Preview
FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020
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EXHIBIT BBB
FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020
SUPREME COURT OF THE STATE OF NEW YORK:
COUNTY OF SUFFOLK:
----------------------------------------- X
D&L Realty Partners, LLC,
Plaintiff, INDEX #619585/2018
REPLY AFFIRMATION
-against- (Hon. J. Pastoressa)
Eugene Hubbard,
Defendant.
------------- -----------------------------------------------X
Richard T. Haefeli, an attorney at law duly admitted to practice in the Courts of the State
of New York, affirms the following under penalty of perjury:
1. That your affiant is the attorney for the Defendant and as such submits this
affirmation in reply to the answering affirmation of the Plaintiff.
2. The Plaintiff in its answering affirmation refers to property record cards
maintained by the Town of Southampton to establish that the property that the Plaintiff
claims was the subject of the contract is a separate parcel of property.
3. The determination as to the number of lots is not made by the Town of
Southampton; itis made by the Village of Westhampton Beach and the Village Zoning
Board of Appeals determined in 2014 that there is only a single lot. (See Defendant's
Exhibit L)
4, In addition, the configuration of the lots shown on the tax map (See Defendant's
Exhibit A attached) is not the configuration of the lots that were approved by the
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Planning Board in 1981, rather the configuration of tax Lot 12.02, is the same
configuration as is shown on the Plaintiff's 2013 survey (See Plaintiff's Exhibit D) and
this configuration is not the configuration of the 2 lots approved by the Planning Board
in 1981. (See Defendant's Exhibit D)
5. The Plaintiff makes the claim throughout itsmemo of law and specifically on
pages 1, 2, 9 and 10 that the Defendant owned the property that was the subject of the
contract.
6. The Defendant never admitted that he owned the property that the Plaintiff claims
is the subject of the contract, which property is shown on the Plaintiff's 2013 survey.
(See Plaintiff's Exhibit D)
7. The property that the Defendant claims that he owns was designated as Parcel B
on the 1981 subdivision map (see Defendant's Exhibit D) which was devised to him in
his father's 1984 will. (See Defendant's Exhibit J)
8. While the Plaintiff claims that the zoning issues do not prevent the Defendant
from transf rring titleto him, this claim totally ignores the July, 17, 2014 determination
of the Zoning Board (See Defendant's Exhibit L) which found that 2 lots had not been
created and there is not a separate lot in existence.
9. Based upon res judicata and statute of limitations the Plaintiff cannot dispute the
determination that there is only a single lot in existence.
10. Since there is only a single lot in existence, the provisions of the Zoning Code,
reinforced by the Village Law, prohibit the transfer of the property without approval
from the Plamling Board and any such transfer would be illegal and could result in fines,
penalties and litigation by the Village.
2
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11. The Plaintiff's complaint is nothing more than a request to have the Court allow
the transfer of part of the property to the Plaintiff without Planning Board approval in
violation of § 197-66 of the Village Code.
12. The transfer of the property would also result in a violation of §197-5 (1) of the
Village Code which provides "no building, structure or land [emphasis added] shall
hereafter be used or occupied ... unless in conformity with the regulations herein
located."
specified for the district in which itis (See Defendant's Exhibit B attached).
13. Any transfer of the property at this time without Planning Board approval would
result in a violation of § 197-5(1) of the Village Code and would prevent the Defendant
from renting the remaining property to an affiliate of the Plaintiff.
14. On page 15 of itsmemorandum the Plaintiff states in reference to the penalty
"
provisions set forth in §l97-83 (See Defendant's Exhibit S) ...the section does not
..."
impose a fine for the mere transfer of an interest in non-conforming property This is
a total misstatement of the law.
15. The transfer of the property would not be the transfer of a nonconforming lot
since a nonconforming lot is a lot that was in existence prior to the adoption of the
Zoning Code in 1953. ( Matter of East End Holding, LLC v Village of Southampton,
Zoning Bd. of Appeals, 135 A.D. 3d 860)
16. The transfer of the lot at this time would be the transfer of a lot that was not in
existence in 1953, the year the Westhampton Beach Zoning Code was adopted, and
therefore itwould be an illegal lotwhich did not receive Planning Board approval and
therefore the provisions of § 197-83 would apply to the Defendant not only because the
3
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Defendant transferred the property but also because the Defendant had an ownership
interest in the remainder of the property.
17. On page 6 of the Plaintiff's memorandum the Plaintiff states that the condition of
municipal approval set forth in paragraph 10 of the contract (See Plaintiff Exhibit G) was
for the benefit of the Plaintiff only.
18. This statement is inaccurate since the Defendant retained an interest in the
balance of the property and the Defendant was required to ensure that the municipal
approvals applied to all of the property including the balãñce of the property; therefore
this provision applied to the Defendant and at no time did the Defendant waive this
provision.
19. Plaintiff's claim on page 17 of its memorandum that its letter dated August 22,
2019 (See Plaintiff's Exhibit I) established a law day entitling itto commence an action
for specific performance is not supported by the law.
20. To establish a time of essence closing requires that the notice set forth the date
and place of closing and that if the party does not perform Ïtwill be considered in
default. (Point Holding v Crittenden, 119 A D.2d 918, 919)
21. The letter of August 22, 2019 does not state that the failure to appear and close
title will result in the default; therefore, itis not a time of essence letter and cannot form
the basis for the Plaintiff's specific performance action.
