Preview
FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------- ---------- X
JACOB HAROUNIAN, individually, and derivatively Index No. 604437/2018
on behalf of JAM REALTY NYC LLC f/k/a JAM
REALTY CO., UNITED SEED LLC, UNITED
FLATIRON LLC, UNITED SQUARE LLC, UNITED Mot. Seq. No. #002
NATIONWIDE REALTY LLC a/k/a UNITED
NATIONWIDE REALTY, UNITED WEST LLC,
UNITED HAY LLC, 3M PROPERTIES LLC, UNITED
CHELSEA LLC, UNITED VILLAGE LLC, and
UNITED EAST LLC, Justice Assigned:
Hon. Timothy S. Driscoll
Plaintiff,
-against-
MARK HAROUNIAN, JAM REALTY NYC LLC AFFIRMATION
f/k/a JAM REALTY CO., UNITED SEED LLC, IN SUPPORT
UNITED FLATIRON LLC, UNITED SQUARE LLC,
UNITED NATIONWIDE REALTY LLC f/k/a
UNITED NATIONWIDE REALTY, UNITED
GREENWICH LLC, JACOB NY HOLDINGS LLC,
JACOB NY HOLDINGS LTD., 172 MULBERRY
REALTY LLC, and 163 CHRYSTIE REALTY LLC,
Defendants,
-and-
JAM REALTY NYC LLC f/k/a JAM REALTY CO.,
UNITED SEED LLC, UNITED FLATIRON LLC,
UNITED SQUARE LLC, UNITED NATIONWIDE
REALTY LLC f/k/a UNITED NATIONWIDE REALTY,
UNITED WEST LLC, UNITED HAY LLC,
3M PROPERTIES LLC, UNITED CHELSEA LLC,
UNITED VILLAGE LLC, and UNITED EAST LLC,
Nominal Defendants on the Derivative claims.
-- X
RONALD J. ROSENBERG, an attorney duly admitted to practice in all the
Courts of the State of New York, hereby affirms the following under penalty of
perjury:
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1. I am a member of Rosenberg Calica & Birney LLP, attorneys for the
Plaintiffs in the above action. As such, I am fully familiar with all the relevant
facts and circumstances. I respectfully submit this affirmation in support of
Plaintiffs'
motion seeking to join a pending action in the Supreme Court, New York
County entitled Mehrnaz Homapour et al. v. Mark Harounian et al., Index No.
6539975/2015 (the "New York County Action") to this Court, and upon joinder,
fixing venue of the two actions in Nassau County.
2. A true copy of the complaint in the Nassau County action is annexed
"A," "B."
as Exhibit and a true copy of the answer is annexed as Exhibit
3. A true copy of the complaint in the New York action is annexed as
"C," "D"
Exhibit and true copies of the answeri11g pleadings are annexed as Exhibit
"E"
(Answer of Mark Harounian and limited liability companies), (Answer of
"F"
Seligson defendants), and (Answer of Henry Dellaratta) respectively.
4. Plaintiff Jacob Harounian.("Jacob") commenced this action in April
2018 against his son Mark Harounian ("Mark") and the corporate defendants.
"A"
(Nassau ECF #1; Exhibit hereto). Defendants moved to dismiss the entire
action, which motion was fully briefed, argued, and decided in short order, and was
"G"
denied in its entirety on November 29. 2018. (Nassau ECF #85; Exhibit hereto).
Notice of Entry was served on the Defendants on November 30 (Nassau ECF #86)
and Defendants joined issue and filed an Answer on December 13, 2018. (ECF #89;
"B"
Exhibit hereto).
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5. The New York County Action, which raises some of the same legal and
factual issues, has been languishing in the Supreme Court, New York County, for
the last three years. Although it was commenced in November 2015 by the filing of
a Verified Complaint (NYC ECF #1), as amended in March 2016 (NYC ECF #22;
"C"
Exhibit hereto), issue was not joined. Instead, promptly following the filing of
the Amended Complaint, virtually every defendant filed separate motions to
dismiss (Mot. Seq. #002 through #006, NYC ECF #88-158).
6. Notably, Jacob has never appeared in the New York County action,
never retained a lawyer to represent him, did not file an Answer, and was named
solely as a nominal party because he is a member of the limited liability companies.
See Affidavit of Jacob Harounian sworn to January 7, 2019, at 18.
7. On December 8, 2016, Justice Bransten referred the New York County
case to mediation (NYC ECF #215). The mediation efforts were intermittent and
unsuccessful up through 2018. Thus, for over 18 months, the case was dormant.
8. Following commencement of Jacob's action on April 4, 2018, Mark's
attorneys filed a motion seeking to remove this action to New York County (NYC
ECF #220-240).
9. Justice Bransten correctly denied the motion to remove and
consolidate on June 21, 2018 as premature in light of the fact that there were
pending motions to dismiss and issue had not been joined (NYC ECF #257). A copy
"H."
of that Order is annexed as Exhibit
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10. During an appearance in the New York County action on August 16,
2018, Justice Bransten directed the parties to re-serve the old motions to dismiss,
"stale"
which she characterized as having been filed two years ago, and to file them
as Orders to Show Cause.
11. During that same appearance, Justice Bransten noted the existence of
the new Nassau County action and that perhaps Justice Driscoll should handle both
cases:
"[Since I last was involved in this case in December 2016], two
things have happened. One is that Mr. Harounian's father had
commenced a lawsuit in Nassau County. Happens to be before
my great friend Justice Driscoll of the Commercial Division in
Nassau County. . ..at least that's going on in Nassau County.
In fact, Justice Driscoll stated that since I am retiring and this
is a complicated case, this case really should be transferred
over to him. That hasn't happened, but he did say that, because
event." "I"
it is a complicated family (Exhibit hereto, pp. 6-7)
12. On November 1, 2018, Justice Bransten read her decision from the
bench denying in part and granting in part the renewed motions to dismiss. Orders
were subsequently issued on December 5, 2018. (NYC ECF #426-429).
13. Thus, even though the New York County Action was commenced three
years the actions are at the exact same point in litigation - dispositive
earlier,
motions to dismiss have been decided, issue was joined on the same day in both
cases (December 13, 2018), and discovery has not begun, making the actions ripe for
joinder.
14. Critically, Justice Bransten retired effective December 31, 2018, and
the New York County Action has been assigned to new Commercial Division Justice
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Joel M. Cohen. Transfer of the New York County case to this Court is appropriate
given this Court's familiarity with the issues. This Court has presided over the
Nassau County action since April 2018, is thoroughly familiar with the issues,
Defendants'
recently denied motion to dismiss in its entirety, and issue was joined
on December 13, 2018 (ECF #89). The cases should be heard by a Justice already
familiar with the parties and legal issues and claims.1
15. According to e-courts, Justice Joel M. Cohen has 288 cases on his
calendar, while Justice Driscoll has 157 cases, or almost half the caseload (Exhibit
"K"
hereto).
