Motion to Set Aside or Vacate Judgment, Default or Dismissal in University Healthy Choice Corp. v. Bronx Community College Auxiliary Enterprises Corporation, Bronx Community College Of The City University Of New York, The City Of New York| Trellis.Law

On January 18, 2022 a Motion-Secondary was filed involving a dispute between University Healthy Choice Corp., and Bronx Community College Auxiliary Enterprises Corporation, Bronx Community College Of The City University Of New York, The City Of New York, for Commercial - Other (Declaratory Judgment) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 09/23/2022 03:19 PM INDEX NO. 800821/2022E
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 09/23/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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UNIVERSITY HEALTHY CHOICE CORP.,

Plaintiff,
Index No. 800821/2022E
-against-
Mot. Seq. No. 4
BRONX COMMUNITY COLLEGE AUXILIARY
ENTERPRISES CORPORATION, BRONX
COMMUNITY COLLEGE OF THE CITY UNIVERSITY
OF NEW YORK, THE CITY OF NEW YORK,

Defendants.

----------------------------------------------------------------------- x

CITY AND COLLEGE DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFF’S MOTION TO VACATE DEFAULT JUDGMENT AND FOR RETURN
OF PROPERTY

HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the City of New York
Attorney for Defendants City of New York and
Bronx Community College of the City University
of New York
100 Church Street,
New York, New York 10007

Of Counsel:
Ashley F. Williams
Tel. (212) 356-2555
ashwilli@law.nyc.gov
Robert Funkhouser
Vijeta Jasuja

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

ARGUMENT

POINT I

PLAINTIFF FAILS TO ESTABLISH A
JUSTIFIABLE EXCUSE FOR ITS DEFAULT......................................... 4

POINT II

PLAINTIFF FAILS TO STATE A MERITORIOUS
CAUSE OF ACTION ................................................................................. 7

A. The Court Has Ruled That the Contract
Provisions Are Clear and Unambiguous and
that the Contract Terminated Pursuant to Its
Terms, Foreclosing Plaintiff’s Claims. ........................................... 7

B. Plaintiff Has Failed to Comply with the
Statutory Notice of Claim Prerequisite ........................................... 9

POINT III

PLAINTIFF’S MOTION FOR “RETURN OF
PROPERTY” IS BEYOND THE SCOPE OF THE
COMPLAINT AND IS FORECLOSED BY THE
TERMS OF THE CONTRACT ................................................................ 10

A. Plaintiff’s Proposed New Claims Lack Merit ............................... 10

B. Allowing Plaintiff to Further Delay
Resolution Will Cause Prejudice to the
College .......................................................................................... 12

CONCLUSION ............................................................................................................................. 14

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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UNIVERSITY HEALTHY CHOICE CORP.,

Defendants.

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CITY AND COLLEGE DEFENDANTS’
MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFF’S MOTION TO VACATE
DEFAULT JUDGMENT AND FOR RETURN
OF PROPERTY

PRELIMINARY STATEMENT

Defendants, the City of New York (the “City”) and Bronx Community College of

the City University of New York (the “College”) (collectively “City Defendants”) submit this

memorandum of law in opposition to Plaintiff’s motion to vacate the Court’s August 8, 2022 Order

dismissing the Complaint and the additional relief for “return of property.” As set forth below,

Plaintiff’s excuse of law office failure for not attending the scheduled oral argument is inadequate

and refuted by documentary evidence showing Plaintiff’s counsel had notice that the August 8 oral

argument was to be in person. Moreover, because Plaintiff’s claims demonstrably lack merit as

established by the Court’s prior decision denying injunctive relief, there is no reason to vacate the

dismissal Order. In addition, prolonging this action will prejudice the College by disrupting its

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new food service vendor’s operation of the cafeteria, a factor that also weighs heavily against

vacating the order.

To the extent that the Court entertains Plaintiff’s motion regarding “return of

property”—a request not made in its Complaint—the plain terms of the Contract demonstrate that

the property belongs to the College.

STATEMENT OF FACTS

The relevant facts are set forth in the accompanying Affirmations of Ashley

Williams and of Susan Fiore, and are summarized here for the convenience of the Court.

By written agreement dated March 11, 2011, Plaintiff University Healthy Choice

Corp. (“Plaintiff” or “UHCC”) and the Defendant, Bronx Community College Auxiliary

Enterprises Corporation (the “Corporation”), entered into a Food Service Operations Contract (the

“Contract”). The Contract granted Plaintiff a limited license to provide food and beverages to the

College at designated Food Service Locations, as well as to provide catering. (Contract § 2 and

Appendix A). The term of the Contract was specified to be from March 1, 2011 to June 30, 2021.