22. As stated in the original papers, the contract fails to specify the property that was
the subject of the contract and as a result itis void pursuant to GOL§5 - 703 [2]
23. The Suffolk County tax map which is attached as Exhibit A to this affirmation
clearly establishes that the description set forth is not the description of the property
4
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Defendant transferred the property but also because the Defendant had an ownership
interest in the remainder of the property.
17. On page 6 of the Plaintiff's memorandum the Plaintiff states that the condition of
municipal approval set forth in paragraph 10 of the contract (See Plaintiff Exhibit G) was
for the benefit of the Plaintiff only.
18. This statement is inaccurate since the Defendant retained an interest in the
balance of the property and the Defendant was required to ensure that the municipal
approvals applied to allof the property including the balance of the property; therefore
this provision applied to the Defendant and at no time did the Defendant waive this
provision.
19. Plaintiff's claim on page 17 of itsmemorandum that its letter dated August 22,
2019 (See Plaintiff's Exhibit I) established a law day entitling itto commence an action
for specific performance is not supported by the law.
20. To establish a time of essence closing requires that the notice set forth the date
and place of closing and that if the party does not perform itwill be considered in
default. (Point Holding v Crittenden, 119 AD.2d 918, 919)
21. The letter of August 22, 2019 does not state that the failure to appear and close
title will result in the default; therefore, itis not a time of essence letter and cannot form
the basis for the Plaintiff's specific performance action.
22. As stated in the original papers, the contract fails to specify the property that was
the subject of the contract and as a result itis void pursuant to GOL§5 - 703 [2]
23. The Suffolk County tax map which is attached as Exhibit A to this affirmation
clearly establishes that the description set forth is not the description of the property
4
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owned by the Defendant at the time the contract was executed therefore the tax map
description of the property is insufficient to meet the requirements of the Statute of
Frauds.
24. While the Plaintiff claims that itwas not required to give written notice of its
waiver, paragraph 28 (b) of the contract specifically requires written notice. Since the
Plaintiff claims that it iswaiving the provisions of the contract, such waiver requires
written notice and the Plaintiff's claim that itis not required to give written notice has no
basis in fact or law,
25. As to the Plaintiff's second cause of action, the Defendant has never stated that if
the Court finds that the Plaintiff is not entitle to specific performance of the contract and
dismisses the complaint, that Plaintiff is not entitled to a return of the down payment.
26. If the Court dismisses the complaint and the contract is no longer in effect, the
Plaintiff is entitled to a return of the down payment from the attorney holding the money
in escrow.
Wherefore itis respectfully requested that the Plaintiff's Motion for Summary
Judgment be in all respects denied, that the Plaintiff's request for damages relating to the
down payment be denied, that the Notice of Pendency be discharged, that the complaint
be dismissed and that the Defendant's Cross-Motion for Summary Judgment rescinding
the contract be in all respects granted,
Dated: May 20, 2019.
Richard T. Haefeli
5
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WORD COUNT CERTIFICATION
I certify that pursuant to Rule 17 of the Rules of the Commercial Division of the
Supreme Court (22 NYCRR §202.70), and based on the word-counting function of my
word processing system (Microsoft Word 2018), this document complies with the 7000
word limitation rule since the total number of words in this document, inclusive of point
headings and footnote, and exclusive of captions, table of contents, table of authorities,
and signature line or any authorized addendum containing statutes, rules and regulations
is 1421.
Dated: May 20, 2019
Richard T. Haefeli
6
Related Content
in Suffolk County
Ruling
BIN YANG VS INTERINSURANCE EXACHANGE OF THE AUTOMOBILE CLUB
Jul 10, 2024 |
Echo Dawn Ryan |
23PSCV01807
Case Number:
23PSCV01807
Hearing Date:
July 10, 2024
Dept:
26
Yang v. Interinsurance Exchange of the Automobile Club, et al.
MOTION TO COMPEL RESPONSES TO INTERROGATORIES, AND REQUEST FOR SANCTIONS
(CCP §§ 2030.300, 2023.010)
TENTATIVE RULING:
Defendant Interinsurance Exchange of the Automobile Clubs (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, are
GRANTED.
PLAINTIFF BIN YANG
IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER.
PLAINTIFF BIN YANG IS ALSO
ORDERED TO PAY SANCTIONS OF $570.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER.
ANALYSIS:
On January 9, 2024, Defendant Interinsurance Exchange of the Automobile Club (Defendant) served Form Interrogatories, Set One, and Special Interrogatories on Plaintiff Bin Yang (Plaintiff). (
Motions, Vallone
Decl., Exh. 1.) Despite a meet and confer effort extending the deadline to serve verified responses without objections, Plaintiff has not served responses to the discovery. (
Id
. at ¶¶5-7 and Exh. 2.) Defendant filed the instant (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; and (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, on June 7, 2024. No oppositions have been filed to date.
Discussion
Based on Plaintiffs failure to serve initial responses to the discovery, the Motions to Compel Responses to Interrogatories, are granted. (Code Civ. Proc., § 2030.290.) There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2030.290.) Furthermore, the motion can be brought at any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2030.290.) Therefore, Defendant is entitled to an order compelling Plaintiff to serve verified responses to the interrogatories without objections.
Plaintiffs failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030 and have been properly noticed. However, the amount sought is excessive for simple and unopposed motions. Pursuant to a lodestar calculation, sanctions are awarded against Plaintiff in the amount of $570.00 based on two hours of attorney time billed at $225.00 per hour and costs of $60.00 per motion. (Motions,
Vallone
Decl., ¶¶10.)