Defendants'
16. As soon as this Court denied the motion to dismiss in its
entirety, Defendants moved within two weeks of receiving that decision to fix venue
in New York County, desperately seeking to get away from this Court. As I stated
"ABD" -
on the record on December 14, it is obvious the defendants want "anyone
Driscoll."
but [Justice]
17. Such blatant judge-shopping should not be countenanced. In any
event, the determination where to fix venue is in the Court's sound discretion.
Upon ordering a joint trial, the Court must fix the venue of the joined actions
because they are in different counties. "If related Supreme Court actions are
pending in different counties, the court should designate, in the order of
consolidation or joint trial, a venue for the place of trial. A separate motion for
¹
By way of analogy, 22 N.Y.C.R.R. §202.69(c) governing the coordination of cases in differentjudicialdistricts
liststhe factorsfor theAdmiñistrative Judge toconsider when deciding which Judge to designate: "In deciding
whom to designate, theAdmin ative Judge shall consider, other things,the c.ñê!cas each
among aisting of
prospective a;;± and the overall needs of thecourt in which thatjusticeserves; the familiarity ofthat justice
with the "QLz at issue; thejustice'smanagerial ability;and the previous experience ofthe justicewith the field
litigation."
of law involved and with coordinated (emphasis added)
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made."
change of venue (CPLR 510-511) need not be Alexander, Commentary
C602:2.
18. "While normally the venue to be preferred, assuming both counties are
proper, is that in which the first action was commenced, the decision rests in the
sound discretion of the motion Justice and he [or she] may consider any other
circumstances which negate that choice, including the convenience of witnesses or
another."
calendar congestion, and which suggest preference for one county over
Perinton Assocs. v. Heicklen Farms, Inc., 67 A.D.2d 832, 833 (4th Dep't 1979)
(internal citation omitted) (emphasis added).
circumstances"
19. Thus, where "special exist, the Courts regularly fix
venue in the later commenced action. See, e.g., TT Enterprises v. Gralnick, 127
A.D.2d 651, 653 (2d Dep't 1987) ("[I]n the exercise of our discretion, we conclude
that sufficient special circumstances exist to warrant deviation from the general
rule and direct that venue be placed in Bronx County."); Usher v. Dean, 163 A.D.2d
784, 785 (3d Dep't 1990) ("Although...the general rule would require venue for the
joint trial herein to be placed in Bronx County, where the first action was
commenced, it is our view that special circumstances existed to support Supreme
County."
Court's use of discretion in placing venue in Dutchess ) (internal citations
omitted).
20. As set forth more fully in the accompanying Memorandum of Law, and
summarized below, there is more than ample reason to fix venue of the actions in
Nassau County including but not limited to:
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• The trial calendar in Nassau County is far less congested than New
York County. Special circumstances have been found to justify
departure from the general rule where "the calendar is less
congested"
in the county where the second action was commenced.
See, e.g., Jacobson v. Leaseway of Eastern New York, Inc., 107
A.D.2d 798, 798 (2d Dep't 1985); see also Alexander, Practice
Commentaries, C602:3 ("Despite the general priority rule, the
matter of venue lies in the court's discretion . .. . Issues of calendar
congestion . .. have influenced the courts.").
"A"
• to the 2018 State of Our Report (Exhibit
According Judiciary
hereto), the New York Supreme Court calendar had over 33,000
unresolved pending cases in 2017, while the Nassau Supreme Court
calendar had 21,920 pending cases, a significantly less caseload and
therefore, a less congested calendar. (relevant excerpts annexed as
"J"
Exhibit hereto)
• Justice Driscoll is familiar with the parties and the claims,
already
whereas the new Commercial Division Justice Joel M. Cohen
assigned as of January 2, 2019 is unfamiliar with the case.
• to e-courts, Justice Joel M. Cohen has 288 cases on his
According
calendar, while Justice Driscoll has 157 cases, or almost half the
"K"
caseload (Exhibit hereto).
• Plaintiff's choice of venue is afforded great weight, and "should
disturbed."
rarely be Boyle v. Starwood Hotels & Resorts
Worldwide, Inc., 110 A.D.3d 938 (2d Dep't 2013). Plaintiff (who is
91 years old) properly chose his forum in his County of residence
pursuant to CPLR § 503 and 509 ("the place of trial of an action
shall be in the county designated by the plaintiff, unless the place of
trial is changed to another county by order upon motion, or by
consent as provided in subdivision (b) of rule 511.").
• Plaintiff in the New York County action consents to fix venue of
her action in Nassau County, and thus both plaintiffs in both
actions consent to venue in Nassau County (see Affidavit of
Mehrnaz Homapour sworn to January 7, 2019 in support of
motion). This was precisely the scenario in Strasser v. Neuringer,
137 A.D.2d 750, 751 (2d Dep't 1988). The Court joined the actions
and fixed venue in the later-commenced action because,
inter alia, the plaintiff in the first action (who had venued
the first case in Suffolk County) agreed to place venue in
New York County where the second action was filed. So here,
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Mrs. Homapour has agreed to place venue of her New York County
action in Nassau County.
• The venue of the two actions cannot be dictated the
by defendants,
county"
unless they can show that Nassau County is an "improper
under CPLR §510 et seq., which they cannot do as both Plaintiffs
reside in Nassau County, as do all the Harounian family members.
• All the material witnesses in both actions reside in Nassau
party
County, including Jacob Harounian, Mark Harounian, Natalie
Harounian, and Mehrnaz Homapour. Far from inconvenienced by
fixing venue in Nassau County, they will be convenienced. The
convenience of witnesses is a factor to consider. See Castro v.
Durban, 129 A.D.3d 652, 653 (2d Dep't 2015) (Supreme Court
granted cross-motions to fix venue in the second filed action based
on residence of plaintiffs and individual defendants).
• witnesses will be convenienced a transfer to
Moreover, non-party by
Nassau County. Other Harounian family members who are not
parties to these actions, but who may be called as material
witnesses, include Shahriar Homapour, Mehrnooz Piroozian, and
Imanuel Piroozian, all of whom reside in Nassau County.
• Plaintiff in the Nassau action is 91 years has limited
County old,
driving ability, and would be greatly inconvenienced if forced to
litigate his claims in New York County. The physical strain and
stress of having to travel to New York City in addition to the
emotional stress of the litigation favors venue in Nassau County.
See, e.g., Brown v. Cope Bestway Exp., Inc., 99 A.D.3d 746, 748 (2d
Dep't 2012) (health or physical condition of the parties a factor to
consider).
21. Notably, when Mark originally sought to remove this action to New
York County, his main argument was that Justice Bransten was familiar with the
case, having heard oral argument on two motions previously. That argument no
longer exists as of December 31, 2018.
