Preview
FILED: KINGS COUNTY CLERK 04/23/2018 05:57 PM INDEX NO. 500534/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/23/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
JANBAR INC.,
Plaintiff,
Index No. 500534/2018
against
SUNRISE CONSTRUCTION LLC, 533 LEO
LLC, LARGO INVESTMENTS LLC and
One" Ten,"
"John Doe through "John Doe
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO EXTEND DEADLINE PURSUANT TO CPLR 2004
BLANK ROME LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174-0208
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
Attorneys for Defendants
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PRELIMINARY STATEMENT
Defendants Sunrise Construction LLC, 553 LEO LLC and Largo Investments LLC
"Defendants"
(collectively, "Defendants"), by and through their undersigned counsel, respectfully submit this
Memorandum of Law in support their motion, pursuant to CPLR § 2004, to extend the time within
which Defendants may answer, move, or otherwise respond to the Verified Complaint
(" Complaint" (" Date"
("Complaint") of plaintiff Janbar, Inc. ("Plaintiff") (the "Response Date"). As set forth herein,
Defendants'
request for an extension of the Response Date to May 23 2018 is supported by good
cause and will not prejudice Plaintiff in any way.
FACTS
stipulation¹
Plaintiff filed the Complaint on January 10, 2018. (Dkt. No. 1) Upon stipulation of the
Defendants'
parties, the time to respond was previously extended to April 23, 2018 in exchange for Defendants
("
agreement to accept service. (See Affirmation of Craig M. Flanders ("Flanders Affirm.") ¶ 3, and
Stipulation, Flanders Affirm. Ex. A)
Between March 1, 2018 and April 18, 2018, Defendants and their counsel investigated the
factual and legal merits of the allegations in the Complaint. (Id. ¶ 4) Based upon this investigation,
it appears that the causes of action asserted by Plaintiff are not only factually inaccurate, but are
also barred by the explicit language in certain unconditional waivers and releases signed by
Plaintiff's own President on May 23, 2016 and September 21, 2016 (the "Releases). (Id.) On
April 18, 2018, Defendants submitted a demand to Plaintiff's counsel (enclosing copies of, among
other documentary evidence, the Releases) demanding that Plaintiff voluntarily dismiss the action,
Letter"
with prejudice, by the close of business on April 19, 2018 (the "Demand Letter"). (Id. ¶ 5)
1
Notably, Plaintiff's counsel waited a full month to execute the stipulation after verbally agreeing
to the extension.
1
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Defendants'
In the April 18 email to Mr. Rebisz transmitting the Demand Letter, Defendants counsel
stated that, "[u]nder the circumstances, we think it would be better for all sides to push out the
response to the Complaint ... Without an extension, we would have no choice but to proceed with
the motion [to dismiss] on Monday [April 23, 2018]. Please confirm your agreement to the
extension."
(Id. ¶ 6)
On April 19, 2018, Mr. Rebisz rejected the adjournment request without addressing the
Defendants'
merits of the claims. (Flanders Affirm. ¶ 7) counsel offered to extend the time for
Plaintiff to consider the Demand Letter to evaluate a potential withdrawal in exchange for an
extension of time to answer. Plaintiff's counsel has not responded to that proposal, burdening this
court with unnecessary motion practice. (Id. ¶ 8)
ARGUMENT
"CPLR 2004 vests the trial court with discretion to extend the time to perform any act ...
shown.'"
'upon such terms as may be just and upon good cause Tewari v. Tsoutsouras, 75 N.Y.2d
—
1, 11-12 (1989). In considering a motion to extend, the court may properly consider factors such
as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason
given for the delay, and whether the moving party was in default before seeking the extension. Id.
Where, as here, the motion to extend is filed and served before the deadline sought to be extended
has expired, the motion need not be accompanied by an affidavit of merit. Salzman & Salzman v.
Gardiner, 100 A.D.2d 846, 846 (2d Dep't 1984).
Here, because the length of the extension sought by Defendants is a mere thirty-days (30),
there will be no prejudice to Plaintiff. (Flanders Affirm. ¶ 9) Further, because this motion was
filed and served before the deadline sought to be extended had expired, this factor weighs in favor
Defendants' N.Y.S.2d'
of granting requested extension. See Bermudez v. City of New York, 254 N.Y.S.2d
2
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("
420, 421 (1st Dep't 1964) ("Such an extension of time could have been, and unquestionably would
have been granted by the court, even if refused by plaintiff, if application had been made before
the expiration of the time to answer.").
Defendants'
Defendants request for an extension of time is supported by good cause. At this time, the
evidence possessed by Defendants and their counsel indicates that the causes of action asserted by
Plaintiff are both factually inaccurate and barred by the Releases. (Flanders Affirm. ¶ 9) We are
still in the process of gathering and evaluating the relevant evidence, and the requested extension
will afford Defendants and their counsel adequate time to complete this investigation. The
requested extension will not prejudice Plaintiff in any respect. (Id.)
CONCLUSION
For the foregoing reasons, and in the interests of justice, Defendants respectfully request
that the Court grant their Motion to Extend Time.