Conclusion
Defendant Interinsurance Exchange of the Automobile Clubs (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, are
GRANTED.
PLAINTIFF BIN YANG
IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER.
PLAINTIFF BIN YANG IS ALSO
ORDERED TO PAY SANCTIONS OF $570.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER.
Moving party to give notice.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Brian Folland vs. Denna Rogers
Jul 10, 2024 |
21CECG01468
Re: Folland v. Rogers
Superior Court Case No. 21CECG01468
Hearing Date: July 10, 2024 (Dept. 501)
Motion: Plaintiff/Petitioner’s Petition to Confirm Arbitration Award
Tentative Ruling:
To grant, confirming the arbitration award in favor of plaintiff/petitioner in the
amount of $76,265 plus $435 in costs, and $14,709.74 in prejudgment interest, for a total
of $91,409.74. Plaintiff/petitioner is directed to submit a proposed judgment consistent
with the court’s ruling within 7 days of the service of the minute order.
Explanation:
Any party to an arbitration in which an award has been made may petition the
court to confirm the award. The petition shall name as respondents all parties to the
arbitration and may name as respondents any other person bound by the arbitration
award. (Code Civ. Proc., §1285.)
A petition shall: (a) set forth the substance or have attached a copy of the
agreement to arbitrate unless the petitioner denies the existence of such an agreement;
(b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of
the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.)
If a petition is duly served and filed, the court shall confirm the award as made,
whether rendered in this state or another state, unless it corrects the award and confirms
it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., §1286.)
Here, the moving papers conform to the requirements set forth in the Code of Civil
Procedure sections 1285 and 1285.4. In accordance with Code of Civil Procedure,
section 1285, petitioner names Denna Rogers as the party to be bound by the arbitration
award.
A copy of the arbitration agreement is attached to the Complaint which
commenced this action. (Compl., Exh. A.) Also, a copy of the arbitrators’ award is
attached to the Petition. (Petn., Attachment 6C.) The Petition and Notice of Hearing were
properly served on June 6, 2024 by mail. The Petition also provides that the arbitration
award was served to respondent on July 7, 2022. (Petn., Item 7.) The Petition provides that
the arbitration award is binding because more than 30 days have passed since notice of
the award was mailed, and no party filed a rejection of the award or requested for trial.
(Petn., Item 8(b).) Further, the Petition is unopposed and no evidence indicating any
application has been made to correct or vacate the award, and the statutory period for
making such application has now passed. (Code Civ. Proc., § 1288. [“A petition to
vacate an award or to correct an award shall be served and filed not later than 100 days
after the date of the service of a signed copy of the award on the petitioner.”].)
Thus, the Petition to confirm the arbitration award is granted. However,
Plaintiff/Petitioner has calculated the prejudgment interest to the date of September 17,
2024. The court calculates the prejudgment interest to be $14,709.74.1
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
1This figure is calculated using an interest rate of 10% per annum from the date the arbitration
award became binding, August 6, 2022 (30 days following the day the award was mailed) through
July 10, 2024 (the hearing date of this petition).
Ruling
Romano vs Golden State Lumber
Jul 10, 2024 |
MSC-192506
MSC-192506, Romano v. Golden State Lumber
Defendant’s unopposed Anti-SLAPP motion is DENIED. Defendant’s request for judicial notice
is GRANTED. Due to the lack of opposition, the Court’s minute order shall constitute the order of the
Court.
The Court notes that the reply brief references an opposing brief, but there has been no opposing
brief filed with the Court. Nonetheless, as explained in detail below, Defendant did not meet its burden of
showing that the action arises out of protected activity.
I. Background
On January 17, 2023, Defendant Golden State Lumber filed a limited jurisdiction collections
action in this Court against its customer Generator Joe, Inc. and its personal guarantor, Joseph Romano,
(MCV-260730) due to an unpaid credit account balance. Defendant’s complaint includes a mechanics lien
foreclosure cause of action against Generator Joe, Inc.’s property. Generator Joe, Inc. did not file an
answer to the complaint. However, Plaintiff Joseph Romano subsequently filed the instant small claims
action on March 2, 2023. The small claims action was transferred to this court, but was not consolidated
with MCV-260730.
Defendant Golden State Lumber, Inc. herein alleges that the small claims action was filed in
retaliation for Golden State not abandoning its collections action and not abandoning its mechanics lien
rights and remedies. Defendant contends that its lawsuit, service of preliminary notices in relation to the
mechanics lien, and ultimate recordation of the mechanics lien is protected activity; thus, the entire small
claims action should be stricken.
II. Analysis
A. Burdens on an Anti-SLAPP Motion
CCP § 425.16(b)(1) provides that a cause of action against a person “arising from any act of that
person in furtherance of the person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue” shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim. CCP § 425.16(e)(1) defines the foregoing phrase to include “any
written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law.” “In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is
based.” (CCP § 425.16(b)(2).)
A defendant has the initial burden to make a prima facie showing that the complaint “arises from”
her exercise of free speech or petition rights. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449 at 458-59.) “At the first step of the analysis, the defendant must make two related
showings. Comparing its statements and conduct against the statute, it must demonstrate activity
qualifying for protection. (See § 425.16, subd. (e).) And comparing that protected activity against the
complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.) If defendant meets that initial burden,
the burden shifts to the plaintiff to establish a “probability” that he will prevail on the claims which are
based on protected activity. (CCP § 425.16(b).)