22. Finally, I note that although the New York County docket has some
471 entries, the number of entries is not reflective of the case's procedural posture.
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Entries 1 through 217 concerned the filing of the complaint, an amended complaint,
motions to disniiss, and an early Order to Show Cause for a receiver. Only after
Jacob commenced his action in April 2018 in Nassau County did the defendants
suddenly ramp up efforts to make it appear as though the New York case was
active, resulting in entries 218 through 461 (most of which consists of the re-filing of
the stale motions to dismiss per Justice Bransten's direction). Despite the volume
of entries, issue was just joined, and no discovery has occurred.
CONCLUSION
23. Special circumstances exist warranting that venue be fixed in Nassau
County upon joinder of the two actions. Accordingly, Plaintiffs motion should be
granted in its entirety, in the Court's sound discretion and as a matter of law, the
actions joined for purposes of trial and discovery, and venue fixed in Nassau
County, together with such other relief as to the Court deems just and proper.
Dated: Garden City, New York
January 7, 2019
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CERTIFICATION OF WORD COUNT IN COMPLIANCE WITH
RULE 17 OF THE RULES OF THE COMMERCIAL DIVISION
I hereby certify pursuant to Rule 17 of the Rules of the Commercial Division
that the foregoing Affirmation was prepared on a computer using Microsoft Word.
The total number of words in this affidavit, exclusive of the caption and signature
block, is 2,397 words.
Dated: Garden City, New York
January 7, 2018
Lesley A. 1(eardon, Esq.
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Plaintiff-Relator Allstate Insurance Companys motion to compel the deposition of Nonparty ProCare Funding, LLC for business records is granted.
ProCare is
ordered to appear for deposition and produce documents within 30 days of this ruling.
Plaintiff-Relators Allstate Insurance Companys (Allstate) (Plaintiff) moves to
compel the deposition of Non-party ProCare Funding LLC (ProCare) to appear for deposition to produce business records issued on November 29, 2023.
(Notice of Motion, pg. 2
; C.C.P. §2025.480(a).)
Plaintiff moves on the basis ProCare failed to produce any responsive documents in compliance with the lawfully issued subpoena without justification.
(Notice of Motion, pg. 2.)
Meet and Confer
A motion to compel a deposition must be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
(C.C.P. §§
2016.040
,
2025.480
(b).)
Plaintiffs counsel declares that on March 19, 2024, she sent Defendants counsel Reed a detailed meet and confer letter explaining the deficiencies in ProCares purported objections to the subpoena.
(Decl. of Stassi ¶6, Exh. D.)
Plaintiffs counsels declaration substantially complies with the requirements of C.C.P. §2016.040.
Background
On December 1, 2023, Plaintiff served a notice for the deposition for production of business records to ProCare set for December 19, 2023.
(Decl. of
Stassi
¶3, Exh. A.)
On January 19, 2024, ProCares counsel set forth ProCares purported objections to the subpoena in a letter.
(Decl. of
Stassi
¶5, Exh. C.)
Plaintiff filed the instant motion on March 22, 2024.
ProCare filed its opposition on July 3, 2024.
Plaintiff filed its reply on July 8, 2024.
Discussion
Where a deponent fails to produce any document, the subpoenaing party may move the court for an order compelling the production of documents, upon a showing of good cause.
(C.C.P. §
2025.480
(a);
see also Thai v. Richmond City Ctr., L.P.
(2022) 86 Cal.App.5th 282, 289.)
Good cause may be established where the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation.
(
Associated Brewers Distributing Co. v. Superior Court
(1967)
65 Cal.2d 583, 58
6-587.)
Documents are discoverable from third parties where they are reasonably likely to lead to the discoverable information or aid in evaluation of the claims. In the context of discovery, evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.
(
Moore v. Mercer
(2016) 4 Cal. App. 5th 424, 447.)
The broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.
(
Johnson v. Superior Court
(2000) 80 Cal.App.4th 1050, 1062.)
At this stage, relevance is construed broadly and [a]dmissibility is not the test, information unless privileged, is discoverable if it might reasonably lead to admissible evidence.
(
Stewart v. Colonial W. Agency, Inc
. (2001) 87 Cal.App. 1006, 1013.)
Here, good cause exists to compel compliance with Plaintiffs deposition subpoena.
The only documents Plaintiff has requested from ProCare are related to the transactions that form the fraudulent scheme alleged in the operative pleading.
(SAC ¶¶75-92.)
Plaintiff has pursued party discovery, including written interrogatories and requests for production of documents served on New Hope, which has revealed that ProCares arrangement with New Hope is similar to the arrangement New Hope has with Healthcare Financial Solutions, LLC (HFS).
(Decl. of Stassi ¶8.)
Specifically, like HFS, ProCare agreed to (and did) purchase patient accounts from New Hope prior to any patient services (MRIs) having been rendered and paid New Hope up front for the accounts, as set forth in the Accounts Receivable Purchase Agreement Between ProCare Funding, LLC (Buyer) and Adam Avelardo Perez d/b/a New Hope Imaging Services (Seller) dated March 10, 2021 that Defendants produced in discovery.
(Decl. of Stassi ¶8.)
The agreement was subsequently amended in 2019, and Defendants produced the amendment and a bill of sale from 2021 relating to ProCares purchase of New Hope patient accounts.
New Hopes bank account records that Plaintiff subpoenaed from the banks show that ProCare paid New Hope at least $65,710.00 pursuant to this arrangement.
(Decl. of Stassi ¶8; Supp-Decl. of Stassi ¶4, Exh. G.)
Plaintiffs deposition subpoena does not seek documents that would disclose patient information, and to the extent that some patient information may be identified in responsive documents, HIPAA allows such disclosure under an appropriate protective order such as the one that exists in the instant matter.
ProCare claims it need not comply with the subpoena because it requires production of confidential and sensitive business information.
ProCare fails to meet its burden to demonstrate exactly what confidential and sensitive information it would be forced to produce and why the protective order does not provide sufficient protection for that material.
If an objection is based on a claim of privilege or a claim that the information sought is protected . . . the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. §2031.240(c)(1);
see also HLC Properties, Limited v. Superior Court
(2005) 35 Cal.4th 54, 59 [The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists.].)
Here, ProCare has not demonstrated that any such privilege or protection it claims in its objections applies.
ProCares objections do not describe any of these purportedly confidential and sensitive documents with particularity, nor has it produced any privilege log.
Further, any concern ProCare may have is outweighed by Plaintiffs need for the documents and the protections available under the existing protective order.
(
See
Supp.-Decl. of Stassi ¶3, Exh. F.)
ProCares objections that the subpoena is overly broad and oppressive are unavailing because it fails to make a showing of undue burden.
