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  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
  • Cun Ju Lin INDIVIDUALLY, Cun Ju Lin DERIVATIVELY ON BEHALF OF AN HUI REALTY, LLC v. Xi Hui Wu a/k/a STEVEN WUCommercial Division document preview
						
                                

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FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X DE-EVONI FRAICHEUR CRUISES, LLC, Index No.: 515086/2019 Plaintiff, AFFIRMATION IN OPPOSITION -against- Mot. Seq. No.: 2 JDJ LLC, and JAMES PLEDGER, Assigned Justice: Defendants. Hon. Leon Ruchelsman, J.S.C. -----------------------------------------------------------------------X Thomas J. Frank, an attorney duly licensed to practice law in the Courts of the State of New York, hereby affirms under penalty of perjury, pursuant to CPLR 2106: 1. I am a partner with The Frank Law Firm P.C., counsel for defendants JDJ LLC and James Pledger (Defendant) in this action, and I am fully familiar with the proceedings had herein. I make this affirmation in opposition to plaintiff De- Evoni Fraicheur Cruises, LLC’s (Plaintiff) motion seeking to strike the Defendants’ answer (Seq. No. 2) (Motion). PRELIMINARY STATEMENT 2. For the most part, the relief sought by Plaintiff’s Motion has been resolved by the So Ordered Stipulation entered on June 30, 2022 (Dkt 70). 1,2 The balance of the Motion seeks to strike the Defendants’ answer for Defendants’ alleged 1 Docket entries in the New York State Courts Electronic Filing system (NYSCEF) shall be referred to as “Dkt”. 2 Pursuant to CPLR 2214(c), “in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.” 1 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 failure to turnover certain personal property to Plaintiff in accordance with this Court’s Order dated August 14, 2019 and entered on September 4, 2019 (Dkt 49). Defendants now oppose. 3. Granting the remaining relief sought would provide Plaintiff with an unearned seven-figure windfall because of an alleged failure by Defendants to turnover miscellaneous personal property aggregating no more than $10,000 in value which Plaintiff itself failed to collect after given reasonable opportunities to do so (See Affidavit of James Pledger, sworn to on April 20, 2022 [Pledger Aff.], ¶¶9–13). 4. As a result, the remaining relief in the Motion should be denied. RELEVANT PROCEDURAL BACKGROUND 5. On July 10, 2019, Plaintiff commenced this action through the filing of the verified complaint (Complaint) with the Kings County Clerk’s Office that asserts causes of action sounding in conversion, replevin, unjust enrichment, fraud, breach of contract, breach of the covenant of good faith and fair dealing, declaratory relief, and for a preliminary injunction (Dkt 1). 6. The facts of the case center around a Bare Boat Charter/Lease Purchase Agreement (Agreement) entered into by Plaintiff and Defendant JDJ LLC on or about November 24, 2017 for the lease of a 1987 built, steel hulled, passenger vessel, Official No. USCG Doc. No. 909958, Call Sign: WDC6279, Vessel Name: CAPT. JP II (Vessel) (Dkt 2). 7. Simultaneously with the filing of the Complaint, Plaintiff filed an Order to Show Cause (Seq. No. 1) seeking, inter alia: (i) a preliminary injunction, pursuant 2 2 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 to CPLR 6301, to enjoin Defendants from transferring, selling or assigning the Vessel; (ii) an order of seizure directing the sheriff to seize the Vessel and miscellaneous personal property; and (iii) temporary relief pending the hearing and determination of the motion that would preclude the sale of the Vessel and directing the sheriff to seize the Vessel and personal property (Dkt 12). 8. On July 12, 2019, this Court signed the Order to Show Cause but struck all temporary relief (Dkt 26). 9. Following opposition by Defendants, this Court issued a Decision and Order (Seq. No. 1) dated August 14, 2019 and entered on September 4, 2019 (Order) (Dkt 49). 10. In the Order, this Court found that Plaintiff was in default under the Agreement due to the United States Coast Guard altering the Certificate of Inspection due to mechanical and electrical deficiencies (Id.) The Order further states: “there can be no dispute that a default occurred upon the issuance of the Coast Guard Inspection report, therefore, the plaintiff’s arguments they have a superior possessory interest in the boat itself are rejected” (Id.) 11. The Order held that Plaintiff’s relief seeking to reinstate the Agreement is denied, and directed Defendants to return any personal effects remaining from Plaintiff’s possession of the Vessel (Id.) 3 3 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 ARGUMENT 12. Defendants’ efforts to return Plaintiff’s personal property is well- established dating back to 2018. 