To establish a “probability” of prevailing on the merits, the plaintiff must demonstrate that the
claim is both legally sufficient and supported by a prima facie showing of facts sufficient to support a
favorable judgment if the evidence submitted by the plaintiff is credited. (Navelier v. Sletten (2002) 29
Cal.4th 82, 89.) The court does not weigh credibility or comparative strength of the evidence in making
this summary judgment-like determination. (See, e.g. Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 291.) But to demonstrate a probability of prevailing on the merits, the plaintiff must produce
admissible evidence sufficient to overcome any privilege or defense that the defendant has asserted to the
claim. (See, e.g. Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In making its determination, the Court
considers the pleadings, as well as supporting and opposing affidavits. (CCP § 425.16(b).) The court
considers defendant's evidence only to determine if it defeats plaintiff's showing as a matter of law.
(Soukup v. Law Offices of Herbert Hafif, supra, at 291.) The court must accept as true the evidence
favorable to plaintiff. (Ibid.)
B. Defendant Has Not Met Its Burden to Show that Plaintiff’s Allegations Arise Out of
Protected Activity
“The defendant's burden is to identify what acts each challenged claim rests on and to show how
those acts are protected under a statutorily defined category of protected activity.” (Bonni v. St. Joseph
Health Sys. (2021) 11 Cal. 5th 995, 1009.) “‘[T]he statutory phrase ‘cause of action ... arising from’
means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act
in furtherance of the right of petition or free speech.’” (CKE Restaurants, Inc. v. Moore (2008) 159
Cal.App.4th 262, 269–70. Italics in original.) “‘In the anti-SLAPP context, the critical point is whether the
plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or
free speech.’” (Ibid. Italics in original.)
Here, Plaintiff’s allegations are as follows:
Plaintiff ordered approx [sic] $38,000 in lumber which was specificed [sic] by Plaintiff to be
redwood construction heart. Defendant delivered a large load of material, but not all that was
ordered, and on inspection Plaintiff discovered that the lumber delivered did not meet the
specifications of material ordered. Plaintiff contacted Defendant and Defendantgs [sic]
management employee agree [sic] to take the materiasl [sic] back without charge. Defendant later
claimed material was missing and demanded restocking fees and other charges. Plaintiff
demanded labor reimbursemen [sic]” [The allegations end here.]
Though Defendant claims that Plaintiff’s small claim action arises out of activity protected by the
litigation privilege, none of the allegations raised by Plaintiff involve protected activity. Defendant fails to
identify which allegations implicate such protected activity. Plaintiff does not complain of Defendant’s
act of filing its own complaint nor of Defendant’s acts in pursuing the mechanics lien. The mere timing of
the filing of the small claims action alone is not sufficient to show that the complaint arises out of
protected activity without more. The simple raising of counter allegations of breach is not sufficient to
show that the claims arise out of protected activity. Furthermore, though defendant has submitted
evidence that Plaintiff demanded in an email that the preliminary notice be dropped to avoid legal
challenge, this does not show that this small claims action arose out of protected activity because Plaintiff
does not challenge the preliminary notice. The allegations raised by Plaintiff solely involve the underlying
dispute and do not challenge Defendant’s legal actions.
The cases cited by Defendant are inapposite. For example, in CKE Restaurants, Inc. v. Moore
(2008) 159 Cal.App.4th 262, which involved a declaratory relief action seeking determination regarding
compliance with Proposition 65, “CKE's action arose entirely from the filing of the Proposition 65
notice.” (Id. at 271. Italics in original.) “‘…[W]ithout the Notice, there would have been no actual, present
controversy, and no controversy at all.’” That is not the case here as there does exist a controversy without
Defendant’s complaint and mechanic’s lien and Plaintiff’s small claims action makes no mention of
either. The case of Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th
873, involved statements made in anticipation of a lawsuit. Defendant has not identified any statements or
writing made by it that Plaintiff challenges in this small claims action. The case of Comstock v. Aber
(2012) 212 Cal.App.4th 931, involved the question of whether statements made to an HR manager could
be considered statements made in anticipation of litigation. There are no similarities between the facts of
that case and the facts of the present case.
While Defendant argues that the “gravamen” of Plaintiff’s small claims action is that “Golden
State never should have made demands on Generator Joe Inc. to satisfy its outstanding credit account
balance” and that Plaintiff filed this action only after Defendant sued to foreclose on its mechanics lien,
the California Supreme Court has “rejected the ‘gravamen’ approach in evaluating anti-SLAPP motions
directed to an entire cause of action or complaint, holding that each allegation of protected activity must
be evaluated separately.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, § 7:775 (2024); see
also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010-1011.) If the Court were to adopt the
“gravamen” approach, it would “risk saddling courts with an obligation to settle intractable, almost
metaphysical problems about the ‘essence’ of a cause of action that encompasses multiple claims. (Id. at
1011.) Plaintiff has made no allegations of protected activity.
Since Defendant has failed to show that any of Plaintiff’s claims arise out of protected activity, the
Court need not move on to the second prong of its analysis to determine whether Plaintiff’s claims have a
likelihood of success on the merits.
Ruling
J.B. HUNT TRANSPORT, INC. VS CONTRACTOR'S WARDROBE, INC.
Jul 09, 2024 |
24CHCV00391
Case Number:
24CHCV00391
Hearing Date:
July 9, 2024
Dept:
F43 Dept. F43
Date: 7-9-24
Case #24CHCV00391,
J.B. Hunt Transport, Inc. vs. Contractors Wardrobe, Inc.
