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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
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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.
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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.”
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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
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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.)
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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
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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
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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
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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
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