Justice Melvin Schweitzer
Gliklad moved to strike Cherney's affirmative defenses. The court refrained from striking Cherney's ninth affirmative defense of lack of consideration ordering him to sit for a deposition regarding custody of documents relating to Russian coal company, KuzbassRazresUgol (Kuzbass). Gliklad sued for summary judgment in lieu of complaint to enforce a promissory note of $270 million that Cherney signed as the borrower. Gliklad asserted the note was consideration for transferring his 26.37 percent equity interest in Kuzbass to Cherney. Cherney argued he mistakenly signed the note as the borrower, claiming it was Gliklad who owed him $270 million. After reviewing the transcript of Cherney's deposition, the court granted Gliklad's motion. The court found Cherney refused and failed to back up his claim with documentary evidence, changing his theories and positions, inferring that his failure to furnish documents was willful as he repeatedly failed to respond to discovery demands or comply with discovery orders. It ruled that "amidst this sea of inconsistencies," and contradictory statements, Cherney's excuses and explanations for why he could not provide requested documentation regarding his alleged Kuzbass investment were not credible.