Trial Date: N/A
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Defendant Contractors Wardrobe, Inc.
RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc.
RELIEF REQUESTED
Demurrer to the Complaint
·
2
nd
Cause of Action for Common Counts
·
3
rd
Cause of Action for Unjust Enrichment
Motion to Strike
·
Request for attorneys fees and costs of suit herein incurred and according to the Agreement in Plaintiff's Prayer [p. 6:17-18 of the Complaint]
·
Attorneys fees [pp. 4:16, 4:25, 5:6, 5:8, and 5:13]
·
Request for special and consequential damages in Plaintiffs Prayer [p. 6:15]
RULING
: Demurrer is sustained; motion to strike is granted.
SUMMARY OF ACTION
Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractors Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiffs complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendants good throughout California for an initial term of five years, beginning on April 1, 2020.
Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges.
Plaintiffs complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiffs Second and Third Causes of Action.
Plaintiff filed an opposition to Defendants demurrer and motion to strike on June 25, 2024.
ANALYSIS
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (
Postley v. Harvey
(1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (
Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (
Picton v. Anderson Union High School Dist.
(1996) 50 Cal.App.4th 726, 733.)
Second Cause of Action for Common Counts
Defendant demurs to Plaintiffs Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain.
Defendant argues that Plaintiffs cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received.
Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373).
Demurrers have long been sustained when separate causes of action are not listed separately. (
Haddad v. McDowell
(1931) 213 Cal. 690, 692;
Campbell v. Rayburn
(1954) 129 Cal.App.2d 232, 235 (the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated).)
Plaintiffs opposition does not address Defendants arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. (
Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a conclusional fashion).)
Defendants demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action.
Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action.
Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See
Leoni v. Delany
(1948) 83 Cal.App.2d 303, 307 (It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.);
Moore v. Bartholomae Corp.
(1945) 69 Cal.App.2d 474, 477 (The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.).)
Plaintiffs complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendants breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.)
Plaintiffs cause of action for common counts is based on the same damages as Plaintiffs cause of action for breach of contract and is therefore improperly pled. Defendants demurrer to the second cause of action can also be sustained on this basis.
Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiffs opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiffs complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative.
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend for the reasons given above.
Third Cause of Action for Unjust Enrichment
Defendant demurs to Plaintiffs Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant.
Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. (
Melchior v. New Line Productions, Inc.
(2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See
Everett v. Mountains Recreation & Conservation Authority
(2015) 239 Cal.App.4th 541, 553.)
Plaintiffs opposition does not address Defendants argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action.
Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiffs breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.)
Because there is no cause of action for unjust enrichment in California, Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Motion to Strike
A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Under CCP § 436(b), the court may [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.
Attorney Fees
Defendant has requested that Plaintiffs request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.)
Plaintiffs complaint claims that it can recover attorney fees according to the Agreement, but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees.
Accordingly, Plaintiffs request for attorney fees is ordered stricken from the complaint.
Special and Consequential Damages
Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable).)
Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendants unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises in connection with&the services rendered hereunder. Therefore, the provision cited above could, in fact, apply to this situation.
Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiffs request for special and consequential damages is ordered stricken from the complaint.
CONCLUSION
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Defendants motion to strike is granted.
Plaintiff is given 30 days leave to amend.
Moving party to give notice to all parties.
Ruling
RAYMOND GHERMEZIAN, ET AL. VS ALMA NUNEZ, ET AL.
Jul 09, 2024 |
23STCV13104
Case Number:
23STCV13104
Hearing Date:
July 9, 2024
Dept:
61
RAYMOND GHERMEZIAN, et al. vs ALMA NUNEZ, et al.
TENTATIVE
Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion for Protective Order is DENIED. No sanctions are awarded. Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion to Compel Deposition of Defendant Joseph H. Low IV is GRANTED. No sanctions are awarded. Defendant Joseph H. Low IVs Motion to Compel Deposition of Plaintiff Raymond Ghermezian is GRANTED. No sanctions are awarded. Plaintiffs to give notice.