Id. § 3.1. The Contract expressly provides that UHCC only has a revocable license to use the

Cafeteria and other Food Service Locations which automatically terminated upon expiration or

termination of the Contract. Pursuant to its terms, the Contract expired on June 30, 2021.

On January 18, 2022, Plaintiff filed an order to show cause seeking "emergency"

relief in the form of a mandatory injunction. The Summons and Complaint were included as an

exhibit to the order to show cause, and seeks declaratory relief, monetary damages, a permanent

injunction, and costs and legal fees. There is no reference in the Complaint to any property claims

by Plaintiff and no request for any “return of property.” On January 25, 2022, Plaintiff’s Order to

Show Cause was entered ex parte. On February 18, 2022, the City moved to dismiss the complaint

pursuant to CPLR 3211 (a)(1), (2), (5) and (7) for lack of subject matter jurisdiction, for failure to
2

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state a cause of action against the City and College and because Plaintiff’s claims are barred and

refuted by documentary evidence in the form of the Contract.1

Defendants opposed the Order to Show Cause and by decision, on March 30, 2022,

this Court vacated the TRO and denied Plaintiff’s request for preliminary injunction and agreed

with the City Defendants’ arguments that based on the plain and unambiguous terms of the

Contract, it expired on June 30, 2021 and Plaintiff only had a license terminable at will prior its

expiration.

On April 1, 2021, Plaintiff filed its Opposition to City Defendants’ Motion to

Dismiss and a Cross-Motion to file a late notice of claim. On April 11, 2022, City Defendants filed

its Reply and Opposition to Plaintiff’s Cross-Motion.

The motions were returnable before Justice Guzman on June 27, 2022 and were

subsequently adjourned by the Court to August 8, 2022. The correspondence adjourning the

conference was emailed to Plaintiff’s counsel and specified that the adjourned date would be “in-

person appearance.” City Defendants’ counsel made an in-person appearance on the return date as

did counsel for the Corporation. Plaintiff’s counsel did not appear in Court on the return date. In a

Decision and Order dated August 8, 2022, Justice Guzman granted the Defendants’ motions to

dismiss the complaint on default. The City served the Order with Notice of Entry on Plaintiff on

or about August 16, 2022.

Plaintiff now moves to vacate the Court’s order dismissing Plaintiff’s complaint.

Plaintiff’s counsel argues her default should be excused as law office failure, because the return

date was erroneously calendared, and she claims she had received no notice of the motion being

scheduled for oral argument on August 8, 2022. Ms. Broumand also argues that Plaintiff has a

1
The Corporation, represented by separate counsel, also moved to dismiss the complaint.

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meritorious claim to the motion to dismiss. Plaintiff’s Motion also asserts new claims for the

“return of property.” Plaintiff’s motion should be denied because the default was not excusable,

and because Plaintiff’s patently meritless claims were already considered by this Court and the

Court found them unavailing. Plaintiff’s proposed new claims are out of the scope of the Complaint

and are also without merit. Furthermore, allowing Plaintiff to further delay resolution will cause

prejudice to the College.

ARGUMENT

POINT I

PLAINTIFF FAILS TO ESTABLISH A
JUSTIFIABLE EXCUSE FOR ITS DEFAULT

CPLR Rule 5015(a) (1) provides, in pertinent part:

The court which rendered a judgment or order may
relieve a party from it upon such terms as may be
just, on motion of any interested person with such
notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within
one year after service of a copy of the judgment or
order with written notice of its entry upon the moving
party, or, if the moving party has entered the
judgment or order, within one year after such entry;

See also 38 Holding Corp. v. the City of New York, 179 A.D.2d 486, 487 (1st Dep’t 1992) (holding

that a motion to vacate a default order may be granted if the movant establishes that his default

was excusable). Although the Court may exercise its discretion to excuse a default resulting from

law office failure (see CPLR § 2005), unsubstantiated allegations and conclusory or vague reasons

for a default do not constitute a reasonable excuse for default and as such, are insufficient bases

for vacatur. See Pawnee Leasing Corp. v. Esquivel, 2020 N.Y. Misc. LEXIS 7719 *6 (Sup. Ct.

Bronx Cnty. Aug. 19, 2020) [attached as Exhibit to the Williams Aff.]; Galaxy Gen. Contr.

Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790 (1st Dep’t 2012); Pichardo-Garcia v.

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Josephine’s Spa Corp., 91 A.D.3d 413, 414 (1st Dep’t 2012); Sloan v. Abdelqader, 2020 N.Y.

Misc. LEXIS 17937 *2 (Sup. Ct. Bronx. Cnty. May 12, 2020); Tandy Computer Leasing v. Video

X Home Library, 124 A.D.2d 530, 531 (1st Dep’t 1986) (holding that “[a]n allegation without any

supporting facts to explain and justify the law office failure would be insufficient to establish

excusable default.”). Counsel must present “supporting facts in evidentiary form sufficient to

justify the default via an affirmation containing a detailed explanation of the oversights.” Escobar

v. Koeppel Volkswagen, Inc. Used Cars, 10 Misc.3d 127(A), 127A (N.Y. App. Term, 2nd Dep’t

2005) (internal citations omitted).

Here, Ms. Broumand does not deny receiving the City’s motion to dismiss. Rather,

Ms. Broumand states that she failed to appear on the August 8, 2022 return date of the motion

“[d]ue to law office failure, the date was erroneously calendared as “On Submission” based on E-

Track” and “[she] cannot find any indication that [she] received notice of the motion being

scheduled for oral argument on August 8, 2022.” See Affirmation of Heidi Broumand in support

of the motion (“Broumand Aff.”), ¶¶ 16, 20. The instant facts are essentially on point with Pawnee

Leasing Corp. v. Esquivel, where plaintiff argued that counsel’s failure to appear for an oral

argument was due to failure of the New York State Unified Court System, USC, E-Courts System

and United Lawyer Service to notify him of the rescheduled date. In Pawnee, this Court denied

plaintiff’s motion to vacate a default judgment because plaintiff failed to provide any documentary

evidence supporting his claim that he never received notice of the adjourned return date and

documentary evidence refuted plaintiff’s claims that he had no notice of the adjourned return date.

This Court held that plaintiff failed to provide a reasonable excuse for his failure to “call the Court

or Justice Guzman’s part or chambers to clarify any misgivings about the progress of their own

motions or to make themselves aware of all necessary court appearances.” Ms. Broumand’s

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affirmation indicating that she was not aware of the appearance for oral argument, much like the

affirmation of Plaintiff’s counsel in Pawnee Leasing Corp v. Equivel, does not suffice as a

sufficient excuse to warrant vacating the default Order.

In any event, the premise of Plaintiff’s argument—that Plaintiff’s counsel did not

receive notice that the adjourned date was in-person—is wrong. On June 24, 2022, Ms. Broumand

received direct notice of the August 8, 2022 return date and that it would be an in-person argument.

Ms. Broumand was copied on email correspondence between the City Defendants’ counsel and

the Part Clerk, Donald Tong regarding the original return date, June 27, 2022. Ms. Broumand was

also forwarded Mr. Tong’s June 24, 2022, email, in which Mr. Tong, stated “[y]our case has been

adjourned to 08/08/2022 for in person appearance” (emphasis added). See Williams Aff., Exhibit

B. Additionally, on June 27, 2022, E-Track sent out an email to the parties which annotated the

changes from the last update for this case in red ink and listed August 8, 2022 at 9:32 AM as the

“Future Appearance Date.” See Williams Aff., Exhibit C. Accordingly, there is no excuse for

Plaintiff’s default. See Amir M.C.W. v. 2342, Inc., 126 A.D.3d 453 (1st Dep’t 2015) (denying

defendant’s motion to vacate the default judgment where “defendant’s conclusory assertion that

its failure to appear was due to non-receipt of the October 2011 order fails to rebut the presumption

that plaintiff’s attorney properly served the order, and that it was received.”).

Ms. Broumand’s allegation that she mis-calendared the return date of the City’s

motion to dismiss does not establish a reasonable excuse for failing to appear on the return date as

she was afforded direct notice of the adjourned return date and that it was an in-person argument

in two separate ways from different parties. Accordingly, Plaintiff’s motion to vacate the Court’s

Order of August 8, 2022 should be denied.

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POINT II

PLAINTIFF FAILS TO STATE A
MERITORIOUS CAUSE OF ACTION

A. The Court Has Ruled That the Contract Provisions Are Clear and
Unambiguous and that the Contract Terminated Pursuant to Its Terms,
Foreclosing Plaintiff’s Claims.

