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FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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323 WALL STREET OWNERS, LLC,
Plaintiff, NOTICE OF MOTION
-against- Index No: 2022-50076
BACKSTAGE STUDIO PRODUCTIONS, INC., TERRI Assigned Judge:
ROSSIN, and TREVOR DUNWORTH,
Defendants.
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ORAL ARGUMENT REQUESTED: Yes X No
S I R (S):
PLEASE TAKE NOTICE, that upon the annexed affirmation of Richard R. DuVall,
Esq., dated April 6, 2022, the exhibits annexed thereto, and the accompanying memorandum
of law, Defendants Terri Rossin and Trevor Dunworth will move this Court at the Dutchess
County Courthouse, 10 Market Street, Poughkeepsie, New York, on the 27th day of April,
2022, at 9:30 a.m. or as soon thereafter as counsel may be heard for an order dismissing the
Plaintiff’s complaint as against them, pursuant to CPLR §3211(a)(1) and (7) on the grounds
that the pleading fails to state a cause of action for which relief may be granted against them
as individuals, plus the costs and disbursements of this action, together with such other and
further relief as to the Court seems just and proper.
Pursuant to CPLR §2214(b), answering affidavits, and any notice of cross-motion,
with supporting papers, if any, are required to be served upon the undersigned at least seven
(7) days before the return date of this motion.
DATED: Poughkeepsie, New York
April 6, 2022
Yours, etc.
McCABE & MACK LLP
By:
RICHARD R. DuVALL
Attorneys for Defendants Terri Rossin and
Trevor Dunworth
63 Washington Street
P.O. Box 509
Poughkeepsie, NY 12602-0509
Tel: (845) 486-6800
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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TO: LEWIS & GREER P.C.
Attorneys for Plaintiff
510 Haight Ave.
Poughkeepsie, NY 12603
RODENHAUSEN CHALE & POLIDORO LLP
55 Chestnut Street
Rhinebeck, NY 12572
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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323 WALL STREET OWNERS, LLC,
AFFIRMATION
Plaintiff,
Index No: 2022-50076
-against-
Assigned Judge:
BACKSTAGE STUDIO PRODUCTIONS, INC., TERRI
ROSSIN, and TREVOR DUNWORTH,
Defendants.
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Richard R. DuVall, an attorney duly admitted to practice in the Courts of the
State of New York respectfully affirms the truth of the following statements under penalty of
perjury pursuant to CPLR §2106:
1. I am a member of the firm of McCabe & Mack LLP, attorneys for the
Defendants Terri Rossin and Trevor Dunworth herein and am fully familiar with all of the
prior pleadings and proceedings which have taken place in this matter. Except where
otherwise indicated, I submit this affirmation based on my own personal knowledge.
2. I make this affirmation on behalf of Defendants Terri Rossin and Trevor
Dunworth in support of their motion for the relief set forth in the accompanying notice of
motion.
3. A copy of Plaintiff’s summons and complaint herein are filed at NYSCEF Dkt.
#1 and #2.
4. Backstage Studio Productions Inc., which was until late 2020 a tenant in
possession of the premises described in the complaint, has answered. A copy of its answer is
at NYSCEF Dkt. #5.
5. A copy of the affidavit of service of the summons and complaint upon
Defendant Trevor Dunworth was filed herein at NYSCEF Dkt. #6. The affidavit attests to
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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“nail and mail” service. The affidavit of service was filed on March 2, 2022. This motion,
made prior to April 11, 2022 is timely.
6. The affidavit of service as to Defendant Terri Rossin was filed herein at
NYSCEF Dkt. #7, also attests to “nail and mail” service in Florida. That affidavit was filed
March 7, 2022. This motion, being made prior to April 16, 2022 is thus timely as to Defendant
Rossin.
7. As set forth above, Defendant Backstage Studio Productions Inc. (“BSP”), was
a tenant at the premises in question. By a Lease Modification and Assignment agreement
dated January 26, 2018, (attached as Exhibit “1” hereto), Plaintiff in this action was assigned
the lease, and simultaneously agreed that BSP had until January 1, 2021 to remove from the
premises.
8. During the term of BSP’s tenancy, Plaintiff herein filed an action in Ulster
County Supreme Court seeking a wide variety of injunctive so-called “emergency” relief. The
complaint for that Ulster County action is attached hereto as Exhibit “2”. The Stipulation of
Settlement resolving same, with the Stipulation of Discontinuance, with prejudice are attached
hereto collectively as Exhibit “3”.
9. As provided in paragraph “1” of the Stipulation of Settlement (Exhibit “3”
hereto), BSP duly removed from the premises not later than December 8, 2020.
10. The Lease Modification and Assignment (Exhibit “1” hereto) affected an
original Lease and a Lease Modification Agreement, copies of which are attached hereto as
Exhibits “4” and “5”. Notably absent from any of Lease Modification and Assignment, Lease
Modification Agreement or Lease (Exhibits “1”, “4” and “5”) is any personal guarantee or
other personal engagement by either of the individual defendants. The Lease is between
Msteri Realty Inc. and Backstage Studio Productions Inc., both corporations. The Lease
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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Modification Agreement is between 323 Wall Street LLC, a limited liability company and
Backstage Studio Productions, Inc., a corporation.