DISCUSSION
MOTION FOR PROTECTIVE ORDER Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) Plaintiff Raymond Ghermezian (Plaintiff) moves for an order preventing Defendants Alma Nunez and Joseph H. Low, IV (Defendants) from using an audio recording made by Nunez in the presence of Plaintiff without his consent in discovery, hearings, mediation, or any other purpose in this matter. (Motion at p. 2.) Plaintiff states that Nunez made an audio recording of him speaking to her regarding the underlying case, a fact revealed to him on May 28, 2024, during mediation in this matter.. (Ghermezian Decl. ¶ 3.) Plaintiff states the recording was played for the mediator and partially for himself. (Ibid.) Plaintiff contends that he did not consent to be recorded. (Ghermezian Decl. ¶ 4.) He argues that Defendants likely intend to present the recording at his deposition, in order to elicit testimony that may contradict its contents. (Ghermezian Decl. ¶ 5.) Defendants have no produced the recording in discovery. (Ghermezian Decl. ¶ 5.) Plaintiff relies on Penal Code § 632, which makes guilty of a misdemeanor any person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. (Penal Code § 632, subd. (a).) This same statute states: Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. (Penal Code § 632, subd. (d).) Defendants argue that Penal Code § 632s prohibition does not apply here, because the presence of a third person during the recorded conversation evidenced by a third voice on the recording renders the conversation not confidential. (Opposition at pp. 89.) But Defendants cite no authority for this argument, and it is contradicted by the statutory text. The statute prohibits a persons recording of a confidential communication without the consent of all parties, and does not indicate a limitation to bilateral communications between two persons. (Penal Code § 632, subd. (a), italics added.) The statute defines confidential communication to mean any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, once more indicating no limitation of confidentiality to two persons. (Penal Code § 632, subd. (c).) Defendants further argue that Penal Code § 632 is not applicable to civil proceedings(Opposition at p. 8), but this argument is contradicted by the statutory language itself, which prescribes inadmissibility in any judicial . . . proceedings, naturally including civil cases. (Penal Code § 632, subd. (d).) It is also contradicted by case authority, which has gone on to apply the provision to civil proceedings. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1492 [Neither the tainted recordings nor the notes derived from them can be read in evidence.].) Defendants arguments for the inapplicability of Penal Code § 632 is therefore unpersuasive. But regardless of whether or not Penal Code § 632 is applicable, Plaintiff has not shown good cause for the protective order he seeks here. Plaintiff seeks a total prohibition on the use of the recording, a sweeping order finding no basis in the operative statute. The legislature has defined the remedy appropriate for illicit recordings, which include criminal penalties and direction that such evidence be not admissible in judicial proceedings. (Penal Code § 632, subd. (d).) Plaintiff in fact misquotes the statute in his motion, stating that it prohibits the use of any illegal recording in any judicial, administrative, legislative, or other proceeding. (Motion at p. 5, italics added.) But the statute does not prohibit the recordings use; it renders the recording not admissible. (Penal Code § 632, subd. (d).) Such a recording therefore may not be admitted into evidence but it may be used for other purposes, such as, refreshing the recollection of the parties to the conversation. (See Frio, supra, 203 Cal.app.3d at p. 1494 [[W]e are unaware of any decision holding that a witness may not testify after simply refreshing recollection with tainted evidence.].) Plaintiff is therefore not entitled to a protective order. The motion for protective order is therefore DENIED. II. MOTION TO COMPEL DEPOSITION A party may make a motion compelling a witnesss deposition after service of a deposition notice if that witness fails to appear for examination, or to proceed with it. (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).) In competing motions, Plaintiff seeks to compel the deposition of Defendant Joseph R. Low, IV (Low), and Defendants seek to compel the deposition of Plaintiff. Defendants served Plaintiff with a deposition notice on April 30, 2024, with the deposition set for May 17, 2024, for which Plaintiff failed to appear after serving objections based on his lack of availability. (Lewis Decl. ¶¶ 34, Exhs. A, B.) Plaintiff stated in informal correspondence that
he has priority for his deposition because he had noticed Lows deposition to take place first. (Lewis Decl. Exh. E.)
Plaintiff, meanwhile, served Low with a deposition notice on February 1, 2024, with the deposition noticed for February 16, 2024. (Ghermezian Decl. ¶ 3, Exh. A.) Low objected to the date and to the requests for production on February 8, 2024. (Ghermezian Decl. ¶ 4, Exh. B.) Plaintiff sent an email on February 8, 2024, seeking alternative dates to depose Mr. Low in my office in February. (Ghermezian Decl. Exh. C.) Defendants evidently provided no dates. In a March 7, 2024 email, Defendants counsel told Plaintiff that Lows trial calendar one lasting six to eight weeks, another expected to last ten days would prevent his attendance at a mediation any earlier than the May 28 date offered by the mediator, (Ghermezian Decl. Exh. E.) But Defendants declined to offer dates for Lows deposition, even after noticing Plaintiffs deposition for May 17. (Ghermezian Decl. Exh. D.) Both parties motions shall be granted, and both Ghermezian and Low compelled to attend deposition. Both parties object on the basis of availability, yet neither have provided any dates of availability for the depositions to proceed. Plaintiff argues that he is entitled to take the deposition of Low first because he noticed the deposition first. (Opposition at pp. 23.) Plaintiff was not so entitled, because the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party. (Code Civ. Proc., § 2019.020, subd. (a).) Plaintiff relies on State Bar civility guidelines stating, When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsels agreement. (Cal. Attorney Guidelines of Civility and Professionalism, § 9, subd. (a)(1).) But the taking of Lows deposition during the time allotted by Plaintiff was prevented by Lows trial schedule. And in any event, these guidelines do not excuse either partys refusal to offer dates, in light of an express statutory directive against Plaintiffs argument limiting discovery based on priority. In addition to compelling Lows attendance at deposition, Plaintiff also seeks an order directing him to produce documents responsive to three requests for production contained in the deposition notice, which seek documents related to the settlement and Nunezs client file. (Motion at p. 5; Ghermezian Decl. Exh. A.) Although Defendants argue that they have already responded to similar requests offered as inspection demands (Opposition at pp. 34), Plaintiff may seek the same discovery by deposition notice that they earlier sought by written discovery, if they are dissatisfied with the earlier responses. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [[T]he inspection of documents procedure is quite different from a deposition at which a party is required to bring documents. Nothing in either section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.].) The documents sought here relate to the subject matter of the action, and good cause for the production has been shown, subject to a privilege log under Code of Civil Procedure § 2031.240. The motions to compel deposition are therefore GRANTED. III. SANCTIONS If a motion to compel deposition is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom
the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).)
