORK COUNTY CLERK 03/17/2021 09:09 AM FILED: NEW YORK COUNTY CLERK 03/23/2021 12:04 PM Case 22-50073 22-01073-dsj NYSCEF DOC. NO. 728 NYSCEF DOC. NO. 731 730 | Doc 432-3 Doc 14-27 | Filed 05/24/22 Filed 04/13/22 | 04:37 PM Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | INDEX NO. 652077/2017 INDEX NO. 652077/2017 Exhibit 27 Page 132 of RECEIVED NYSCEF: 03/16/2021 RECEIVED NYSCEF: 03/23/2021 | 03/17/2021 | |--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------|----------------------------------|--------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------|------------| | | | Pg 11 of 11 174 | | | | | | | | | | | | | | | A status conference remains scheduled for May 4, 2021 at 10:00 am. | | | | Dated: March 16, 2021 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | CHECK ONE: | CASE DISPOSED X GRANTED | DENIED | X NON-FINAL DISPOSITION GRANTED IN PART | OTHER | | | APPLICATION: | SETTLE ORDER | • | SUBMIT ORDER | • | | | CHECK IF APPROPRIATE: | INCLUDES TRANSFER/REASSIGN | | FIDUCIARY APPOINTMENT | • REFERENCE | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3 | | | | | | | | | | | | | | 10 of 10 3 of 3 5 5 | | | |

22-01073-dsj Doc 14-28 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 28 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 133 of 174

# **EXHIBIT 28**

Supreme Court of the State of New York **FILED: APPELLATE DIVISION - 1ST DEPT 11/04/2021 10:22 AM** 2021-01010 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/04/2021 22-01073-dsj Doc 14-28 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 28 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 134 of 174

## Appellate Division, First Judicial Department

Acosta, P.J., Renwick, Kennedy, Mendez, JJ.

14555 PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., Plaintiff-Respondent,

Index No. 652077/17 Case No. 2021-01010

-against-

KWOK HO WAN, also known as KWOK HO, etc., Defendant-Appellant,

GENEVER HOLDINGS LLC, et al., Defendants.

Ganfer Shore Leeds & Zauderer LLP, New York (Ira Brad Matetsky of counsel), for appellant.

O'Melveny & Myers LLP, New York (Anton Metlitsky of counsel), for respondent.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered March 17, 2021, which granted the motion of plaintiff Pacific Alliance Asia Opportunity Fund L.P. to hold defendant Kwok Ho Wan in contempt of court, and imposed a fine of \$500,000 for every day after May 15, 2021 in which a \$27 million yacht remains outside the court's jurisdiction in violation of prior orders, unanimously affirmed, with costs.

The motion court acted within its discretion in holding defendant in civil contempt, as plaintiff established by clear and convincing evidence that defendant violated a lawful, clear mandate of the court, of which he had knowledge, and that such violation resulted in prejudice to plaintiff's rights (*see El-Dehdan v El-Dehdan*, 26 NY3d 19, 29 [2015]; Judiciary Law § 753).

### 22-01073-dsj Doc 14-28 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 28 Pg 3 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 135 of 174

Contrary to defendant's argument, the court did not commit a procedural defect under Judiciary Law § 770 because it did not issue a final order of contempt. Further, the evidence shows that the daily fine of \$500,000 was intended to strongly encourage defendant to purge himself of the contempt, which, despite being permitted two months to accomplish, he has shown no interest in doing (*see e.g. Ruesch v Ruesch*, 106 AD3d 976, 977 [2d Dept 2013]). The motion court is instructed to proceed with an evidentiary hearing to resolve a dispute as to ownership and control of the yacht, and to assess appropriate penalties.

## THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 4, 2021

22-01073-dsj Doc 14-29 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 29 Pg 1 of 2 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 136 of 174

# **EXHIBIT 29**

| | Case 22-50073 22-01073-dsj | Doc 432-3 Doc 14-29 | Filed 05/24/22 Filed 04/13/22 | | Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | Exhibit 29 Page 137 of | | |--------------------|-------------------------------|----------------------------------------------------------|----------------------------------|--|--------------------------------------------------------|-----------------------------|------------| | | | FILED: APPELLATE DIVISION - 1ST DEPT 01/20/2022 09:38 AM | Pg 2 of 2 174 | | | | 2021-01010 | | NYSCEF DOC. NO. 22 | | Supreme Court of the State of New York | | | | RECEIVED NYSCEF: 01/20/2022 | |

## Appellate Division, First Judicial Department

| PRESENT: Hon. Rolando T. Acosta, Dianne T. Renwick Tanya R. Kennedy | Presiding Justice, | | | |---------------------------------------------------------------------------------|--------------------|------------|--| | Manuel J. Mendez, | Justices. | | | | Pacific Alliance Asia Opportunity Fund, L.P., | Motion No. | 2021-04127 | | | Plaintiff-Respondent, | Index No. | 652077/17 | | | | Case No. | 2021-01010 | | | -against | | | | | Kwok Ho Wan, also known as Kwok Ho, etc., Defendant-Appellant, | | | | | Genever Holdings LLC, et al., | | | |

Defendants.

Defendant-appellant having moved for leave to appeal to the Court of Appeals from the decision and order of this Court, entered on November 04, 2021 (Appeal No. 14555),

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is denied.

ENTERED: January 20, 2022

22-01073-dsj Doc 14-30 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 30 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 138 of 174

# **EXHIBIT 30**

### **FILED: NEW YORK COUNTY CLERK 01/18/2022 08:26 AM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1098 RECEIVED NYSCEF: 01/14/2022 22-01073-dsj Doc 14-30 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 30 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 139 of 174

## **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | |----------|------------------------------------------------------------------------------------|-----------------|--------------------|--| | | Justice | | | | | | ---------------------------------------------------------------------------------X | | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND | | | | | L.P., | | INDEX NO. | 652077/2017 | | | | Plaintiff, | MOTION DATE | | | | | - v - | | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN | MOTION SEQ. NO. | 019 | | | | GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | | | | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a | THIRD | INTERIM DECISION + | | | | HAOYUN GUO, GENEVER: HOLDINGS LLC, and | ORDER ON MOTION | | | | | GENEVER HOLDINGS CORPORATION, | | | | | | Defendants. | | | | | | ---------------------------------------------------------------------------------X | | | |

## HON. BARRY R. OSTRAGER

By Interim Decision & Order dated July 21, 2021 (NYSCEF Doc. No. 873), the Court determined plaintiff's motion to hold defendant Kwok Ho Wan in civil contempt and the crossmotion by defendant for a stay pending appeal to the extent of holding the motion in abeyance pending a decision by the Appellate Division, First Department, on an appeal calendared for the September Term. The Appellate Division determined the appeal by Decision and Order dated November 4, 2021 (NYSCEF Doc. No. 953). Further argument on the contempt motion was heard on January 14, 2022 and the Court scheduled a hearing on the motion to be held on February 2, 2022 commencing at 9:30 a.m.