(C.C.P. §2020.220(e) [subpoenaed person bears the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense];
Vasquez v. California School of Culinary Arts, Inc.
(2014) 230 Cal.App.4th 35, 42 [stating subpoenaed entity may only oppose production of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense].)
ProCares conclusory statements do not satisfy its burden to demonstrate undue burden and expense.
The Court grants Plaintiffs motion pursuant to C.C.P. §2025.480 and orders ProCare to
appear for deposition and produce documents and things within thirty (30) days of this Courts ruling
.
Accordingly, Plaintiffs motion is granted.
Conclusion
Plaintiffs motion to compel ProCares compliance with Plaintiffs deposition subpoena for production of business records is granted.
ProCare to appear for deposition and produce the requested documents with 30 days of this ruling.
Moving Party is to give notice of this ruling.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
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KATHRYN BURDGE vs AIRSTREAM, INC.
Jul 18, 2024 |
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24CV00800
BURDGE v. AIRSTREAM INC.
AIRSTREAM’S MOTION TO STAY
The motion to stay is denied.
I. BACKGROUND
Kathryn Burdge’s (“Burdge’) amended complaint, filed on March 26, 2024, alleges a
violation of the Song-Beverly Consumer Warranty Act in relation to her purchase of a 2023
Airstream Atlas RV. She purchased the Airstream in Temecula, California and she resided in
Page 6 of 9
Santa Cruz County at the time of the purchase. Burdge asserts various deficiencies/defects with
the RV.
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which stated, in part, the following: “LEGAL REMEDIES: EXCLUSIVE JURISDICTION FOR
DECIDING LEGAL DISPUTES RELATING TO THE ALLEGED BREACH OF EXPRESS
WARRANTY AND BREACH OF THE IMPLIED WARRANTIES ARISING BY
OPERATION OF LAW AS WELL AS THOSE RELATING TO REPRESENTATIONS OF
ANY NATURE RESTS IN THE COURTS WITHIN THE STATE OF MANUFACTURE,
WHICH IS OHIO.” (Ex. B to Dec. of March.)
This language is found on the second page of the Limited Warranty and is the second
paragraph before the signature line for the purchaser. The sales contract is 6 pages long and
signatures were required on each page and, on some pages, multiple signatures on each page.
II. MOTION
Airstream seeks to stay this action to allow Burdge to re-file the case in Ohio, the forum
selection state. Airstream bases its motion on the above-referenced forum selection clause
contained in the signed limited warranty. Airstream contends a motion to enforce a forum
selection clause is a motion to stay (or dismiss) the action to allow a plaintiff to file in the proper
court.
Airstream argues the forum selection provision is mandatory and reasonable. Further,
Airstream acknowledges Burdge cannot be compelled to waive her rights under Song-Beverly,
and thus, it will stipulate to have the Ohio courts apply Song-Beverly in this case. Airstream
contends a stay would allow for time to determine if the Ohio courts would apply Song-Beverly.
If they will not, then Burdge could bring the case back to Santa Cruz.
Burdge opposes the stay. She argues Airstream failed to provide evidence demonstrating
she freely and voluntarily agreed to the forum selection clause. Even though Burdge signed the
limited warranty “she had to sign the document even if she did not understand the importance of
the forum selection clause.” (Opp at pg. 3.) That is, Burdge was required to sign the
acknowledgment of document and that does not prove she waived her rights under Song-Beverly
freely and voluntarily.
Burdge asserts Airstream failed to provide evidence that the designated forum will not
diminish her rights afforded under California law. Specifically, she argues, even if the court finds
she freely and voluntarily agreed to the forum selection clause, Airstream cannot show that Ohio
law will not diminish her substantive rights. Burdge contends Airstream’s offer to stipulate to
have the Song-Beverly apply in Ohio is insufficient because the choice of law in the Limited
Page 7 of 9
Warranty states that Ohio law will govern procedural issues and how the express warranty is
construed and interpreted.
III. DISCUSSION
“Trial courts generally have the inherent power to stay proceedings in the interests of
justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33
Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79;
CCP § 128(a)(3) [“Every court shall have the power to do all of the following: To provide for the
orderly conduct of proceedings before it, or its officers.”].)
"The procedure for enforcing a forum selection clause is a motion to stay or dismiss for
forum non conveniens." (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294.)
“California law is ‘in accord with the modern trend which favors enforceability of such
[mandatory] forum selection clauses. [Citations.] No satisfying reason of public policy has been
suggested why enforcement should be denied a forum selection clause appearing in a contract
entered into freely and voluntarily by parties who have negotiated at arm's length. For the
foregoing reasons, we conclude that forum selection clauses are valid and may be given effect, in
the court's discretion and in the absence of a showing that enforcement of such a clause would be
unreasonable.’ [Citation.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21
Cal.App.5th 438, 444-445.)
“‘California courts will refuse to defer to the selected forum if to do so would
substantially diminish the rights of California residents in a way that violates our state's public
policy.’ [Citation.]” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) “The party
opposing enforcement of a forum selection clause ordinarily ‘bears the substantial burden of
proving why it should not be enforced.’ [Citations.] That burden, however, is reversed when the
claims at issue are based on unwaivable rights created by California statutes. In that situation,
the party seeking to enforce the forum selection clause bears the burden to show litigating
the claims in the contractually designated forum ‘will not diminish in any way the
substantive rights afforded … under California law.’ [Citations.]” (Id.) (Emphasis added.)
In this case, while she did sign the limited warranty, the court agrees with Burdge that the
warranty was not signed knowingly as to the forum selection clause and that application of the
clause would be unreasonable and/or unfair. The clause is buried in the second to the last
paragraph and is written in legalese such that a reasonable consumer could not be expected to
understand they were acquiescing to file a lawsuit in Ohio. The exclusive jurisdiction section
does not adequately inform the consumer that they would need to file suit in Ohio for warranty
issues, especially given that Burdge lives in California and purchased the Airstream in
Page 8 of 9
California. The court also notes the length of the sales contract and number of signatures
required as factors which balance in Burdge’s favor.
The court does not find Airstream has carried its burden in demonstrating that Burdge’s
substantive rights will not be diminished in any way if the case is brought in Ohio. Despite the
offer of Airstream’s counsel to stipulate to apply California law in Ohio, there is no guarantee
the Ohio courts will agree to this arrangement; that is, what is the effect of the stipulation in the
Ohio courts? Second, Airstream’s proposal would create two pending actions, which does not
promote judicial economy. Third, having California courts apply California law simply makes
more sense in terms of protecting Burdge’s rights under the Song-Beverly Act and for efficient
case management.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 9 of 9
Ruling
CLEMENTS, BOBBY vs ODAY, JEFF
Jul 19, 2024 |
CV-21-002417
CV-21-002417 – CLEMENTS, BOBBY vs ODAY, JEFF – Defendants’ Motion for Terminating and Monetary Sanctions and in the Alternative Evidentiary Sanctions – GRANTED, in part, Denied in part, unopposed.