Dated: New York, New York
April 23, 2018
Respectfully submitted,
BLANK ROME LLP
By: /s/ Craig M. Flanders
Craig M. Flanders
John C. Kessler
The Chrysler Building
405 Lexington Avenue
New York, NY 10174-0208
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
Email: CFlanders@blankrome.com
JKessler@blankrome.com
Attorneys for Defendants
3
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FILED: KINGS COUNTY CLERK 04/23/2018 05:57 PM INDEX NO. 500534/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JANBAR INC., Plaintiff, Index No. 500534/2018 against SUNRISE CONSTRUCTION LLC, 533 LEO LLC, LARGO INVESTMENTS LLC and One" Ten," "John Doe through "John Doe Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXTEND DEADLINE PURSUANT TO CPLR 2004 BLANK ROME LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174-0208 Telephone: (212) 885-5000 Facsimile: (212) 885-5001 Attorneys for Defendants 152478.00601/107146388v. 1 1 of 4 FILED: KINGS COUNTY CLERK 04/23/2018 05:57 PM INDEX NO. 500534/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/23/2018 PRELIMINARY STATEMENT Defendants Sunrise Construction LLC, 553 LEO LLC and Largo Investments LLC "Defendants" (collectively, "Defendants"), by and through their undersigned counsel, respectfully submit this Memorandum of Law in support their motion, pursuant to CPLR § 2004, to extend the time within which Defendants may answer, move, or otherwise respond to the Verified Complaint (" Complaint" (" Date" ("Complaint") of plaintiff Janbar, Inc. ("Plaintiff") (the "Response Date"). As set forth herein, Defendants' request for an extension of the Response Date to May 23 2018 is supported by good cause and will not prejudice Plaintiff in any way. FACTS stipulation¹ Plaintiff filed the Complaint on January 10, 2018. (Dkt. No. 1) Upon stipulation of the Defendants' parties, the time to respond was previously extended to April 23, 2018 in exchange for Defendants (" agreement to accept service. (See Affirmation of Craig M. Flanders ("Flanders Affirm.") ¶ 3, and Stipulation, Flanders Affirm. Ex. A) Between March 1, 2018 and April 18, 2018, Defendants and their counsel investigated the factual and legal merits of the allegations in the Complaint. (Id. ¶ 4) Based upon this investigation, it appears that the causes of action asserted by Plaintiff are not only factually inaccurate, but are also barred by the explicit language in certain unconditional waivers and releases signed by Plaintiff's own President on May 23, 2016 and September 21, 2016 (the "Releases). (Id.) On April 18, 2018, Defendants submitted a demand to Plaintiff's counsel (enclosing copies of, among other documentary evidence, the Releases) demanding that Plaintiff voluntarily dismiss the action, Letter" with prejudice, by the close of business on April 19, 2018 (the "Demand Letter"). (Id. ¶ 5) 1 Notably, Plaintiff's counsel waited a full month to execute the stipulation after verbally agreeing to the extension. 1 152478.00601/107146388v. 1 2 of 4 FILED: KINGS COUNTY CLERK 04/23/2018 05:57 PM INDEX NO. 500534/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/23/2018 Defendants' In the April 18 email to Mr. Rebisz transmitting the Demand Letter, Defendants counsel stated that, "[u]nder the circumstances, we think it would be better for all sides to push out the response to the Complaint ... Without an extension, we would have no choice but to proceed with the motion [to dismiss] on Monday [April 23, 2018]. Please confirm your agreement to the extension." (Id. ¶ 6) On April 19, 2018, Mr. Rebisz rejected the adjournment request without addressing the Defendants' merits of the claims. (Flanders Affirm. ¶ 7) counsel offered to extend the time for Plaintiff to consider the Demand Letter to evaluate a potential withdrawal in exchange for an extension of time to answer. Plaintiff's counsel has not responded to that proposal, burdening this court with unnecessary motion practice. (Id. ¶ 8) ARGUMENT "CPLR 2004 vests the trial court with discretion to extend the time to perform any act ... shown.'" 'upon such terms as may be just and upon good cause Tewari v. Tsoutsouras, 75 N.Y.2d — 1, 11-12 (1989). In considering a motion to extend, the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, and whether the moving party was in default before seeking the extension. Id. Where, as here, the motion to extend is filed and served before the deadline sought to be extended has expired, the motion need not be accompanied by an affidavit of merit. Salzman & Salzman v. Gardiner, 100 A.D.2d 846, 846 (2d Dep't 1984). Here, because the length of the extension sought by Defendants is a mere thirty-days (30), there will be no prejudice to Plaintiff. (Flanders Affirm. ¶ 9) Further, because this motion was filed and served before the deadline sought to be extended had expired, this factor weighs in favor Defendants' N.Y.S.2d' of granting requested extension. See Bermudez v. City of New York, 254 N.Y.S.2d 2 152478.00601/107146388v. 1 3 of 4 FILED: KINGS COUNTY CLERK 04/23/2018 05:57 PM INDEX NO. 500534/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/23/2018 (" 420, 421 (1st Dep't 1964) ("Such an extension of time could have been, and unquestionably would have been granted by the court, even if refused by plaintiff, if application had been made before the expiration of the time to answer."). Defendants' Defendants request for an extension of time is supported by good cause. At this time, the evidence possessed by Defendants and their counsel indicates that the causes of action asserted by Plaintiff are both factually inaccurate and barred by the Releases. (Flanders Affirm. ¶ 9) We are still in the process of gathering and evaluating the relevant evidence, and the requested extension will afford Defendants and their counsel adequate time to complete this investigation. The requested extension will not prejudice Plaintiff in any respect. (Id.) CONCLUSION For the foregoing reasons, and in the interests of justice, Defendants respectfully request that the Court grant their Motion to Extend Time. Dated: New York, New York April 23, 2018 Respectfully submitted, BLANK ROME LLP By: /s/ Craig M. Flanders Craig M. Flanders John C. Kessler The Chrysler Building 405 Lexington Avenue New York, NY 10174-0208 Telephone: (212) 885-5000 Facsimile: (212) 885-5001 Email: CFlanders@blankrome.com JKessler@blankrome.com Attorneys for Defendants 3 152478.00601/107146388v. 1 4 of 4