Direct testimony will be offered by affidavit. The Court will not consider the affidavit of any person who is not available for cross-examination. The parties will confer and prepare a Joint Exhibit Binder by January 24, 2022. Plaintiff will efile direct testimony affidavits by January 26, 2022. Defendants will efile direct testimony affidavits by January 28, 2022. Hard copies of all documents shall be delivered to Courtroom 232 by noon on January 31, 2022.

![](_page_139_Picture_0.jpeg)

The parties are directed to efile on or before January 24, 2022 a letter containing a Joint Appearance Sheet for the February 2, 2022 hearing.

Dated: January 14, 2022

| CHECK ONE: | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | | |-----------------------|----------------------------|--|--------|-----------------------|-----------------------|-----------| | | GRANTED | | DENIED | | GRANTED IN PART | X OTHER | | APPLICATION: | SETTLE ORDER | | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | INCLUDES TRANSFER/REASSIGN | | | | FIDUCIARY APPOINTMENT | REFERENCE |

22-01073-dsj Doc 14-31 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 31 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 141 of 174

# **EXHIBIT 31**

## SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUNDL.P.,

Plaintiff,

KWOKHO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/kla GUO WENGUI, a/kla GUO WEN GUI; a/k/a WAN GUE HAOYUN, a/kla MILES KWOK, a/kla HAOYUN GUO, GENEVER HOLDINGS CORPORATION, and GENEVER HOLDINGS LLC,

Defendants.

Index No: 652077/2017

Hon. Barry R. Ostrager

**[Fl4QjL08ED]** FINAL ORDER OF CIVIL CONTEMPT

Motion Sequence No. 19

WHEREAS this Co~rt's conditional order of civil contempt, dated March 16,2021, directed that if Defendant Kwok Ho Wan ("Kwok") failed to return the Lady May yacht (the "Lady May") to the jurisdiction of this Court by May 15, 2021, he would be subject to a \$500,000 fine-for each day that the Lady May remained outside the jurisdiction;-

**FILED: NEW YORK COUNTY CLERK 02/09/2022 04:33 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1182 RECEIVED NYSCEF: 02/09/2022

22-01073-dsj Doc 14-31 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 31 Pg 2 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 142 of 174

WHEREAS the Lady May was not returned to the jurisdiction by May 15, 2021;

WHEREAS on November 4,2021, the Appellate Division's First Department affIrme,d this Court's order holding Kwok in conditional civil contempt, finding that "the daily fine of .\$500,000 was intended to strongly encourage defendant to purge himself of the contempt, which, despite being permitted two months to accomplish, he has shown no interest in doing," and \_instructing this Court to proceed with an evidentiary hearing to resolve a dispute as to ownership and control of the yacht, and to assess appropriate penalties;

WHEREAS Kwok to date has failed to return the Lady May to the jurisdiction;

WHEREAS the evidentiary hearing specified by the First Department's November 4, 2021 Order was held on February 2,2022;

**FILED: NEW YORK COUNTY CLERK 02/09/2022 04:33 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1182 RECEIVED NYSCEF: 02/09/2022

22-01073-dsj Doc 14-31 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 31 Pg 3 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 143 of 174

WHEREAS both Kwok and the registered title holder of the Lady May, HK International (q)peCt.r~(i by *co~V\\$e \* Funds Investments (USA) Limited, LLC, were pregent at the hearini proffered evidence and were represented by counsel; and

WHEREAS, based on the evidence adduced at the hearing, the Court determines that

PAX has clearly and convincingly established that Kwok has a beneficial interest in and control

. h L d M *AS se--'- r-*--l\_ I "" ~ Cr, \A.,/t \:> 'R-'v;,VIMt *Uf* '1, *;:).0* 'd---1-. over tea y aYj "'- ., .~ " ~ ( \)~ C\-'> \'c)v\ ltA,Ad. CJv~ . . Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

- 1. Kwok has violated New York Judiciary Law 9753 and is civil contempt of this Court's orders. - 2. Kwokis directed to tender immediate payment to PAX in the amount of \$134,000,000, representing \$500,000 for each day between May 15,2021 and February 7,2022. - "3. The amount due to PAX shall continue to accrue at t~~rate of \$500,000 per day until Kwok returns the Lady May to the jurisdiction, which additional accrual shall begin ten . ~ e'fv,'(;Il.. ~ *N* f.,' ..L.. *'C* iv business days from t e Bltte of this Order, "'VJ1'~. *i>* u... *crl v* 11 *Y* I - 4. Payment of the amount set forth in paragraph 2 above shall be made to PAX within five se...rv *,'(JL , .*f f..rv business days of the ~ of this Order, w I~ No-t-t (...L. *t!) .* GVt,. *I .*

;:", ' 1'l;::t"l 5. The Court shall exercise its full authority under NeW York Judiciary Law 9 753 in the event the fine is not timely paid to PAX.

It is SO ORDERED this ?-'" ~ day of *Ii b VYt a* '='Cd' ,2022. R. OSTRAGERJ...\$.C. **A.OSTRAGER .** ,,~SC;}

2 of 2

22-01073-dsj Doc 14-32 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 32 Pg 1 of 16 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 144 of 174

# **EXHIBIT 32**

INDEX NO. 652077/2017 NYSCEF DOC. NO. 1187 RECEIVED NYSCEF: 02/10/2022 22-01073-dsj Doc 14-32 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 32 Pg 2 of 16 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 145 of 174

## SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No. 652077/2017

**NOTICE OF APPEAL**

Hon. Barry Ostrager

- against -

KWOK HO WAN, et al.,

Defendants.

**PLEASE TAKE NOTICE**, that Defendant Kwok Ho Wan ("Mr. Kwok"), hereby

appeals to the Appellate Division, First Judicial Department, from the Decision and Order of the

Supreme Court of the State of New York, County of New York (Ostrager, J.), dated February 9,

2022, and entered in the office of the New York County Clerk on February 9, 2022 (NYSCEF

Doc. No. 1181), and from each and every part thereof.