Plaintiff seeks $2,400.00 in sanctions against Defendants and their counsel, representing six hours of attorney work at $400 per hour. (Ghermezian Decl. ¶ 11.) Defendant Low seeks $3,660.00 in sanctions against Plaintiff, representing six hours of attorney work at $600 per hour plus a $60 filing fee. (Lewis Decl. ¶¶ 1315.) No sanctions are awarded on either motion, as the parties have obtained relief against each other. Sanctions are also mandatory against the party who unsuccessfully makes or opposes a motion for a protective order, absent substantial justification or other circumstances that make the award of the sanctions unjust. (Code Civ. Proc. § 2025.420, subd. (h). Plaintiff seeks $2,100.00 in sanctions, representing a miscalculation of seven hours of attorney work at $400, which should yield a total of $2,800.00. (Ghermezian Decl. ¶ 7.) Defendants in turn seek $2,880.00 in sanctions on the same motion, representing a miscalculation of 4.5 hours of attorney work at $600 per hour, which should yield a sanctions request of $2,700.00. (Lewis Decl. ¶ 13.) No sanctions under the protective order motion are appropriate, as Plaintiff sought the order based on a misinterpretation of the reach of Penal Code § 632, subd. (d), and Defendants opposed it based on a misinterpretation of Penal Code § 632, subd. (c). It would therefore be unjust to award sanctions to either party
Ruling
KF SUNRAY, LLC VS FRANCIS MEJIA
Jul 09, 2024 |
24STCV05465
Case Number:
24STCV05465
Hearing Date:
July 9, 2024
Dept:
52
Tentative Ruling
Order to Show Cause Re: Default Judgment
Plaintiff KF
Sunray, LLC dba Sunray Healthcare Center requests court judgment by default against defendant Francis Mejia aka Francis R. Mejia, Sr. aka Francis R. Mejia.
Plaintiffs application meets all requirements for default judgment.
Plaintiffs request for default judgment is
granted
.
The court will sign the proposed judgment plaintiff submitted on form JUD-100 and will enter judgment.
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Document
Joseph Deluca, Angelo Costanza, Frank Costanza v. Michael Cave, Strongarm Ventures, Port Ridge Construction, Northfork Gateway, Ncga Llc, 41 Summit Llc, The Reilly Law Group, Jennifer Reilly Esq
Mar 31, 2021 |
J-COMM Garguilo |
Commercial - Contract |
Commercial - Contract |
601996/2024
Preview
FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 .. EXHIBIT BBB FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF SUFFOLK: ----------------------------------------- X D&L Realty Partners, LLC, Plaintiff, INDEX #619585/2018 REPLY AFFIRMATION -against- (Hon. J. Pastoressa) Eugene Hubbard, Defendant. ------------- -----------------------------------------------X Richard T. Haefeli, an attorney at law duly admitted to practice in the Courts of the State of New York, affirms the following under penalty of perjury: 1. That your affiant is the attorney for the Defendant and as such submits this affirmation in reply to the answering affirmation of the Plaintiff. 2. The Plaintiff in its answering affirmation refers to property record cards maintained by the Town of Southampton to establish that the property that the Plaintiff claims was the subject of the contract is a separate parcel of property. 3. The determination as to the number of lots is not made by the Town of Southampton; itis made by the Village of Westhampton Beach and the Village Zoning Board of Appeals determined in 2014 that there is only a single lot. (See Defendant's Exhibit L) 4, In addition, the configuration of the lots shown on the tax map (See Defendant's Exhibit A attached) is not the configuration of the lots that were approved by the FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 Planning Board in 1981, rather the configuration of tax Lot 12.02, is the same configuration as is shown on the Plaintiff's 2013 survey (See Plaintiff's Exhibit D) and this configuration is not the configuration of the 2 lots approved by the Planning Board in 1981. (See Defendant's Exhibit D) 5. The Plaintiff makes the claim throughout itsmemo of law and specifically on pages 1, 2, 9 and 10 that the Defendant owned the property that was the subject of the contract. 6. The Defendant never admitted that he owned the property that the Plaintiff claims is the subject of the contract, which property is shown on the Plaintiff's 2013 survey. (See Plaintiff's Exhibit D) 7. The property that the Defendant claims that he owns was designated as Parcel B on the 1981 subdivision map (see Defendant's Exhibit D) which was devised to him in his father's 1984 will. (See Defendant's Exhibit J) 8. While the Plaintiff claims that the zoning issues do not prevent the Defendant from transf rring titleto him, this claim totally ignores the July, 17, 2014 determination of the Zoning Board (See Defendant's Exhibit L) which found that 2 lots had not been created and there is not a separate lot in existence. 9. Based upon res judicata and statute of limitations the Plaintiff cannot dispute the determination that there is only a single lot in existence. 10. Since there is only a single lot in existence, the provisions of the Zoning Code, reinforced by the Village Law, prohibit the transfer of the property without approval from the Plamling Board and any such transfer would be illegal and could result in fines, penalties and litigation by the Village. 2 FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 11. The Plaintiff's complaint is nothing more than a request to have the Court allow the transfer of part of the property to the Plaintiff without Planning Board approval in violation of § 197-66 of the Village Code. 12. The transfer of the property would also result in a violation of §197-5 (1) of the Village Code which provides "no building, structure or land [emphasis added] shall hereafter be used or occupied ... unless in conformity with the regulations herein located." specified for the district in which itis (See Defendant's Exhibit B attached). 13. Any transfer of the property at this time without Planning Board approval would result in a violation of § 197-5(1) of the Village Code and would prevent the Defendant from renting the remaining property to an affiliate of the Plaintiff. 