The Court finds that Plaintiff’s failure to comply with the Court’s order of February 16, 2023, compelling Plaintiff’s responses to Defendant’s properly propounded discovery within fourteen (14) days, as well as Plaintiff’s failure to comply with the Court’s verbal admonishment in that regard at the Case Management Conference of October 30, 2023, constitutes a willful failure to comply with the Court’s orders that warrant the imposition of terminating sanctions against Plaintiff. (Code of Civil Procedure §§2023.010 and 2023.030; Department of Forestry & Fire Protection v. Howell (2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 6050.
Monetary Sanctions of attorney’s fees and costs in the sum of $1560.00 are hereby awarded against Plaintiff payable to Defendant’s Counsel, Aleshia M. White within thirty (30) days of service of this order on Plaintiff.
Ruling
Verdin vs. Nissan North America, Inc.
Jul 16, 2024 |
23CV-0202892
VERDIN VS. NISSAN NORTH AMERICA, INC.
Case Number: 23CV-0202892
This matter is on calendar for review regarding status of mediation. No status report has been filed.
An appearance is necessary on today’s calendar.
Ruling
OREN BEN ELISHA, ET AL. VS CHRISTINA YING DONG, ET AL.
Jul 18, 2024 |
24STCV08602
Case Number:
24STCV08602
Hearing Date:
July 18, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
OREN BEN ELISHA, et al.,
Plaintiffs,
v.
CHRISTINA YING DONG, et al.,
Defendants.
Case No:
24STCV08602
Hearing Date:
July 18, 2024
Calendar Number:
5
Defendants Christina Ying Dong (Dong) and Sylmar Calvert LLC (Sylmar) (collectively, Defendants) move to expunge the notice of lis pendens currently recorded on the property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property). Defendants additionally move for an award of attorneys fees.
The Court GRANTS Defendants motion and ORDERS the expungement of Plaintiffs lis pendens on the Property.
Background
This case relates to failed negotiations between Plaintiffs Oren Ben Elisha and Yosef Ben Elisha (Plaintiffs) and Defendant Dong to purchase real property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property) through Defendant Sylmar.
On July 27, 2023, Dong entered into a purchase agreement to purchase the Property and opened escrow. (Dong Decl. ¶ 5.)
In August of 2023, Dong offered Plaintiffs an opportunity to invest in an entity that would take title to the Property. (Dong Decl. 6.) On August 9, 2023, Dong filed the Articles of Organization for Sylmar for this purpose. (Dong Decl. ¶ 7, Ex. A.) The parties were scheduled to close escrow by February 28, 2024. (Dong Decl. ¶ 8.)
Plaintiffs filed this action on April 5, 2024, raising claims for (1) resulting trust; (2) constructive trust; (3) specific performance; (4) quiet title; (5) accounting; (6) breach of contract; (7) breach of fiduciary duty; and (8) dissolution of partnership.
Request for Judicial Notice
The Court takes judicial notice of Exhibits 1 and 3 to Plaintiffs opposition as public records. The Court does not take notice of the truth of their contents.
Evidentiary Objections
The Court overrules Plaintiffs evidentiary objections.
Legal Standard
A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action. (Code Civ. Proc., § 405.20.)
Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. &. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action. (Code Civ. Proc., § 405.22.)
At any time after a notice of pendency of action has been recorded, any party. . . with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. (Code Civ. Proc., §405.30.)
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
The party asserting the lis pendens has the burden of proof under Section 405.31 and Section 405.32.¿(Code Civ. Proc., § 405.30) The burden is to demonstrate that their pleadings contain a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence. (Code Civ. Proc., §405.31; see also McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298 [the burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith] .) Probable validity exists when it is more likely than not that the claimant will obtain a judgment on the claim. (Code Civ. Proc., § 405.3.)¿
Any time after a notice of pendency of action has been recorded the court may also upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintain the notice in the record title. (Code Civ. Proc., § 405.34)
Discussion
Procedural Defects
Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action. (Code Civ. Proc., § 405.23.)
Defendants contend that the lis pendens is subject to expungement under Code of Civil Procedure, section 405.23 because Plaintiffs did not immediately serve the notice on Defendants or file it with the Court. (Dong Decl., ¶¶ 20-21.)
On July 9, following Defendants filing of this motion, Plaintiffs filed a notice of lis pendens with this Court and served the notice on Plaintiffs counsel.
The notice requirement is intended to assure that property owners receive prompt notice of the recording of a lis pendens. (
Biddle v. Superior Court
(1985) 170 Cal.App.3d 135, 137.) However, where a plaintiff substantially complies with the notice statute and promptly conveys actual notice to the affected party, the purpose of the statute is satisfied. (
Ibid
.) In
Biddle
, the plaintiff filed a notice of lis pendens and mailed a copy to the defendant simultaneously, sent it to the wrong location and did not request a return receipt as required. (
Id
. at pp. 136-137.) The court found that the plaintiff had substantially complied with the notice statute. (
Id
. at p. 137.)
Here, the delay was longer. Plaintiffs served the notice roughly three months after filing it. However, Defendants had actual notice, and the method of Plaintiffs eventual service was otherwise proper. The Court therefore finds that Plaintiffs substantially complied with the notice statute.
Substantive Defects
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
Defendants contend that Plaintiffs claims for breach of contract, breach of fiduciary duty, accounting, and dissolution of partnership are not real property claims. Plaintiffs do not contest this. Plaintiffs rather contend that their claims for resulting trust, constructive trust, specific performance, and quiet title are real property claims that satisfy the test of probable validity.
The Court first notes that Plaintiffs Complaint is exceedingly short, with the factual allegations comprising slightly over one page. The factual allegations themselves only contain general statements that the parties had worked together on real estate opportunities as partners in the past, and that Dong owed Plaintiffs fiduciary duties as a result; that Dong and Plaintiffs agreed to form a partnership to purchase the Property; that Plaintiffs were involved in the negotiation and diligence process; and that Dong then purchased the Property herself under Sylmars name. The Complaint alleges that this purchase breached the parties agreement, as well as Dongs alleged fiduciary duties to Plaintiffs. The Complaint does not expand on the terms of the parties agreement, what performance was obligated of each party, or whether it was oral or in writing. Further, the Complaint does not contain any allegations specific to each of the eight causes of action. Nor have Plaintiffs amended the Complaint in the three months since it was filed to fill out these allegations.
Plaintiffs attempt to expand on the allegations of the Complaint in their opposition brief, stating that the reason the Complaint is so threadbare is because Plaintiffs were in a rush to file the lis pendens and thereby prevent Defendants from selling the Property. (Opposition at p. 12:10-12.) While that may be so, Plaintiffs are certainly not still in a rush three months later.