Dated: New York, New York Respectfully submitted, February 10, 2022

BAKER & HOSTETLER LLP

By: *\_/s/ John Siegal\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* John Siegal Melissa Carvalho 45 Rockefeller Plaza New York, New York 10111 212-589-1400 jsiegal@bakerlaw.com mcarvalho@bakerlaw.com

*Attorneys for Defendant Kwok Ho Wan*

To: Clerk of the County of New York (via NYSCEF) All counsel of Record (via NYSCEF)

## **,@,uprtmt Qlnurt nf t4t** *,@,tatt* **nf Ntw lnrk** *l\pptllatt* **mtutsinn: First ~uhtrtal 1lltpartmtnt**

Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil

| Case Title: Set fotih the title of the case as it appears on the summons, notice of petition or order to show cause by which the matter was or is to be commenced, or as amended. | For Court of Original Instance | | | | | |-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------|--|--| | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P | | | | | | | - against - | Date Notice of Appeal Filed | | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGSCORPORATION | For Appellate Division | | | | | | Case Type Civil Action D CPLR article 75 Arbitration | D | Filing Type D CPLR article 78 Proceeding Appeal D Special Proceeding Other Original Proceedings • CPLR Article 78 D Habeas Corpus Proceeding D Eminent Domain D Labor Law 220 or 220-b D Public Officers Law § 36 D Real Property Tax Law§ 1278 | | | | | Nature of Suit: Check up to three of the following categories which best reflect the nature of the case. | | | | | | | D Administrative Review | Business Relationships | Commercial | Contracts | | | | D Declaratory Judgment | D Domestic Relations | D Election Law | D Estate Matters | | | | D Family Court | D Mortgage Foreclosure | D Miscellaneous | • Prisoner Discipline & Parole | | | | D Real Property ( other than foreclosure) | D Statutory | D Taxation | D Torts | | |

NYSCEF DOC. NO. 1187 RECEIVED NYSCEF: 02/10/2022 22-01073-dsj Doc 14-32 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 32 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 147 of

Pg 4 of 16 174

| Appeal | | | | | | |----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------|---------------------------------------------------------|---------------------------------------------------------|--|--| | Paper Appealed From (Check one only): | | If an appeal has been taken from more than one order or | | | | | | | | judgment by the filing of this notice of appeal, please | | | | | | | indicate the below information for each such order or | | | | | | | judgment appealed from on a separate sheet of paper. | | | | • Amended Decree | • Determination | • Order | • Resettled Order | | | | Amended Judgement | Finding | l!iii!l Order & Judgment | • Ruling | | | | • Amended Order | Interlocutory Decree | Partial Decree | • Other (specify): | | | | Decision | • Interlocutory Judgment | • Resettled Decree | | | | | • Decree | • Judgment | • Resettled Judgment | | | | | Court: Supreme Court | | New York County: | | | | | 02/09/2022 Dated: | | Entered: 02/09/2022 | | | | | Judge (name in full): Hon. Barry Ostrager | | Index No.: 652077/2017 | | | | | • Interlocutory l!iii!l Final • Post-Final Stage: | | Trial: No Yes | Non-Jury If Yes: | | | | | Prior Unperfected Appeal and Related Case Information | | | | | | Are any appeals arising in the same action or proceeding currently pending in the court? | | | • No Yes | | | | If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. | | | | | | | 2021-00740 | | | | | | | Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other | | | | | | | jurisdiction, and if so, the status of the case: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Original Proceeding | | | | | | Commenced by: | D Order to Show Cause • Notice of Petition • Writ of Habeas Corpus | | Date Filed: | | | | Statute authorizing commencement of proceeding in the Appellate Division: | | | | | | | | | | | | | | | Proceeding Transferred Pursuant to CPLR 7804(g) | | | | | | Choose Court Court: | | County: | Choose Countv | | | | Judge (name in full): | | Order of Transfer Date: | | | | | | CPLR 5704 Review of Ex Parte Order: | | | | | | Choose Court Court: | County: | | Choose Countv | | | | Judge (name in full): | Dated: | | | | | | | Description of Appeal, Proceeding or Application and Statement of Issues | | | | | | | | | | | | | Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief | | | | | | | requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the | | | | | | | nature of the ex pa rte order to be reviewed. | | | | | | | Defendant-Appellant Kwok Ho Wan is appealing the Decision and Orders in this action entered February | | | | | | | 9, 2022 granting a final order of contempt pursuant to Judiciary Law § 753. | | | | | | | | | | | | | | | | | | | | | | | | | | |

Pg 5 of 16 174

Without limiting the arguments that may be presented on appeal, Defendant-Appellant Kwok Ho Wan states: that the Decision and Orders were in error, should be reversed in their entirety, and the contempt proceedings must be dismissed. The Supreme Court Decision and Orders, inter alia, granted a final order of contempt that was not legally or factually supported by the record. Even if the contempt finding was proper (it was not), the nature and the amount of the fine imposed was disproportionate, excessive, unauthorized by law, an abuse of discretion, and in violation of Defendant-Appellant's constitutional rights under the federal and state Constitutions.

## **Party Information**

| No. | Party Name | Original Status | Appellate Division Status | |-----|---------------------------------------------|-----------------|---------------------------| | 1 | Pacific Alliance Asia Opportunity Fund L.P. | Plaintiff | Respondent | | 2 | Kwok Ho Wan | Defendant | Appellant | | 3 | Genever Holdings LLC | Defendant | None | | 4 | Genever Holdings Corporation | Defendant | None | | 5 | | | | | 6 | | | | | 7 | | | | | 8 | | | | | 9 | | | | | 10 | | | | | 11 | | | | | 12 | | | | | 13 | | | | | 14 | | | | | 15 | | | | | 16 | | | | | 17 | | | | | 18 | | | | | 19 | | | | | 20 | | | |

INDEX NO. 652077/2017 NYSCEF DOC. NO. 1187 RECEIVED NYSCEF: 02/10/2022 22-01073-dsj Doc 14-32 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 32 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 149 of

