Barkai v. Nuendorf et al

Filing 603

MEMO ENDORSED ORDER denying as moot 397 Motion for FOR SUPPLEMENTAL EVIDENTIARY HEARING OF SEPTEMBER, 2024 STATUS CONFERENCE. ENDORSEMENT: Plaintiff's request is denied as moot, as the pre-motion conference was held on December 17, 2024. (S ee Dkt. No. 555.) Further, Plaintiff's request for a factual hearing was denied on August 28, 2024. (See Dkt. No. 515.) The Clerk of Court is respectfully directed to close the Motion. (Dkt. No. 397.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/6/25) (yv)

Ariel Barkai
16852 SW FIFTH WAY
Weston, FL 33326
[phone]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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Docket No.: 21-cv-04060-KMK-JCM

ARIEL DAN BARKAI,
Plaintiff,
-against
ROBERT NUENDORF, et al.,
Defendants.
---------------------------------------------------------------------- X

TO:

Hon. Judge Kenneth M. Karas
District Judge, SDNY

Motion Request For Supplemental Evidentiary Hearing Of September, 2024 Status Conference
Your Honor:
I am the Plaintiff in the above referenced matter and I am writing to respectfully request that the
September, 2024 status call which I have already requested be held live in Your Honor’s Court be
supplemented to constitute an evidentiary hearing. This will allow me to submit and present crucial
evidence, including recordings and AI-analyzed recordings, which support a finding of undisputed facts in
this case.
The recordings are integral to demonstrating certain key points particularly as related to the pending and
critical anticipated summary judgements motions, and I believe that an in-person hearing will facilitate a
clearer and more thorough presentation of this evidence. Playing the recordings in court and explaining
their contents will be far more effective than attempting to describe them within the confines of our
25-page limit for summary judgment arguments. As this Court ruled in Barkai v Mendez

21-cv-4050-KMK “This audio recording moves the conversation from disputable to undisputed. See

Alli v. City of New York, No. 21-CV-4866, 2023 WL 6393403, at *3 (S.D.N.Y. Sept. 29, 2023)
("Incontrovertible evidence relied on by the moving party, such as relevant videotape whose accuracy
is unchallenged, should be credited by the court on . . . a [summary judgment] motion if it so utterly
discredits the opposing party's version that no reasonable juror could fail to believe the version
advanced by the moving party." (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)));
see also Cambridge Cap. LLC v. Ruby Has LLC, ___ F.Supp.3d ___, 2023 WL 3956868, at *25
(S.D.N.Y. June 2, 2023) ("When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment." (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007))).

Because of the Clarkstown Police Department's (CPD) failure to employ body cameras in contravention
of national standards it is clear that Plaintiff, this Court and eventual fact finders are left no choice but to
rely on Plaintiff’s recording as the only objective evidence upon which to make legal determinations
based solely on undisputed facts. Unlike recent cases including the shooting of Airman Roger Fortson in
North Florida or the recent police involved shooting in Utica, New York, one which led to a disciplinary
action of firing of a Sheriff’s deputy and one which is likely to absolve officers of misconduct proving the
absolute necessity of unbiased objective evidence for reaching proper legal and disciplinary
determinations, in the instant action, the only evidence that is both objective and undisputed is the
recording of the conference call. Of critical importance is not just what the recording captures, but what is
not on the recording but should be if one or another party's testimony is to be believed. The artificial
intelligence analysis will prove to this Court that certain critical elements that would need to be on the
recording to support the testimony of one party do not exist bolstering the testimony of the other party
that the testimony of the counterparty is knowingly fabricated.

Allowing the actual recordings to be played in court will not only aid in the administration of justice but
will also ensure that the facts are presented in their most accurate form. This approach will provide a
comprehensive understanding of the evidence, ensuring that all parties and the court have a clear and
factual basis upon which to proceed.

Accordingly Plaintiff hereby moves to request that this Court hold the September, 2024 status conference
live and in person in this honorable Court and that Plaintiff be allowed to present evidence and be
challenged by Defendants as well as this Court as to the undisputed fact that the evidence fully supports
Plaintiff’s claims in the matters in this case.

Thank you for your consideration of this request. I look forward to your favorable response and am
prepared to provide any additional information or clarification as needed.

Respectfully submitted,
Dated: Weston, FL
July 2nd, 2024
Ariel Barkai
Pro Se Plaintiff

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