14. On page 15 of itsmemorandum the Plaintiff states in reference to the penalty " provisions set forth in §l97-83 (See Defendant's Exhibit S) ...the section does not ..." impose a fine for the mere transfer of an interest in non-conforming property This is a total misstatement of the law. 15. The transfer of the property would not be the transfer of a nonconforming lot since a nonconforming lot is a lot that was in existence prior to the adoption of the Zoning Code in 1953. ( Matter of East End Holding, LLC v Village of Southampton, Zoning Bd. of Appeals, 135 A.D. 3d 860) 16. The transfer of the lot at this time would be the transfer of a lot that was not in existence in 1953, the year the Westhampton Beach Zoning Code was adopted, and therefore itwould be an illegal lotwhich did not receive Planning Board approval and therefore the provisions of § 197-83 would apply to the Defendant not only because the 3 FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 Defendant transferred the property but also because the Defendant had an ownership interest in the remainder of the property. 17. On page 6 of the Plaintiff's memorandum the Plaintiff states that the condition of municipal approval set forth in paragraph 10 of the contract (See Plaintiff Exhibit G) was for the benefit of the Plaintiff only. 18. This statement is inaccurate since the Defendant retained an interest in the balance of the property and the Defendant was required to ensure that the municipal approvals applied to all of the property including the balãñce of the property; therefore this provision applied to the Defendant and at no time did the Defendant waive this provision. 19. Plaintiff's claim on page 17 of its memorandum that its letter dated August 22, 2019 (See Plaintiff's Exhibit I) established a law day entitling itto commence an action for specific performance is not supported by the law. 20. To establish a time of essence closing requires that the notice set forth the date and place of closing and that if the party does not perform Ïtwill be considered in default. (Point Holding v Crittenden, 119 A D.2d 918, 919) 21. The letter of August 22, 2019 does not state that the failure to appear and close title will result in the default; therefore, itis not a time of essence letter and cannot form the basis for the Plaintiff's specific performance action. 22. As stated in the original papers, the contract fails to specify the property that was the subject of the contract and as a result itis void pursuant to GOL§5 - 703 [2] 23. The Suffolk County tax map which is attached as Exhibit A to this affirmation clearly establishes that the description set forth is not the description of the property 4 FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 Defendant transferred the property but also because the Defendant had an ownership interest in the remainder of the property. 17. On page 6 of the Plaintiff's memorandum the Plaintiff states that the condition of municipal approval set forth in paragraph 10 of the contract (See Plaintiff Exhibit G) was for the benefit of the Plaintiff only. 18. This statement is inaccurate since the Defendant retained an interest in the balance of the property and the Defendant was required to ensure that the municipal approvals applied to allof the property including the balance of the property; therefore this provision applied to the Defendant and at no time did the Defendant waive this provision. 19. Plaintiff's claim on page 17 of itsmemorandum that its letter dated August 22, 2019 (See Plaintiff's Exhibit I) established a law day entitling itto commence an action for specific performance is not supported by the law. 20. To establish a time of essence closing requires that the notice set forth the date and place of closing and that if the party does not perform itwill be considered in default. (Point Holding v Crittenden, 119 AD.2d 918, 919) 21. The letter of August 22, 2019 does not state that the failure to appear and close title will result in the default; therefore, itis not a time of essence letter and cannot form the basis for the Plaintiff's specific performance action. 22. As stated in the original papers, the contract fails to specify the property that was the subject of the contract and as a result itis void pursuant to GOL§5 - 703 [2] 23. The Suffolk County tax map which is attached as Exhibit A to this affirmation clearly establishes that the description set forth is not the description of the property 4 FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 owned by the Defendant at the time the contract was executed therefore the tax map description of the property is insufficient to meet the requirements of the Statute of Frauds. 24. While the Plaintiff claims that itwas not required to give written notice of its waiver, paragraph 28 (b) of the contract specifically requires written notice. Since the Plaintiff claims that it iswaiving the provisions of the contract, such waiver requires written notice and the Plaintiff's claim that itis not required to give written notice has no basis in fact or law, 25. As to the Plaintiff's second cause of action, the Defendant has never stated that if the Court finds that the Plaintiff is not entitle to specific performance of the contract and dismisses the complaint, that Plaintiff is not entitled to a return of the down payment. 26. If the Court dismisses the complaint and the contract is no longer in effect, the Plaintiff is entitled to a return of the down payment from the attorney holding the money in escrow. Wherefore itis respectfully requested that the Plaintiff's Motion for Summary Judgment be in all respects denied, that the Plaintiff's request for damages relating to the down payment be denied, that the Notice of Pendency be discharged, that the complaint be dismissed and that the Defendant's Cross-Motion for Summary Judgment rescinding the contract be in all respects granted, Dated: May 20, 2019. Richard T. Haefeli 5 FILED: SUFFOLK COUNTY CLERK 01/29/2020 04:45 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/29/2020 WORD COUNT CERTIFICATION I certify that pursuant to Rule 17 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR §202.70), and based on the word-counting function of my word processing system (Microsoft Word 2018), this document complies with the 7000 word limitation rule since the total number of words in this document, inclusive of point headings and footnote, and exclusive of captions, table of contents, table of authorities, and signature line or any authorized addendum containing statutes, rules and regulations is 1421. Dated: May 20, 2019 Richard T. Haefeli 6