Even where a party demonstrates a reasonable excuse for a default, the failure to

demonstrate a meritorious cause of action warrants denial of the motion to vacate. As a condition

precedent to granting a motion to vacate a party’s default, an affidavit of merit must show facts

establishing a meritorious cause of action or defense. Abrams v. Abrams, 56 A.D.2d 775, 775 (1st

Dep’t 1977). Conclusory allegations or facts in conclusory form in an affidavit of merit are

insufficient to demonstrate the existence of a meritorious action or defense. Here, too, Plaintiff’s

showing is inadequate.

This Court’s March 30, 2022 Decision, denying Plaintiff’s Order to Show Cause

seeking preliminary injunction demonstrates that Plaintiff’s causes of action for declaratory

judgment, damages and permanent injunction are patently meritless. First, this Court determined

that the language of the Contract is clear and unambiguous, especially with regards to the Contract

term.

Section 3 of the Contract, specifically Section 3.1, clearly states,
"The term of this Contract is 10 years and three months, beginning
on March 1, 2011 and ending on June 30, 2021." (NYSCEF Doc.
No. 2, P. 3).…The scope and term of the Contract are quite clear:
Plaintiff was granted a license to operate on BCC’s campus for a
period of 10 years, three months beginning March 1, 2011…. The
Contract language clearly states that any such renewal is at BCC's
best interest and is not guaranteed. (See, Contract Section 3.2).
(emphasis added) (NYSCEF Doc. No. 45 pgs. 5-6).

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Moreover, this Court recognized that, despite Plaintiff’s claims that he was

“illegally evict[ed],” the Contract did not confer any property rights or tenancy in the Food Service

Locations on to Plaintiff. (NYSCEF Doc. NO. 42 ¶ 12).

Plaintiff has not established a likelihood of success on the merits;
had the premises been subject to a lease and not a license, Plaintiff
would have had a proprietary interest in the Food Service Location
and thus would have been afforded greater rights, but this is not so.
As the Contract only provides for a license to operate food service
operations, there are no statutory or other means to apply a tolling
or extension of the Contract. (NYSCEF Doc. No. 45 pgs. 7-8).

Furthermore, this Court considered and upheld the validity of the Contract’s merger

clause:

Plaintiff alleges that they were granted a 2-year written extension,
but no extension has been proffered as proof. Section 19.6 of the
Contract therefore controls the parameters of the Contract, in that
the Contract as written and provided to the Court supersedes all
other agreements and constitutes the entirety of the agreement
between the parties. Id. at pg. 6.

Therefore, Plaintiff’s unsupported claim that there “[s]everal agreements were

made throughout the years with the Defendants to modify the Agreement, most if not all were not

in writing signed by both parties” is easily refuted by the unambiguous provisions of the Contract

and are therefore patently meritless. (NYSCEF Doc. NO. 42 ¶ 9). Plaintiff has not and cannot

provide any documentary evidence supporting its claims. Furthermore, this Court has already

examined Plaintiff’s arguments for damages and determined that “[t]here is nothing in the

licensing Contract that afforded the Plaintiff the ability to recover the funds invested. As such,

Plaintiff's argument that [UHCC] is entitled to a license extension to recover investments that they

were contractually obligated to make pursuant to the licensing agreement is without merit.” Id. at

pg. 7. Finally, this Court considered the Contract’s suspension and termination clauses and

determined that:

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[T]he Food Services Locations at Defendants' campus were thus
rendered unusable from the period of March 18, 2020, through the
end of the Contract on June 30, 2021, as there was no in-person
dining for that period, and had the Contract not naturally expired on
June 30, 2021, the Defendants would have been within their rights
to terminate the Contract pursuant to their termination clause. Id. at
Pg. 6.

The Court agreed with the City Defendants’ arguments that the College acted

within its rights under the Contract and as the lawful owner of the Food Service Locations in

suspending and upholding the natural termination of the Contract. Accordingly, Plaintiff’s motion

to vacate the Court’s Order of August 8, 2022 should be denied as Plaintiff’s claims are meritless.

B. Plaintiff Has Failed to Comply with the Statutory Notice of Claim Prerequisite

By statute, a plaintiff may not maintain any cause of action against the College or

the City unless it serves a notice of claim on CUNY or the City Comptroller, respectively, for

adjustment within 90 days of the events giving rise to the claim. Education Law § 6224 (2); General

Municipal Law § 50-e. Any complaint that does not specifically allege the service of such a notice

is subject to dismissal. Education Law § 6224 (2); New York City Administrative Code § 7-201(a).