Specific Performance
To state a cause of action for breach of contract, a plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (
Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.)
If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (
Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (
Construction Protective Services, Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198-199.)
To obtain specific performance after a breach of contract, a plaintiff must generally show: (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. (
Real Estate Analytics, LLC v. Vallas
(2008) 160 Cal.App.4th 463, 472 [citation and quotation marks omitted].)
Defendants argue that Plaintiffs cannot satisfy the statute of frauds with respect to the alleged contract.
A contract coming within the statute of frauds is invalid unless it is memorialized by a writing subscribed by the party to be charged or by the party's agent. (
Secrest v. Security National Mortgage Loan Trust 2002-2
(2008) 167 Cal.App.4th 544, 552, citing Civ. Code, § 1624.) An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (
Ibid
, citing Civ. Code, § 1624, subd. (a)(3).)
Although the parties dispute whether the alleged agreement was for the purchase of land, the Court assumes for the sake of the statute of frauds analysis that it is because the alternative would render Plaintiffs contract claims inappropriate for a lis pendens in any event.
Here, Plaintiffs have not provided evidence of a writing memorializing the contract. Plaintiffs contend that a series of text messages sent between Dong and Yosef Ben Elisha memorialize the contract. Yosef Ben Elisha declares that the text messages state as follows:
Dong:
Hi Yossi, hope all is well. I made an appointment with Armin today to go to his office at 2pm. Thank you for introducing him and his firm. If you are still interested in the project. You are welcome to join me.
Plaintiff Yosef Ben Elisha:
Good morning Christina,
I can follow up with you around 12pm to try to show up. I do have meeting that I will need to schedule to make it happen. I will let you know around 12pm.
Dong:
Thanks so much Yossi. Sorry for the late notice. Just decided to meet with him for final DD before closing :)
Plaintiff Yosef Ben Elisha:
Yes
I will be there 2pm
(Decl. Yosef Ben Elish ¶ 29 [emphasis in original].)
There are two problems with Plaintiffs argument. First, these text messages hardly set forth the key terms of an agreement to purchase the Property. Second, [a]n electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including, but not limited to,
a text message
or instant message format communication, is insufficient under this title to constitute a contract to convey real property, in the absence of a written confirmation& (Civ. Code, § 1624, subd. (d) [emphasis added].) The Court therefore concludes that the text messages that Plaintiff provides do not satisfy the statute of frauds.
[F]ull performance takes a contract out of the statute of frauds has been limited to the situation where performance consisted of conveying property, rendering personal services, or doing something other than payment of money. (
Secrest
,
supra
, 167 Cal.App.4th at p. 556.)
Plaintiffs argue that the contract does not fall under the statute of frauds because they substantially performed. (Opposition at p. 14:5-10.) Plaintiffs contend that this substantial performance consisted of completing due diligence, meeting and communicating with the prior agent of the Property, communicating with the Propertys prior owner, communicating with the contamination specialist, communicating with prospective investors, retaining an architect, putting together cost estimates, and putting together a timeline of development. The problem with Plaintiffs argument is that
full
performance, not
substantial
performance, is required. Plaintiffs do not provide any allegations in the Complaint or arguments in their brief indicating what performance was actually required of them. The Court is not prepared to jump to the conclusion that the list of actions Plaintiffs provide constituted the full performance of Plaintiffs obligations under the alleged contract.
The Court therefore finds that the statute of frauds is not satisfied. As a result, there Plaintiffs have not shown the probable validity of their claims for specific performance or breach of contract.
Resulting Trust
There are two problems with Plaintiffs resulting trust claim.
First, [a] resulting trust does not arise from any oral agreement between the parties, but only as a result of the advancement of at least part of the consideration by the one claiming to be the beneficiary. (
Laing v. Laubach
(1965) 233 Cal.App.2d 511, 517.) Plaintiffs have failed to allege or provide a written agreement.
Second, [a] resulting trust cannot be enforced in favor of a person who has paid part of the consideration for the transfer of property unless it is possible to clearly establish the amount of money contributed by him [or her] or the proportion of his [or her] contribution to the whole purchase price &. One who claims a resulting trust in land must establish clearly, convincingly and unambiguously, the precise amount or proportion of the consideration furnished by him [or her] &. If the claimant does not, then the presumption of ownership arising from the legal title is not overcome and a resulting trust will not be declared. (
Lloyds Bank California v. Wells Fargo Bank
(1986) 187 Cal.App.3d 1038, 10441045 [citations and quotation marks omitted].) Here, Plaintiffs do not allege that they paid any of the consideration for the Property, let alone part of it.
For both of these reasons, Plaintiffs have not shown the probable validity of their claim for resulting trust.
Constructive Trust
[A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (
Communist Party v. 522 Valencia, Inc.
(1995) 35 Cal.App.4th 980, 990.)
As discussed above, Plaintiffs have not provided evidence of a contract giving them a right to the Property. Plaintiffs have not pled or argued a different basis for such a right, either. As a result, Plaintiffs have not shown that they can satisfy the second element, and therefore have not shown the probable validity of this claim.
Quiet Title
Code of Civil Procedure, section 761.020 sets forth the requirements for an action for quiet title:
The complaint shall be verified and shall include all of the following:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff against the adverse claims.
(Code Civ. Proc., § 761.020.)
There are several problems. First, the Complaint is not verified. Second, at its most generous reading, the Complaint alleges that the parties formed a contract to purchase the Property together but as discussed above, Plaintiffs have not satisfied the statute of frauds with respect to this contract, and therefore cannot show the basis for their title to the Property. For both of these reasons, the Court finds that Plaintiffs have not established the probable validity of their quiet title claim.
Conclusion
Plaintiffs have failed to show the probable validity of any of their claims sounding in real property. The Court therefore grants Defendants motion and orders the expungement of Plaintiffs lis pendens on the Property.