11. The 2018 Lease Modification and Assignment is between 323 Wall Street
LLC, the previous landlord, and Plaintiff herein, the assignee of 323 Wall Street LLC, as set
forth in the 2018 Lease Modification and Assignment.
12. As a result of all of the above documentary evidence, only Defendant BSP was
in possession of the premises in question.
13. The complaint herein nevertheless names two individuals claiming that they
are liable in negligence, waste, etc.
14. The complaint does not even attempt to allege facts sufficient to support
piercing of the corporate veil, nor does the complaint make any attempt to allege the
individuals’ relationships, if any, to the tenant in possession, Backstage Studio Productions,
Inc. See accompanying Memorandum of Law.
15. While the complaint alleges, erroneously, that Defendant Rossin is an officer
of BSP, even if she was, that does not make her liable for the torts or breaches of contract, if
Plaintiff could ever establish such, attributable to the corporation, whom Plaintiff clearly must
concede was the only tenant in the premises. Whatever duties BSP had to Plaintiff or its
predecessors arose out of its contractual relationship, being the Lease and its assignments and
modifications, rather than any common law duty. It was no accident that BSP, and only BSP,
was in possession. Plaintiff knew BSP was in possession, because it assumed the landlord’s
obligations under the lease as set forth in the documentary evidence attached hereto.
16. On the contrary, Plaintiff also knew that Defendants Rossin and Dunworth
were not the tenants. While they may have been associated over the years with one or more of
the previous landlords or tenants, Plaintiff does not even attempt to allege that they were
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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tenants of the Plaintiff. BSP was the tenant and it is with BSP that Plaintiff has a gripe, if any.
BSP, parenthetically, will vigorously defend any allegation that it breached any contractual or
other duty to the Plaintiff.
17. For all of the reasons set forth herein and in the accompanying memorandum
of law the complaint fails to state any cause of action against the individual defendants and
must be dismissed.
Dated: Poughkeepsie, NY
April 6, 2022
____________________________
RICHARD R. DuVALL
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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CERTIFICATION
In accordance with 22 NYCRR §202.8-b(c), I certify that this document complies
with 22 NYCRR §202.8-b(a), as it contains less than 7,000 words, exclusive of the caption
and signature block. Specifically, this document contains 865 words, as established using the
word count feature available on the word processing software used to prepare it.
RICHARD R. DuVALL
MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602
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Preview
FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -----------------------------------------------------------------------x 323 WALL STREET OWNERS, LLC, Plaintiff, NOTICE OF MOTION -against- Index No: 2022-50076 BACKSTAGE STUDIO PRODUCTIONS, INC., TERRI Assigned Judge: ROSSIN, and TREVOR DUNWORTH, Defendants. -----------------------------------------------------------------------x ORAL ARGUMENT REQUESTED: Yes X No S I R (S): PLEASE TAKE NOTICE, that upon the annexed affirmation of Richard R. DuVall, Esq., dated April 6, 2022, the exhibits annexed thereto, and the accompanying memorandum of law, Defendants Terri Rossin and Trevor Dunworth will move this Court at the Dutchess County Courthouse, 10 Market Street, Poughkeepsie, New York, on the 27th day of April, 2022, at 9:30 a.m. or as soon thereafter as counsel may be heard for an order dismissing the Plaintiff’s complaint as against them, pursuant to CPLR §3211(a)(1) and (7) on the grounds that the pleading fails to state a cause of action for which relief may be granted against them as individuals, plus the costs and disbursements of this action, together with such other and further relief as to the Court seems just and proper. Pursuant to CPLR §2214(b), answering affidavits, and any notice of cross-motion, with supporting papers, if any, are required to be served upon the undersigned at least seven (7) days before the return date of this motion. DATED: Poughkeepsie, New York April 6, 2022 Yours, etc. McCABE & MACK LLP By: RICHARD R. DuVALL Attorneys for Defendants Terri Rossin and Trevor Dunworth 63 Washington Street P.O. Box 509 Poughkeepsie, NY 12602-0509 Tel: (845) 486-6800 MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 1 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc TO: LEWIS & GREER P.C. Attorneys for Plaintiff 510 Haight Ave. Poughkeepsie, NY 12603 RODENHAUSEN CHALE & POLIDORO LLP 55 Chestnut Street Rhinebeck, NY 12572 MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 2 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -----------------------------------------------------------------------x 323 WALL STREET OWNERS, LLC, AFFIRMATION Plaintiff, Index No: 2022-50076 -against- Assigned Judge: BACKSTAGE STUDIO PRODUCTIONS, INC., TERRI ROSSIN, and TREVOR DUNWORTH, Defendants. -----------------------------------------------------------------------x Richard R. DuVall, an attorney duly admitted to practice in the Courts of the State of New York respectfully affirms the truth of the following statements under penalty of perjury pursuant to CPLR §2106: 1. I am a member of the firm of McCabe & Mack LLP, attorneys for the Defendants Terri Rossin and Trevor Dunworth herein and am fully familiar with all of the prior pleadings and proceedings which have taken place in this matter. Except where otherwise indicated, I submit this affirmation based on my own personal knowledge. 