Here, Plaintiff’s Complaint does not allege any service of a notice of claim on either

the College or the City. By failing to comply with statutory notice of claim requirements, which

are a mandatory condition precedent to suit, Plaintiff has deprived this Court of subject matter

jurisdiction. Furthermore, Plaintiff’s Complaint fails to assert a single viable cause of action

against the City as a matter of law. Therefore, leave to serve a late notice of claim against the City

should be denied as Plaintiff’s claims are patently meritless.

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POINT III

PLAINTIFF’S MOTION FOR “RETURN OF
PROPERTY” IS BEYOND THE SCOPE OF
THE COMPLAINT AND IS FORECLOSED BY
THE TERMS OF THE CONTRACT

A. Plaintiff’s Proposed New Claims Lack Merit

In the instant Motion to Vacate, Plaintiff attempts to assert new claims for “return

of property” without seeking leave to amend its Complaint. Plaintiff asserts that “any item

purchased AFTER the date of the agreement could not be part of the “fixed” list … if the item was

not affixed to the property … UHCC had the right to remove same.” Sohail Aff. ¶ 11.

Apart from not being part of this case, Plaintiff’s proposed new claims are largely

controverted by the terms of the Contract and therefore meritless.

First, Section 14.3, entitled “Removal of Equipment,” states:

[u]pon expiration or termination of this Contract,
Contractor must remove Contractor Property (except
that provided pursuant to the Capital Improvements
and Furnishing Plan) from the College premises
within ten Days of the date of expiration or notice of
termination …. Such Contractor Property not
removed from College campus will be deemed
abandoned.

Shortly after the Contract expired by its terms on June 30, 2021, Plaintiff was

advised by email dated August 2, 2021 of the expiration and that UHCC should remove any of its

personal property. UHCC never took any action to retrieve its property. Instead, once the campus

reopened, UHCC commenced this action and filed its Order to Show Cause by which it obtained

the ex parte TRO.

Since the Court’s March 30, 2022 Decision denying Plaintiff’s Order to Show

Cause, the College provided Plaintiff with two separate notices on April 12, 2022 and June 7, 2022

to cease food service operations, vacate the premises and remove its property from the premises.

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See Fiore Aff. Exhibit. Each notice advised Plaintiff that “[a]ny Contractor Property not removed

will be deemed abandoned.”2 See Fiore Aff. Exhibits A, B. As of June 17, 2022, Plaintiff has failed

to remove his property from the premises, therefore any remaining property on the premises is

deemed abandoned. Id.

Notwithstanding the fact that Plaintiff has abandoned its remaining property by

failing to remove it from the premises by June 17, 2022, the College is not opposed to permitting

Plaintiff to remove certain property from the premises. See Ellis Aff. ¶ . The College does not

contest that the bread slicer, merrychef, slushie machine, cappuccino maker, soup tureen, coffee

dispensers and smallware are Plaintiff’s property and does not object to Plaintiff removing these

items from the premises. However, the College does object to Plaintiff removing the Mexican

station, Hot Food station, coffee and soup tables, cash registers and table, affixed coffee machines,

Refcons and Proofer.

Section 5.15.4, entitled “Capital Improvements and Furnishing Plan,” states

“[u]pon expiration or termination of this Contract, title to all improvements made to the Food

Service Locations pursuant to the Capital Improvement and Furnishing Plan, including furnishings

and fixtures, will transfer to Corporation or College, free of liens.” Therefore, any fixed equipment

included in the original plans became property of the College at the termination of the Contract.

In the original plans, Appendix C, entitled “Contractor Property,” states “[e]quipment marked as

“Fixed” on this list will transfer to the Corporation/College at the end of this Contract.”

2
The April 12, 2022 letter to Plaintiff stated in error “Any Corporation property not removed will
be deemed abandoned,” however, consistent with the terms of the Contract, it should have read
“Any Contractor property not removed will be deemed abandoned.”

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Contrary to Plaintiff’s assertions, new items purchased after the date of the

agreement which Plaintiff used to replace the older items are considered improvements.

Accordingly, these improvements transferred to the College at the expiration of the Contract.