## Attorney Information

Pg 6 of 16

174

| | Attorney/Firm Name: Stuart Sarnoff, O'Melveny & Myers LLP | | | |----------------------------------------------------------|--------------------------------------------------------------------------------------------------------|--------------|------------------------------| | Address: 7 Times Square | | | | | City: New York | I State: New York | I Zip: 10036 | I Telephone No: 212-326-2000 | | E-mail Address: ssamoff@omm.com | | | | | Attorney Type: | • Assigned lii!!i Retained | • Government | • Pro Hae Vice • Pro Se | | | Party or Parties Represented (set forth party number(s) from table above): | | | | | Attorney/Firm Name: John Siegal, Baker & Hostetler LLP | | ' | | Address: 45 Rockefeller Center | | | | | City: New York | I State: New York | IZip:10111 | I Telephone No: 212-589-1400 | | E-mail Address:jsiegal@baker1aw.com | | | | | Attorney Type: | • Assigned lii!!i Retained | • Government | • Pro Hae Vice • Pro Se | | | Party or Parties Represented (set forth party number(s) from table above): | | 2 | | | Attorney/Firm Name: Aaron Mitchell, Lawall & Mitchell, LLC | | | | Address: 99 Church Street, 4th floor | | | | | City: White Plains | I State: New York | I Zip: 10601 | I Telephone No: 973-285-3280 | | E-mail Address: aaron@lrnesq.com | | | | | Attorney Type: | • Assigned lii!!i Retained | D Government | • Pro Hae Vice • Pro Se | | | Party or Parties Represented (set forth party number(s) from table above): | | 3, l-f | | Attorney/Firm Name: | | | | | Address : | | | | | City: | I State: | I Zip: | I Telephone No: | | E-mail Address: | | | | | Attorney Type: | • Assigned • Retained | • Government | • Pro Hae Vice • Pro Se | | | Party or Parties Represented (set forth party number(s) from table above): | | | | Attorney/Firm Name: | | | | | Address: | | | | | | | | | | | | | | | City: | I State: | I Zip: | I Telephone No: | | E-mail Address: | | | | | Attorney Type: | • Assigned • Retained Party or Parties Represented (set forth party number(s) from table above): | • Government | • Pro Hae Vice • Pro Se | | | | | | | | | | | | Address: | | | | | City: | I State: | I Zip: | I Telephone No: | | Attorney/Firm Name: E-mail Address: Attorney Type: | • Assigned • Retained | • Government | • Pro Hae Vice • Pro Se |

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22-01073-dsj Doc 14-33 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 33 Pg 1 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 160 of 174

# **EXHIBIT 33**

| | Case 22-50073 22-01073-dsj Doc 432-3 Doc 14-33 Filed 05/24/22 Filed 04/13/22 | | Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | | Exhibit 33 Page 161 of | | |--------------------------------------|----------------------------------------------------------------------------------------------------|--------------------------------|--------------------------------------------------------|--------------------------|---------------------------|-------------------------------------------------------------| | jE ' ILED NYSCEF DOC. NO. 5 | FILED: APPELLATE DIVISION - 1ST DEPT 02/15/2022 03:13 PM 1ST : APPELLATE DIVISION - | Pg 2 of 3 174 DEPT | 02/l4/2022 | 02 : 37 PM | ) | 2022-00609 2022-0 0609 RECEIVED NYSCEF: 02/15/2022 | | NYSCEF | 3 suMMARY STATEMENT DOC. NO | oN | APPLICATION | 1uit | VED NYSCEF : | 02 /14/2 022 | | | EXPEDITED SERVICE (SUBMITTED | AND/OR BY MOVING PARTY) | INTERIM | RELIEF | | | | | February 14, 2022 Date: | | Case# | 2022-00609;2022-00610 | | | | | Title Pacific Alliance Asia Opportunity Fund L.P. | | Index/Indict/Docket# | 652077/2017 | | | | | of Matter Kwok Ho Wan, a/k/a, et al. v. | | | | | | | | [Z] Order D Appeal iudgment of | IZJ Supreme Surrogate•sO | Count~e_w_Y_o_rk | ____ _ | | | | | D Defendant by from Decree | D Family | Court entere.d on | Feb. 9 ,20 | 2022 | | | | Name of Barry R. Ostrager Judge | | Notice of Appeal Feb. 10 filed on | .20 | 22 | | | | If from administrative determination, state agency | | ___________________ | | _ | | | | Breach of Contract of Nature action | | | | | | | | proceeding ---==------------------------------ or | | | | | | | | A I Provisions of appealed from ~-~:::~tent _ _ _ t:jdecree | I | __________________ | | _ | | | | | | | | | | | | appellant a stay fo~ is This application by respondent | of | a contempt order pending appeal. | | | | | | Defendant-Appellant seeks a stay prior to February | | 2022, 16, | by which date | | | | | pay a \$134,000,000 he has been ordered to | | contempt fine to | Plaintiff. | | | | | If applying for a stay, state reason why requested | The \$134,000,000 | contempt fine is excessive, | | | | | | disproportionate, and unconstitutional, and the motion court | | | has invoked the prospect | | | | | of imprisonment if it is not paid within five business days, i.e. by February 16, | | | 2022. | | | | | N Has any undertaking been posted _o_. _________ _ | _ | If"yes", | state amount and type | ___ _ | | | | | | | | | | | | | | | | | | | | Has application been made to No. court below for this relief | If "yes", state | Disposition---------------,-- | | | | | | ~~-------- Has there been any prior application here in this court ___________ _ | lf"yes", and nature | state dates ______________ | | _ | | | | | | | | | | | | | | | | | | | | Has adversary been advised | Does he/she | | | | | | | Y~e~s~·---------- of this application _ | No. consent | ~~-------------- | | | | | | | | | | | |

| Case-020500018 | | | DOC | |----------------|--|--|-----| |----------------|--|--|-----|

Attorney for Movant

## 22-01073-dsj Doc 14-33 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 33 Pg 3 of 3 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 162 of

174

| | Attorney for Opposition | | |--|-------------------------|--| | | | |

| Address 360 Lexington Avenue | 7 Times Square | |---------------------------------------------------------------------------------------------------------|----------------------------------------------------------------| | New York, New York 10017 | New York, New York 10036 | | | 212-326-2000 | | Tel. No. 212-365-3391 (cell); 2120922-9149 (office) | New York | | Emai I imatetsky@ganfershore.com | | | Appearing by _lr_a_B_. _M_a_te_ts_k-'-y--------- | Stuart Sarnoff (ssarnoff@omm.com); 212-326-2293 | | Jason T. Cohen Qcohen@ganfershore.com); 646-250-4141 | Anton Metlitsky (ametlitsky@omm.com); 212-316-2291 | | Mark C. Zauderer (mzauderer@ganfershore.com); 917-331-7762 | | | | | | | | | | | | Appellant's application for a stay is denied. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | February 15, 2022 | | 1,/ 2:A 0 pposition &-_· +-/_J_t_,/_J_J-- | Fili' Dnte _ J'-1/,__J_f_""-'/())~, a_&_.tl) Reply | | ___ I I | __ __ I DECISION BY _ | | Motion Date ___ __ EXPEDITE ---"'-V_;_' PHONE ATTORNEYS ALL PAPERS TO BE SERVED PERSONALLY. | __________ ______ _ |

"Revised 10/19"

22-01073-dsj Doc 14-34 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 34 Pg 1 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 163 of 174

# **EXHIBIT 34**

## **SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK**

Pacific Alliance Asia Opportunity Fund L.P.,

Plaintiff,

KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN GUI, a/k/a WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS CORPORATION, AND GENEVER HOLDINGS LLC,

Index No. 652077/2017

Hon. Barry R. Ostrager

Defendants.