Preview
FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------- ---------- X JACOB HAROUNIAN, individually, and derivatively Index No. 604437/2018 on behalf of JAM REALTY NYC LLC f/k/a JAM REALTY CO., UNITED SEED LLC, UNITED FLATIRON LLC, UNITED SQUARE LLC, UNITED Mot. Seq. No. #002 NATIONWIDE REALTY LLC a/k/a UNITED NATIONWIDE REALTY, UNITED WEST LLC, UNITED HAY LLC, 3M PROPERTIES LLC, UNITED CHELSEA LLC, UNITED VILLAGE LLC, and UNITED EAST LLC, Justice Assigned: Hon. Timothy S. Driscoll Plaintiff, -against- MARK HAROUNIAN, JAM REALTY NYC LLC AFFIRMATION f/k/a JAM REALTY CO., UNITED SEED LLC, IN SUPPORT UNITED FLATIRON LLC, UNITED SQUARE LLC, UNITED NATIONWIDE REALTY LLC f/k/a UNITED NATIONWIDE REALTY, UNITED GREENWICH LLC, JACOB NY HOLDINGS LLC, JACOB NY HOLDINGS LTD., 172 MULBERRY REALTY LLC, and 163 CHRYSTIE REALTY LLC, Defendants, -and- JAM REALTY NYC LLC f/k/a JAM REALTY CO., UNITED SEED LLC, UNITED FLATIRON LLC, UNITED SQUARE LLC, UNITED NATIONWIDE REALTY LLC f/k/a UNITED NATIONWIDE REALTY, UNITED WEST LLC, UNITED HAY LLC, 3M PROPERTIES LLC, UNITED CHELSEA LLC, UNITED VILLAGE LLC, and UNITED EAST LLC, Nominal Defendants on the Derivative claims. -- X RONALD J. ROSENBERG, an attorney duly admitted to practice in all the Courts of the State of New York, hereby affirms the following under penalty of perjury: 1 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 1. I am a member of Rosenberg Calica & Birney LLP, attorneys for the Plaintiffs in the above action. As such, I am fully familiar with all the relevant facts and circumstances. I respectfully submit this affirmation in support of Plaintiffs' motion seeking to join a pending action in the Supreme Court, New York County entitled Mehrnaz Homapour et al. v. Mark Harounian et al., Index No. 6539975/2015 (the "New York County Action") to this Court, and upon joinder, fixing venue of the two actions in Nassau County. 2. A true copy of the complaint in the Nassau County action is annexed "A," "B." as Exhibit and a true copy of the answer is annexed as Exhibit 3. A true copy of the complaint in the New York action is annexed as "C," "D" Exhibit and true copies of the answeri11g pleadings are annexed as Exhibit "E" (Answer of Mark Harounian and limited liability companies), (Answer of "F" Seligson defendants), and (Answer of Henry Dellaratta) respectively. 4. Plaintiff Jacob Harounian.("Jacob") commenced this action in April 2018 against his son Mark Harounian ("Mark") and the corporate defendants. "A" (Nassau ECF #1; Exhibit hereto). Defendants moved to dismiss the entire action, which motion was fully briefed, argued, and decided in short order, and was "G" denied in its entirety on November 29. 2018. (Nassau ECF #85; Exhibit hereto). Notice of Entry was served on the Defendants on November 30 (Nassau ECF #86) and Defendants joined issue and filed an Answer on December 13, 2018. (ECF #89; "B" Exhibit hereto). 2 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 5. The New York County Action, which raises some of the same legal and factual issues, has been languishing in the Supreme Court, New York County, for the last three years. Although it was commenced in November 2015 by the filing of a Verified Complaint (NYC ECF #1), as amended in March 2016 (NYC ECF #22; "C" Exhibit hereto), issue was not joined. Instead, promptly following the filing of the Amended Complaint, virtually every defendant filed separate motions to dismiss (Mot. Seq. #002 through #006, NYC ECF #88-158). 6. Notably, Jacob has never appeared in the New York County action, never retained a lawyer to represent him, did not file an Answer, and was named solely as a nominal party because he is a member of the limited liability companies. See Affidavit of Jacob Harounian sworn to January 7, 2019, at 18. 7. On December 8, 2016, Justice Bransten referred the New York County case to mediation (NYC ECF #215). The mediation efforts were intermittent and unsuccessful up through 2018. Thus, for over 18 months, the case was dormant. 8. Following commencement of Jacob's action on April 4, 2018, Mark's attorneys filed a motion seeking to remove this action to New York County (NYC ECF #220-240). 9. Justice Bransten correctly denied the motion to remove and consolidate on June 21, 2018 as premature in light of the fact that there were pending motions to dismiss and issue had not been joined (NYC ECF #257). A copy "H." of that Order is annexed as Exhibit 3 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 10. During an appearance in the New York County action on August 16, 2018, Justice Bransten directed the parties to re-serve the old motions to dismiss, "stale" which she characterized as having been filed two years ago, and to file them as Orders to Show Cause. 11. During that same appearance, Justice Bransten noted the existence of the new Nassau County action and that perhaps Justice Driscoll should handle both cases: "[Since I last was involved in this case in December 2016], two things have happened. One is that Mr. Harounian's father had commenced a lawsuit in Nassau County. Happens to be before my great friend Justice Driscoll of the Commercial Division in Nassau County. . ..at least that's going on in Nassau County. In fact, Justice Driscoll stated that since I am retiring and this is a complicated case, this case really should be transferred over to him. That hasn't happened, but he did say that, because event." "I" it is a complicated family (Exhibit hereto, pp. 6-7) 12. On November 1, 2018, Justice Bransten read her decision from the bench denying in part and granting in part the renewed motions to dismiss. Orders were subsequently issued on December 5, 2018. (NYC ECF #426-429). 13. Thus, even though the New York County Action was commenced three years the actions are at the exact same point in litigation - dispositive earlier, motions to dismiss have been decided, issue was joined on the same day in both cases (December 13, 2018), and discovery has not begun, making the actions ripe for joinder. 14. Critically, Justice Bransten retired effective December 31, 2018, and the New York County Action has been assigned to new Commercial Division Justice 4 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 Joel M. Cohen. Transfer of the New York County case to this Court is appropriate given this Court's familiarity with the issues. This Court has presided over the Nassau County action since April 2018, is thoroughly familiar with the issues, Defendants' recently denied motion to dismiss in its entirety, and issue was joined on December 13, 2018 (ECF #89). The cases should be heard by a Justice already familiar with the parties and legal issues and claims.1 15. According to e-courts, Justice Joel M. Cohen has 288 cases on his calendar, while Justice Driscoll has 157 cases, or almost half the caseload (Exhibit "K" hereto). Defendants' 16. As soon as this Court denied the motion to dismiss in its entirety, Defendants moved within two weeks of receiving that decision to fix venue in New York County, desperately seeking to get away from this Court. As I stated "ABD" - on the record on December 14, it is obvious the defendants want "anyone Driscoll." but [Justice] 17. Such blatant judge-shopping should not be countenanced. In any event, the determination where to fix venue is in the Court's sound discretion. Upon ordering a joint trial, the Court must fix the venue of the joined actions because they are in different counties. "If related Supreme Court actions are pending in different counties, the court should designate, in the order of consolidation or joint trial, a venue for the place of trial. A separate motion for ¹ By way of analogy, 22 N.Y.C.R.R. §202.69(c) governing the coordination of cases in differentjudicialdistricts liststhe factorsfor theAdmiñistrative Judge toconsider when deciding which Judge to designate: "In deciding whom to designate, theAdmin ative Judge shall consider, other things,the c.