2. I make this affirmation on behalf of Defendants Terri Rossin and Trevor Dunworth in support of their motion for the relief set forth in the accompanying notice of motion. 3. A copy of Plaintiff’s summons and complaint herein are filed at NYSCEF Dkt. #1 and #2. 4. Backstage Studio Productions Inc., which was until late 2020 a tenant in possession of the premises described in the complaint, has answered. A copy of its answer is at NYSCEF Dkt. #5. 5. A copy of the affidavit of service of the summons and complaint upon Defendant Trevor Dunworth was filed herein at NYSCEF Dkt. #6. The affidavit attests to MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 3 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc “nail and mail” service. The affidavit of service was filed on March 2, 2022. This motion, made prior to April 11, 2022 is timely. 6. The affidavit of service as to Defendant Terri Rossin was filed herein at NYSCEF Dkt. #7, also attests to “nail and mail” service in Florida. That affidavit was filed March 7, 2022. This motion, being made prior to April 16, 2022 is thus timely as to Defendant Rossin. 7. As set forth above, Defendant Backstage Studio Productions Inc. (“BSP”), was a tenant at the premises in question. By a Lease Modification and Assignment agreement dated January 26, 2018, (attached as Exhibit “1” hereto), Plaintiff in this action was assigned the lease, and simultaneously agreed that BSP had until January 1, 2021 to remove from the premises. 8. During the term of BSP’s tenancy, Plaintiff herein filed an action in Ulster County Supreme Court seeking a wide variety of injunctive so-called “emergency” relief. The complaint for that Ulster County action is attached hereto as Exhibit “2”. The Stipulation of Settlement resolving same, with the Stipulation of Discontinuance, with prejudice are attached hereto collectively as Exhibit “3”. 9. As provided in paragraph “1” of the Stipulation of Settlement (Exhibit “3” hereto), BSP duly removed from the premises not later than December 8, 2020. 10. The Lease Modification and Assignment (Exhibit “1” hereto) affected an original Lease and a Lease Modification Agreement, copies of which are attached hereto as Exhibits “4” and “5”. Notably absent from any of Lease Modification and Assignment, Lease Modification Agreement or Lease (Exhibits “1”, “4” and “5”) is any personal guarantee or other personal engagement by either of the individual defendants. The Lease is between Msteri Realty Inc. and Backstage Studio Productions Inc., both corporations. The Lease MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 4 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc Modification Agreement is between 323 Wall Street LLC, a limited liability company and Backstage Studio Productions, Inc., a corporation. 11. The 2018 Lease Modification and Assignment is between 323 Wall Street LLC, the previous landlord, and Plaintiff herein, the assignee of 323 Wall Street LLC, as set forth in the 2018 Lease Modification and Assignment. 12. As a result of all of the above documentary evidence, only Defendant BSP was in possession of the premises in question. 13. The complaint herein nevertheless names two individuals claiming that they are liable in negligence, waste, etc. 14. The complaint does not even attempt to allege facts sufficient to support piercing of the corporate veil, nor does the complaint make any attempt to allege the individuals’ relationships, if any, to the tenant in possession, Backstage Studio Productions, Inc. See accompanying Memorandum of Law. 15. While the complaint alleges, erroneously, that Defendant Rossin is an officer of BSP, even if she was, that does not make her liable for the torts or breaches of contract, if Plaintiff could ever establish such, attributable to the corporation, whom Plaintiff clearly must concede was the only tenant in the premises. Whatever duties BSP had to Plaintiff or its predecessors arose out of its contractual relationship, being the Lease and its assignments and modifications, rather than any common law duty. It was no accident that BSP, and only BSP, was in possession. Plaintiff knew BSP was in possession, because it assumed the landlord’s obligations under the lease as set forth in the documentary evidence attached hereto. 16. On the contrary, Plaintiff also knew that Defendants Rossin and Dunworth were not the tenants. While they may have been associated over the years with one or more of the previous landlords or tenants, Plaintiff does not even attempt to allege that they were MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 5 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc tenants of the Plaintiff. BSP was the tenant and it is with BSP that Plaintiff has a gripe, if any. BSP, parenthetically, will vigorously defend any allegation that it breached any contractual or other duty to the Plaintiff. 17. For all of the reasons set forth herein and in the accompanying memorandum of law the complaint fails to state any cause of action against the individual defendants and must be dismissed. Dated: Poughkeepsie, NY April 6, 2022 ____________________________ RICHARD R. DuVALL MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 6 of 7 FILED: DUTCHESS COUNTY CLERK 04/06/2022 02:58 PM INDEX NO. 2022-50076 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/06/2022 17082-1/mmc CERTIFICATION In accordance with 22 NYCRR §202.8-b(c), I certify that this document complies with 22 NYCRR §202.8-b(a), as it contains less than 7,000 words, exclusive of the caption and signature block. Specifically, this document contains 865 words, as established using the word count feature available on the word processing software used to prepare it. RICHARD R. DuVALL MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602 7 of 7