## **SUGGESTION OF BANKRUPTCY**

**FILED: NEW YORK COUNTY CLERK 02/15/2022 09:12 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1190 RECEIVED NYSCEF: 02/15/2022

22-01073-dsj Doc 14-34 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 34 Pg 2 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 164 of 174

**PLEASE TAKE NOTICE** that, on February 15, 2022, Ho Wan Kwok (the "**Debtor**"), a defendant in the above-captioned lawsuit, filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the "**Bankruptcy Code**"), with the United States Bankruptcy Court for the District of Connecticut (the "**Bankruptcy Court**"). A copy of the Debtor's voluntary petition is attached hereto as **Exhibit A**. The Debtor's chapter 11 case is being administered in the Bankruptcy Court under case number 22-50073.

**PLEASE TAKE FURTHER NOTICE** that, pursuant to section 362(a) of the Bankruptcy Code, the Debtor's filing of his voluntary petition operates as a stay of, among other things: (a) the commencement or continuation of all judicial, administrative, or other actions or proceedings against the Debtor (i) that were or could have been commenced before the commencement of the Debtor's chapter 11 case or (ii) to recover any claims against the Debtor that arose before the commencement of the Debtor's chapter 11 case; (b) the enforcement, against before the commencement of the Debtor's chapter 11 case; or (c) any act to obtain possession of

#### **FILED: NEW YORK COUNTY CLERK 02/15/2022 09:12 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1190 RECEIVED NYSCEF: 02/15/2022 22-01073-dsj Doc 14-34 Filed 04/13/22 Entered 04/13/22 01:55:22 Exhibit 34 Pg 3 of 12 Case 22-50073 Doc 432-3 Filed 05/24/22 Entered 05/24/22 23:04:58 Page 165 of 174

property of or from the Debtor's bankruptcy estate, or to exercise control over property of the

Debtor's bankruptcy estate.

This Suggestion of Bankruptcy is provided for informational purposes only, and does

not constitute an appearance or intent to appear in this proceeding by the undersigned.

Dated: February 15, 2022 New York, New York

*/s/ William R. Baldiga* William R. Baldiga, Esq. Uriel Pinelo, Esq. Seven Times Square New York, NY 10036 wbaldiga@brownrudnick.com upinelo@brownrudnick.com Telephone: (212) 209-4800 Facsimile: (212) 209-4801

*Proposed Counsel for Debtor*

![](_page_165_Picture_0.jpeg)

## **EXHIBIT A**

**Debtor's Voluntary Petition**

| FILED: NEW YORK COUNTY CLERK 02/15/2022 09:12 PM Case 22-50073 Case 22-50073 22-01073-dsj Doc 432-3 Doc 14-34 Doc 1 NYSCEF DOC. NO. 1190 | Filed 02/15/22 Filed 05/24/22 Filed 04/13/22 | Entered 02/15/22 20:26:52 Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | INDEX NO. 652077/2017 Page 1 of 14 Exhibit 34 Page 167 of RECEIVED NYSCEF: 02/15/2022 | |---------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------|-------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------| | Fill in this information to identify your case: | Pg 5 of 12 174 | | | | United States Bankruptcy Court for the: District of Connecticut ________________ District of ________ | | | | | Case number (If known): _________________________ Chapter you are filing under: | ‰ Chapter 7 ✔ ‰ Chapter 11 ‰ Chapter 12 ‰ Chapter 13 | | ‰ Check if this is an amended filing |

## Official Form 101

## Voluntary Petition for Individuals Filing for Bankruptcy **/**

**The bankruptcy forms use** *you* **and** *Debtor 1* **to refer to a debtor filing alone. A married couple may file a bankruptcy case together—called a** *joint case***—and in joint cases, these forms use** *you* **to ask for information from both debtors. For example, if a form asks, "Do you own a car," the answer would be** *yes* **if either debtor owns a car. When information is needed about the spouses separately, the form uses** *Debtor 1* **and** *Debtor 2* **to distinguish between them. In joint cases, one of the spouses must report information as** *Debtor 1* **and the other as** *Debtor 2***. The same person must be** *Debtor 1* **in all of the forms.**

**Be as complete and accurate as possible. If two married people are filing together, both are equally responsible for supplying correct information. If more space is needed, attach a separate sheet to this form. On the top of any additional pages, write your name and case number (if known). Answer every question.**

## Part 1: Identify Yourself

| | | About Debtor 1: | About Debtor 2 (Spouse Only in a Joint Case): | |----|-------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------| | 1. | Your full name | | | | | Write the name that is on your government-issued picture identification (for example, your driver's license or | Ho Wan __________________________________________________ First name | __________________________________________________ First name | | | passport). Bring your picture | __________________________________________________ Middle name Kwok __________________________________________________ | __________________________________________________ Middle name __________________________________________________ | | | identification to your meeting with the trustee. | Last name ___________________________ | Last name ___________________________ | | | | Suffix (Sr., Jr., II, III) | Suffix (Sr., Jr., II, III) | | 2. | All other names you | Miles __________________________________________________ | __________________________________________________ | | | have used in the last 8 years | First name __________________________________________________ | First name __________________________________________________ | | | Include your married or maiden names. | Middle name Kwok; Guo __________________________________________________ | Middle name __________________________________________________ | | | | Last name Wengui | Last name | | | | __________________________________________________ First name | __________________________________________________ First name | | | | __________________________________________________ Middle name Guo __________________________________________________ | __________________________________________________ Middle name __________________________________________________ | | | | Last name | Last name | | | | | | | 3. | Only the last 4 digits of your Social Security | 9 5 9 5 xxx – xx – ____ ____ ____ ____ | xxx – xx – ____ ____ ____ ____ | | | number or federal Individual Taxpayer Identification number | OR 9 xx – xx – ____ ____ ____ ____ | OR 9 xx – xx – ____ ____ ____ ____ | | | (ITIN) | | |

| | INDEX NO. 652077/2017 | | |--|-----------------------|--| | | | |

| | | | | | | FILED: NEW YORK COUNTY CLERK 02/15/2022 09:12 PM | | | | INDEX NO. 652077/2017 | | |----------------------|------------------------------------------------|---------------------------------|----------------|----------------|----------------|--------------------------------------------------|--------------------------------------------------------|---------------------------------------------|---------------------------|-----------------------|--| | NYSCEF DOC. NO. 1190 | Case 22-50073 Case 22-50073 22-01073-dsj | Doc 432-3 Doc 14-34 Doc 1 | Filed 02/15/22 | Filed 05/24/22 | Filed 04/13/22 | Entered 02/15/22 20:26:52 | Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | Page 2 of 14 RECEIVED NYSCEF: 02/15/2022 | Exhibit 34 Page 168 of | | |