13. In its Order to Show Cause, Plaintiff asserted that the following property remained on the Vessel at the time of seizure: (i) two (2) portable bars; (ii) two hundred (200) folding chairs; (iii) surveillance camera set-up, including wiring; (iv) forty (40) cameras and monitoring systems; and (v) an ATM Machine Model #2700 6k Dispenser, Serial number YB57201012 (Personal Property) (Dkt 26). 14. On October 2, 2019, Defendants’ prior counsel advised counsel for Plaintiff that the only item in Defendants’ possession was the ATM Machine (Dkt 69).The October 2nd correspondence also detailed that representatives of Plaintiff visited the Vessel post-seizure on two occasions in 2018 but refused to take any of the Personal Property, except for the DVR recorder for the security systems (Id.; see Pledger Aff., ¶¶9–13). 15. Again, on January 10, 2020, Defendants’ prior counsel advised counsel for Plaintiff that the ATM Machine was still in its possession waiting to be picked-up by Plaintiff’s representatives. Plaintiff advised that it would pick-up this item but then failed to do so (Dkt 68; see Pledger Aff., ¶13). 16. So, dating back to 2018, Plaintiff was given numerous opportunities to pick-up any of the Personal Property in Defendants’ possession, however, Plaintiff never did so. 17. Now, despite completely ignoring the ability to obtain these items, Plaintiff asks this Court to take the drastic act of striking Defendants’ answer, even 4 4 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 though Defendants took all reasonable efforts to return the Personal Property in its possession to Plaintiff (Dkt 68–69, see Pledger Aff., ¶¶9–13). 18. No legal authority is submitted in support of this relief, and CPLR 3216 has been rendered inapplicable as any dispute pertaining to discovery has been resolved (Dkt 70; see Dkt 59, ¶¶37–41). 19. Presumably, Plaintiff seeks to strike Defendants’ answer by way of civil contempt pursuant to Judiciary Law § 753(A)(3). In order to prevail on a motion for civil contempt, the movant must establish by clear and convincing evidence that: (i) there was a lawful order of the court, expressing a clear mandate; (ii) the order was disobeyed; (iii) the party to be held in contempt had knowledge of the court’s order; and (iv) the movant was prejudiced by the offending conduct (El-Dehdan v El- Dehdan, 26 NY3d 19, 41 NE3d 340 [2015]). 20. Here, Plaintiff has failed to prove by clear and convincing evidence that Defendants failed to comply with the Order, and that Plaintiff has been prejudiced by that failure. 21. It is undisputed that Defendants have been attempting to get Plaintiff to retake possession of the Personal Property in Defendants’ possession since 2018 (Dkt 68–69, see Pledger Aff., ¶¶9–13). Therefore, Defendants complied with the Order to the best of their ability. 22. Also, Plaintiff has not been prejudiced by this alleged failure to comply with the Order. Indeed, Plaintiff can pursue monetary damages for any of the 5 5 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 Personal Property that Defendants allegedly failed to turnover under the Order, since none of the Personal Property items are unique in any quantifiable way. 23. By granting the drastic remedy of striking Defendants’ answer would, in effect, reward Plaintiff with a seven-figure judgment because Plaintiff failed to retake possession of its ATM machine. Even assuming Defendants failed to comply with the Order—which is contradicted by the record—such a punishment would drastically outweigh any monetary prejudice sustained by the Plaintiff. 3 24. Such a result is unjust and unsupported by the record and relevant law. * * * * * WHEREFORE, Defendants respectfully request an Order denying the remaining requests for relief in Plaintiff’s Motion. Dated: August 3, 2022 Old Brookville, New York THE FRANK LAW FIRM P.C. Counsel for Defendants By: s/Thomas J. Frank Thomas J. Frank, Esq. 333 Glen Head Road, Suite 145 Old Brookville, New York 11545 P: (516) 246-5577 F: (516) 246-5597 (For court use only) Em: thomas@frankfirmpc.com 3 https://www.nasatm.com/collections/stand-alone-atms 6 6 of 7 FILED: KINGS COUNTY CLERK 08/04/2022 12:06 AM INDEX NO. 515086/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/04/2022 CERTIFICATION OF COMPLIANCE Thomas J. Frank, an attorney duly licensed to practice law in the Courts of the State of New York, hereby affirms under the penalty of perjury, pursuant to CPLR 2106: 1. Defendants’ AFFIRMATION IN OPPOSITION follows the word count limit set forth in 22 N.Y.C.R.R. § 202.8-b as it contains 1,195 words. Dated: August 3, 2022 Old Brookville, New York /s/ THOMAS J. FRANK 7 7 of 7