B. Allowing Plaintiff to Further Delay Resolution Will Cause Prejudice to the College

There is no valid basis to continue to delay resolution. Plaintiff’s contract

expired on June 30, 2021. The College has requested Plaintiff to comply with its obligations upon

termination of the Contract, including removing its property, for more than a full year. See Fiore

Aff. ¶¶ 3, 5. After the Court vacated the TRO, the College requested bids for a new food service

vendor for its Fall Semester commencing on August 25, 2022. Id. ¶ 17. The College based its

selection for a new vendor on the bidder’s rank and the bid amount. Plaintiff placed a bid for the

contract; however, Plaintiff’s bid was not the lowest bid presented to the College. The College

accepted a bid from food service vendor, A La Carte, a Minority and Women-Owned Business

Enterprise (“MWBE”), to conduct food service operations on the College’s campus. Id. ¶ 17. Since

the beginning of the Fall semester, A La Carte has been operating on the College campus and

servicing the College’s students, faculty, staff and guest and using the College’s equipment in the

cafeteria. Id. ¶ 18. Allowing Plaintiff another opportunity to contest the expiration or to seek to

remove College property from the College will disrupt the College’s new food service vendor’s

operations to the detriment of the students, faculty, staff and guests that rely on the cafeteria.

Moreover, Plaintiff’s conduct in this matter has already led to significant and

prejudicial delays in the resolution of this matter. For an initial matter, Section 5.8.3, entitled,

“Corporation Property,” states “Contractor must not remove Corporation Property from the Food

Service Locations. Upon termination or expiration of this Contract, the Contractor must return

Corporation Property in the same condition as received, reasonable wear and tear excepted.”

Notwithstanding these clear terms, Plaintiff attempted to remove the College’s equipment from
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the Premises and subsequently damaged the College’s equipment. Specifically, a counter/food

station was cracked and damaged in UHCC’s attempt’s to remove it. The counter/food station is

affixed to millwork and the floor of the food services area. Likewise the removal of the Mexican

Food Station and Hot Food Station would also result in damage as both are affixed to millwork

and the floor of the food service area.

Furthermore, Plaintiff was required under the Contract to provide monthly cleaning

for the grease traps at its expense. Contract § 5.11 (H). After UHCC’s departure from the College,

it became apparent that UHCC did not maintain the grease traps as required. Upon inspection,

fifteen buckets of grease were removed from the grease traps. The College was forced to dispose

of the grease, which required a special disposal process and for which the College incurred

substantial costs. Additionally, the Contract required UHCC to pay 8% of gross sales with a

minimum annual payment of $160,000. Contract § 6.1. Despite continuing to use the Cafeteria

since the expiration of the Contract and during the period the ex parte TRO was in effect and for

months after, UHCC has not made any payments during that time period. Plaintiff has attempted

to overwrite the terms of the Contract and disrupt the food service operations on the College’s

campus at every turn.

Long past the expiration of the Contract and after the College’s multiple

requests for Plaintiff to remove its property from the premises, this matter cannot be delayed

further as a result of Plaintiff’s specious arguments.

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CONCLUSION

For all the reasons set forth above, Plaintiff’s motion to vacate the Court’s August

8, 2022 Order and for return of property should be denied in its entirety.

Dated: New York, New York
September 23, 2022

By:
Ashley F. Williams
Tel. (212) 356-2555
ashwilli@law.nyc.gov
Robert Funkhouser
Vijeta Jasuja

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SECTION 202.8-B CERTIFICATION

I certify that the total count of this Memorandum of Law is 4076, which complies
with Section 202.8-b of the Uniform Civil Rules For The Supreme Court & The County Court. I
relied on the word count of the word-processing system used to prepare the document.

Dated: New York, New York
September 23, 2022

Ashley F. Williams
Assistant Corporation Counsel

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Case Info

Judge

Wilma Guzman Track Judge’s New Case

Case No.

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Document Filed Date

September 23, 2022

Case Filing Date

January 18, 2022

County

Parties

(2022-005354) Attorney for the Defendant
Bronx Community College Auxiliary Enterprises Corporation Defendant
Bronx Community College of the City University of New York Defendant
BROUMAND, HEDDYEH P Attorney for the Plaintiff
DONATO, DOMINIC MICHAEL Attorney for the Defendant
DOYLE, MICHAEL BARTHOLOMEW Attorney for the Plaintiff
MASTERS, WESLEY AUSTIN Attorney for the Plaintiff
MODICA, ROBERT Attorney for the Defendant
The City of New York Defendant
University Healthy Choice Corp. Plaintiff
SUSAN FIORE Attorney
ASHLEY WILLIAMS Attorney

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Motion-Secondary: University Healthy Choice Corp. v. Bronx Community College Auxiliary Enterprises Corporation, Bronx Community College Of The City University Of New York, The City Of New York

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