Pg 6 of 12 174

| Debtor 1 | Ho Wan First Name Middle Name | Kwok _______________________________________________________ Last Name | Case number (if known)_____________________________________ | |----------|----------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------| | | | | | | | | About Debtor 1: | About Debtor 2 (Spouse Only in a Joint Case): | | 4. | Any business names and Employer Identification Numbers (EIN) you have used in | ✔ ‰ I have not used any business names or EINs. | ‰ I have not used any business names or EINs. | | | the last 8 years | _________________________________________________ Business name | _________________________________________________ Business name | | | Include trade names and doing business as names | _________________________________________________ Business name | _________________________________________________ Business name | | | | | | | | | ___ ___ – ___ ___ ___ ___ ___ ___ ___ EIN | ___ ___ – ___ ___ ___ ___ ___ ___ ___ EIN | | | | ___ ___ – ___ ___ ___ ___ ___ ___ ___ EIN | ___ ___ – ___ ___ ___ ___ ___ ___ ___ EIN | | 5. | Where you live | | If Debtor 2 lives at a different address: | | | | c/o Golden Spring (New York) Ltd. _________________________________________________ | _________________________________________________ | | | | Number Street | Number Street | | | | 162 East 64th Street _________________________________________________ | _________________________________________________ | | | | New York NY 10065 | | | | | _________________________________________________ City State ZIP Code | _________________________________________________ City State ZIP Code | | | | New York _________________________________________________ | _________________________________________________ | | | | County If your mailing address is different from the one above, fill it in here. Note that the court will send any notices to you at this mailing address. | County If Debtor 2's mailing address is different from yours, fill it in here. Note that the court will send any notices to this mailing address. | | | | _________________________________________________ Number Street | _________________________________________________ Number Street | | | | _________________________________________________ | _________________________________________________ | | | | P.O. Box | P.O. Box | | | | _________________________________________________ City State ZIP Code | _________________________________________________ City State ZIP Code | | 6. | Why you are choosing | Check one: | Check one: | | | this district to file for bankruptcy | ✔ ‰ Over the last 180 days before filing this petition, I have lived in this district longer than in any other district. | ‰ Over the last 180 days before filing this petition, I have lived in this district longer than in any other district. | | | | ‰ I have another reason. Explain. (See 28 U.S.C. § 1408.) ________________________________________ | ‰ I have another reason. Explain. (See 28 U.S.C. § 1408.) ________________________________________ | | | | ________________________________________ | ________________________________________ | | | | ________________________________________ ________________________________________ | ________________________________________ ________________________________________ | | | | | |

| | INDEX NO. 652077/2017 | |--|-----------------------| | | |

| Ho Wan Debtor 1 _______________________________________________________ First Name Middle Name | | Kwok Last Name | | | Case number (if known)_____________________________________ | |---------------------------------------------------------------------------------------------------------------|------------------|-----------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | | | | | | | Part 2: Tell the Court About Your Bankruptcy Case | | | | | | | The chapter of the 7. Bankruptcy Code you | | | for Bankruptcy (Form 2010)). Also, go to the top of page 1 and check the appropriate box. | | Check one. (For a brief description of each, see Notice Required by 11 U.S.C. § 342(b) for Individuals Filing | | are choosing to file under | ‰ | Chapter 7 | | | | | | ✔ ‰ | Chapter 11 | | | | | | ‰ | Chapter 12 | | | | | | ‰ | Chapter 13 | | | | | How you will pay the fee 8. | ✔ ‰ ‰ ‰ | with a pre-printed address. | local court for more details about how you may pay. Typically, if you are paying the fee yourself, you may pay with cash, cashier's check, or money order. If your attorney is I need to pay the fee in installments. If you choose this option, sign and attach the Application for Individuals to Pay The Filing Fee in Installments (Official Form 103A). Chapter 7 Filing Fee Waived (Official Form 103B) and file it with your petition. | | I will pay the entire fee when I file my petition. Please check with the clerk's office in your submitting your payment on your behalf, your attorney may pay with a credit card or check I request that my fee be waived (You may request this option only if you are filing for Chapter 7. By law, a judge may, but is not required to, waive your fee, and may do so only if your income is less than 150% of the official poverty line that applies to your family size and you are unable to pay the fee in installments). If you choose this option, you must fill out the Application to Have the | | Have you filed for 9. | ✔ ‰ No | | | | | | bankruptcy within the last 8 years? | ‰ | | Yes. District __________________________ When | | _______________ Case number ___________________________ | | | | | District __________________________ When | MM / DD / YYYY | _______________ Case number ___________________________ | | | | | | MM / DD / YYYY | | | | | | District __________________________ When | MM / DD / YYYY | _______________ Case number ___________________________ | | 10. Are any bankruptcy | ✔ ‰ No | | | | | | cases pending or being filed by a spouse who is | ‰ | | Yes. Debtor _________________________________________________ Relationship to you | | _____________________ | | not filing this case with | | | District __________________________ When | | _______________ Case number, if known____________________ | | you, or by a business partner, or by an | | | | MM / DD / YYYY | | | affiliate? | | | Debtor _________________________________________________ Relationship to you | | _____________________ | | | | | District __________________________ When | MM / DD / YYYY | _______________ Case number, if known____________________ | | | | | | | |