ñê!cas each among aisting of prospective a;;± and the overall needs of thecourt in which thatjusticeserves; the familiarity ofthat justice with the "QLz at issue; thejustice'smanagerial ability;and the previous experience ofthe justicewith the field litigation." of law involved and with coordinated (emphasis added) 5 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 made." change of venue (CPLR 510-511) need not be Alexander, Commentary C602:2. 18. "While normally the venue to be preferred, assuming both counties are proper, is that in which the first action was commenced, the decision rests in the sound discretion of the motion Justice and he [or she] may consider any other circumstances which negate that choice, including the convenience of witnesses or another." calendar congestion, and which suggest preference for one county over Perinton Assocs. v. Heicklen Farms, Inc., 67 A.D.2d 832, 833 (4th Dep't 1979) (internal citation omitted) (emphasis added). circumstances" 19. Thus, where "special exist, the Courts regularly fix venue in the later commenced action. See, e.g., TT Enterprises v. Gralnick, 127 A.D.2d 651, 653 (2d Dep't 1987) ("[I]n the exercise of our discretion, we conclude that sufficient special circumstances exist to warrant deviation from the general rule and direct that venue be placed in Bronx County."); Usher v. Dean, 163 A.D.2d 784, 785 (3d Dep't 1990) ("Although...the general rule would require venue for the joint trial herein to be placed in Bronx County, where the first action was commenced, it is our view that special circumstances existed to support Supreme County." Court's use of discretion in placing venue in Dutchess ) (internal citations omitted). 20. As set forth more fully in the accompanying Memorandum of Law, and summarized below, there is more than ample reason to fix venue of the actions in Nassau County including but not limited to: 6 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 • The trial calendar in Nassau County is far less congested than New York County. Special circumstances have been found to justify departure from the general rule where "the calendar is less congested" in the county where the second action was commenced. See, e.g., Jacobson v. Leaseway of Eastern New York, Inc., 107 A.D.2d 798, 798 (2d Dep't 1985); see also Alexander, Practice Commentaries, C602:3 ("Despite the general priority rule, the matter of venue lies in the court's discretion . .. . Issues of calendar congestion . .. have influenced the courts."). "A" • to the 2018 State of Our Report (Exhibit According Judiciary hereto), the New York Supreme Court calendar had over 33,000 unresolved pending cases in 2017, while the Nassau Supreme Court calendar had 21,920 pending cases, a significantly less caseload and therefore, a less congested calendar. (relevant excerpts annexed as "J" Exhibit hereto) • Justice Driscoll is familiar with the parties and the claims, already whereas the new Commercial Division Justice Joel M. Cohen assigned as of January 2, 2019 is unfamiliar with the case. • to e-courts, Justice Joel M. Cohen has 288 cases on his According calendar, while Justice Driscoll has 157 cases, or almost half the "K" caseload (Exhibit hereto). • Plaintiff's choice of venue is afforded great weight, and "should disturbed." rarely be Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938 (2d Dep't 2013). Plaintiff (who is 91 years old) properly chose his forum in his County of residence pursuant to CPLR § 503 and 509 ("the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511."). • Plaintiff in the New York County action consents to fix venue of her action in Nassau County, and thus both plaintiffs in both actions consent to venue in Nassau County (see Affidavit of Mehrnaz Homapour sworn to January 7, 2019 in support of motion). This was precisely the scenario in Strasser v. Neuringer, 137 A.D.2d 750, 751 (2d Dep't 1988). The Court joined the actions and fixed venue in the later-commenced action because, inter alia, the plaintiff in the first action (who had venued the first case in Suffolk County) agreed to place venue in New York County where the second action was filed. So here, 7 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 Mrs. Homapour has agreed to place venue of her New York County action in Nassau County. • The venue of the two actions cannot be dictated the by defendants, county" unless they can show that Nassau County is an "improper under CPLR §510 et seq., which they cannot do as both Plaintiffs reside in Nassau County, as do all the Harounian family members. • All the material witnesses in both actions reside in Nassau party County, including Jacob Harounian, Mark Harounian, Natalie Harounian, and Mehrnaz Homapour. Far from inconvenienced by fixing venue in Nassau County, they will be convenienced. The convenience of witnesses is a factor to consider. See Castro v. Durban, 129 A.D.3d 652, 653 (2d Dep't 2015) (Supreme Court granted cross-motions to fix venue in the second filed action based on residence of plaintiffs and individual defendants). • witnesses will be convenienced a transfer to Moreover, non-party by Nassau County. Other Harounian family members who are not parties to these actions, but who may be called as material witnesses, include Shahriar Homapour, Mehrnooz Piroozian, and Imanuel Piroozian, all of whom reside in Nassau County. • Plaintiff in the Nassau action is 91 years has limited County old, driving ability, and would be greatly inconvenienced if forced to litigate his claims in New York County. The physical strain and stress of having to travel to New York City in addition to the emotional stress of the litigation favors venue in Nassau County. See, e.g., Brown v. Cope Bestway Exp., Inc., 99 A.D.3d 746, 748 (2d Dep't 2012) (health or physical condition of the parties a factor to consider). 21. Notably, when Mark originally sought to remove this action to New York County, his main argument was that Justice Bransten was familiar with the case, having heard oral argument on two motions previously. That argument no longer exists as of December 31, 2018. 22. Finally, I note that although the New York County docket has some 471 entries, the number of entries is not reflective of the case's procedural posture. 8 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 Entries 1 through 217 concerned the filing of the complaint, an amended complaint, motions to disniiss, and an early Order to Show Cause for a receiver. Only after Jacob commenced his action in April 2018 in Nassau County did the defendants suddenly ramp up efforts to make it appear as though the New York case was active, resulting in entries 218 through 461 (most of which consists of the re-filing of the stale motions to dismiss per Justice Bransten's direction). Despite the volume of entries, issue was just joined, and no discovery has occurred. CONCLUSION 23. Special circumstances exist warranting that venue be fixed in Nassau County upon joinder of the two actions. Accordingly, Plaintiffs motion should be granted in its entirety, in the Court's sound discretion and as a matter of law, the actions joined for purposes of trial and discovery, and venue fixed in Nassau County, together with such other relief as to the Court deems just and proper. Dated: Garden City, New York January 7, 2019 9 of 10 FILED: NASSAU COUNTY CLERK 01/07/2019 05:50 PM INDEX NO. 604437/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/07/2019 CERTIFICATION OF WORD COUNT IN COMPLIANCE WITH RULE 17 OF THE RULES OF THE COMMERCIAL DIVISION I hereby certify pursuant to Rule 17 of the Rules of the Commercial Division that the foregoing Affirmation was prepared on a computer using Microsoft Word. The total number of words in this affidavit, exclusive of the caption and signature block, is 2,397 words. Dated: Garden City, New York January 7, 2018 Lesley A. 1(eardon, Esq. 10 of 10