| Ho Wan Debtor 1 | Kwok _______________________________________________________ | Case number (if known)_____________________________________ | |-----------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | First Name Middle Name Part 3: | Last Name Report About Any Businesses You Own as a Sole Proprietor | | | 12. Are you a sole proprietor of any full- or part-time | ✔ ‰ No. Go to Part 4. | | | business? | ‰ Yes. Name and location of business | | | A sole proprietorship is a business you operate as an individual, and is not a separate legal entity such as a corporation, partnership, or LLC. | Name of business, if any Number Street | _______________________________________________________________________________________ _______________________________________________________________________________________ | | If you have more than one sole proprietorship, use a separate sheet and attach it to this petition. | _______________________________________________ | _______________________________________________________________________________________ _______ __________________________ | | | City | State ZIP Code | | | Check the appropriate box to describe your business: | | | | ‰ | Health Care Business (as defined in 11 U.S.C. § 101(27A)) | | | ‰ | Single Asset Real Estate (as defined in 11 U.S.C. § 101(51B)) | | | ‰ Stockbroker (as defined in 11 U.S.C. § 101(53A)) | | | | ‰ | Commodity Broker (as defined in 11 U.S.C. § 101(6)) | | | ‰ None of the above | | | 13. Are you filing under Chapter 11 of the Bankruptcy Code and are you a small business debtorRUDGHEWRUDV | | If you are filing under Chapter 11, the court must know whether you are a small business debtorRUDGHEWRU FKRRVLQJWRSURFHHGXQGHU6XEFKDSWHU9 so that it can set appropriate deadlines. If you indicate that you are a small business debtorRU\RXDUHFKRRVLQJWRSURFHHGXQGHU6XEFKDSWHU9, you must attach your most recent balance sheet, statement of operations, cash-flow statement, and federal income tax return or if any of these documents do not exist, follow the procedure in 11 U.S.C. § 1116(1)(B). | | GHILQHGE\86&† | ‰ No. I am not filing under Chapter 11. | | | ? For a definition of small | ✔ ‰ the Bankruptcy Code. | No. I am filing under Chapter 11, but I am NOT a small business debtor according to the definition in | | business debtor, see 11 U.S.C. § 101(51D). | ‰ | <hv,dpilolqjxqghu&kdswhu,dpdvpdooexvlqhvvghewrudffruglqjwrwkhghilqlwlrqlqwkh%dqnuxswf\< td=""></hv,dpilolqjxqghu&kdswhu,dpdvpdooexvlqhvvghewrudffruglqjwrwkhghilqlwlrqlqwkh%dqnuxswf\<> | | | ‰ | &RGHDQG,GRQRWFKRRVHWRSURFHHGXQGHU6XEFKDSWHU9RI&KDSWHU <hv,dpilolqjxqghu&kdswhu,dpdghewrudffruglqjwrwkhghilqlwlrqlq† riwkh<="" td=""></hv,dpilolqjxqghu&kdswhu,dpdghewrudffruglqjwrwkhghilqlwlrqlq†> | | | | %DQNUXSWF\&RGHDQG,FKRRVHWRSURFHHGXQGHU6XEFKDSWHU9RI&KDSWHU |

| Ho Wan Debtor 1 First Name Middle Name | | Kwok _______________________________________________________ Last Name | Case number (if known)_____________________________________ | |-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------|------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Part 4: | | | Report if You Own or Have Any Hazardous Property or Any Property That Needs Immediate Attention | | 14. Do you own or have any property that poses or is alleged to pose a threat of imminent and identifiable hazard to public health or safety? Or do you own any property that needs immediate attention? For example, do you own | ✔ ‰ No ‰ Yes. | What is the hazard? | ________________________________________________________________________ ________________________________________________________________________ If immediate attention is needed, why is it needed? _______________________________________________ | | perishable goods, or livestock that must be fed, or a building that needs urgent repairs? | | | ________________________________________________________________________ Where is the property? ________________________________________________________________________ Number Street |

| FILED: NEW YORK COUNTY CLERK 02/15/2022 09:12 PM | | | | | | | INDEX NO. 652077/2017 | |--------------------------------------------------|---------------------------------|----------------|----------------------------------|--|--------------------------------------------------------|------------------------------------------------------------------------|-----------------------| | Case 22-50073 Case 22-50073 22-01073-dsj | Doc 432-3 Doc 14-34 Doc 1 | Filed 02/15/22 | Filed 05/24/22 Filed 04/13/22 | | Entered 02/15/22 20:26:52 Entered 05/24/22 23:04:58 | Entered 04/13/22 01:55:22 Page 6 of 14 Exhibit 34 Page 172 of | |

| | | Case 22-50073 22-01073-dsj | | Doc 432-3 Doc 14-34 | Filed 05/24/22 Filed 04/13/22 | | | Entered 05/24/22 23:04:58 Entered 04/13/22 01:55:22 | | Exhibit 34 Page 172 of | | | |----------------------|--|-------------------------------|--|------------------------|----------------------------------|--------------------|--|--------------------------------------------------------|--|-----------------------------|--|--| | NYSCEF DOC. NO. 1190 | | | | | | | | | | RECEIVED NYSCEF: 02/15/2022 | | | | | | | | | | | | | | | | | | | | | | | | Pg 10 of 12 174 | | | | | | | | | | | | | | | | | | | | |

Debtor 1 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Case number (*if known*)\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ First Name Middle Name Last Name Ho Wan Kwok

## Part 5: Explain Your Efforts to Receive a Briefing About Credit Counseling

## **15. Tell the court whether you have received a briefing about credit counseling.**

The law requires that you receive a briefing about credit counseling before you file for bankruptcy. You must truthfully check one of the following choices. If you cannot do so, you are not eligible to file.

If you file anyway, the court can dismiss your case, you will lose whatever filing fee you paid, and your creditors can begin collection activities again.

*You must check one:*

**I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, and I received a certificate of completion.** ✔

Attach a copy of the certificate and the payment plan, if any, that you developed with the agency.

**I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, but I do not have a certificate of completion.**

Within 14 days after you file this bankruptcy petition, you MUST file a copy of the certificate and payment plan, if any.

**I certify that I asked for credit counseling services from an approved agency, but was unable to obtain those services during the 7 days after I made my request, and exigent circumstances merit a 30-day temporary waiver of the requirement.**

To ask for a 30-day temporary waiver of the requirement, attach a separate sheet explaining what efforts you made to obtain the briefing, why you were unable to obtain it before you filed for bankruptcy, and what exigent circumstances required you to file this case.

Your case may be dismissed if the court is dissatisfied with your reasons for not receiving a briefing before you filed for bankruptcy.

If the court is satisfied with your reasons, you must still receive a briefing within 30 days after you file. You must file a certificate from the approved agency, along with a copy of the payment plan you developed, if any. If you do not do so, your case may be dismissed.

Any extension of the 30-day deadline is granted only for cause and is limited to a maximum of 15 days.

## **I am not required to receive a briefing about credit counseling because of:**

- **Incapacity.** I have a mental illness or a mental deficiency that makes me incapable of realizing or making rational decisions about finances. - **Disability.** My physical disability causes me to be unable to participate in a briefing in person, by phone, or through the internet, even after I reasonably tried to do so. - **Active duty.** I am currently on active military duty in a military combat zone.

If you believe you are not required to receive a briefing about credit counseling, you must file a motion for waiver of credit counseling with the court.

**About Debtor 1: About Debtor 2 (Spouse Only in a Joint Case):**

*You must check one:*

**I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, and I received a certificate of completion.**

Attach a copy of the certificate and the payment plan, if any, that you developed with the agency.

**I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, but I do not have a certificate of completion.**

Within 14 days after you file this bankruptcy petition, you MUST file a copy of the certificate and payment plan, if any.

Your case may be dismissed if the court is dissatisfied with your reasons for not receiving a briefing before you filed for bankruptcy.

Any extension of the 30-day deadline is granted only for cause and is limited to a maximum of 15 days.

## **I am not required to receive a briefing about credit counseling because of:**

| ‰ Incapacity. | I have a mental illness or a mental deficiency that makes me incapable of realizing or making rational decisions about finances. | |------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | ‰ Disability. | My physical disability causes me to be unable to participate in a briefing in person, by phone, or through the internet, even after I reasonably tried to do so. | | | |

**Active duty.** I am currently on active military duty in a military combat zone.

If you believe you are not required to receive a briefing about credit counseling, you must file a motion for waiver of credit counseling with the court.

| | INDEX NO. 652077/2017 | |--|-----------------------| | | |

| Ho Wan Debtor 1 First Name | Kwok _______________________________________________________ Middle Name Last Name | | Case number (if known)_____________________________________ | | | | | | |-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------|--|--|--|--|--| | | | | | | | | | | | Part 6: | Answer These Questions for Reporting Purposes | | | | | | | | | 16. What kind of debts do | | 16a. Are your debts primarily consumer debts? Consumer debts are defined in 11 U.S.C. § 101(8) as "incurred by an individual primarily for a personal, family, or household purpose." | | | | | | | | you have? | ✔ ‰ ‰ | No. Go to line 16b. Yes. Go to line 17. | | | | | | | | | | 16b. Are your debts primarily business debts? Business debts are debts that you incurred to obtain money for a business or investment or through the operation of the business or investment. | | | | | | | | | ‰ ‰ | ✔ No. Go to line 16c. Yes. Go to line 17. | | | | | | | | | | 16c. State the type of debts you owe that are not consumer debts or business debts. Litigation expenses, claims, and judgments _______________________________________________________________ | | | | | | | | 17. Are you filing under Chapter 7? | ✔ ‰ | No. I am not filing under Chapter 7. Go to line 18. | | | | | | | | Do you estimate that after any exempt property is excluded and administrative expenses are paid that funds will be available for distribution to unsecured creditors? | ‰ ‰ No ‰ Yes | Yes. I am filing under Chapter 7. Do you estimate that after any exempt property is excluded and administrative expenses are paid that funds will be available to distribute to unsecured creditors? | | | | | | | | 18. How many creditors do you estimate that you owe? | ‰ 1-49 ✔ ‰ 50-99 ‰ 100-199 ‰ 200-999 | ‰ 1,000-5,000 ‰ 5,001-10,000 ‰ 10,001-25,000 | ‰ 25,001-50,000 ‰ 50,001-100,000 ‰ More than 100,000 | | | | | | | 19. How much do you estimate your assets to be worth? | ‰ \$0-\$50,000 ✔ ‰ \$50,001-\$100,000 ‰ \$100,001-\$500,000 ‰ \$500,001-\$1 million | ‰ \$1,000,001-\$10 million ‰ \$10,000,001-\$50 million ‰ \$50,000,001-\$100 million ‰ \$100,000,001-\$500 million | ‰ \$500,000,001-\$1 billion ‰ \$1,000,000,001-\$10 billion ‰ \$10,000,000,001-\$50 billion ‰ More than \$50 billion | | | | | | | 20. How much do you estimate your liabilities to be? | ‰ \$0-\$50,000 ‰ \$50,001-\$100,000 ‰ \$100,001-\$500,000 ‰ \$500,001-\$1 million | ‰ \$1,000,001-\$10 million ‰ \$10,000,001-\$50 million ‰ \$50,000,001-\$100 million ✔ ‰ \$100,000,001-\$500 million | ‰ \$500,000,001-\$1 billion ‰ \$1,000,000,001-\$10 billion ‰ \$10,000,000,001-\$50 billion ‰ More than \$50 billion | | | | | | | Part 7: Sign Below | | | | | | | | | | For you | correct. | I have examined this petition, and I declare under penalty of perjury that the information provided is true and | | | | | | | | | under Chapter 7. | If I have chosen to file under Chapter 7, I am aware that I may proceed, if eligible, under Chapter 7, 11,12, or 13 of title 11, United States Code. I understand the relief available under each chapter, and I choose to proceed | | | | | | | | | | If no attorney represents me and I did not pay or agree to pay someone who is not an attorney to help me fill out this document, I have obtained and read the notice required by 11 U.S.C. § 342(b). | | | | | | | | | | I request relief in accordance with the chapter of title 11, United States Code, specified in this petition. | | | | | | | | | | I understand making a false statement, concealing property, or obtaining money or property by fraud in connection with a bankruptcy case can result in fines up to \$250,000, or imprisonment for up to 20 years, or both. 18 U.S.C. §§ 152, 1341, 1519, and 3571. | | | | | | | | | 8 /s/ Ho Wan Kwok | 8 ______________________________________________ | _____________________________ | | | | | |

| Debtor 1 | Ho Wan First Name Middle Name | Kwok _______________________________________________________ Last Name | | | | Case number (if known)_____________________________________ | |--------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------|----|-------------------------------------------------------------| | For your attorney, if you are represented by one If you are not represented by an attorney, you do not need to file this page. | I, the attorney for the debtor(s) named in this petition, declare that I have informed the debtor(s) about eligibility to proceed under Chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each chapter for which the person is eligible. I also certify that I have delivered to the debtor(s) the notice required by 11 U.S.C. § 342(b) and, in a case in which § 707(b)(4)(D) applies, certify that I have no knowledge after an inquiry that the information in the schedules filed with the petition is incorrect. 8 _________________________________ /s/ William R. Baldiga _________________ 02/15/2022 Date | | | | | | | | | Signature of Attorney for Debtor | | MM / | DD | / YYYY | | | | William R. Baldiga | _________________________________________________________________________________________________ | | | | | | Printed name | | | | | | | | Brown Rudnick LLP | _________________________________________________________________________________________________ | | | | | | | Firm name | | | | | | | | 7 Times Square | _________________________________________________________________________________________________ | | | | | | | Number Street | | | | | | | | | New York | _________________________________________________________________________________________________ NY ______________________________________________________ ____________ ______________________________ | 10036 | | | | | City | State | ZIP Code | | | | | | | (212) 209-4800 Contact phone _____________________________________ | Email address | | | wbaldiga@brownrudnick.com ______________________________ | | | | 4813846 | NY ______________________________________________________ ____________ | | | | | | Bar number | State | | | | |