Preview
FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020
SUPREME COURT OF THE STATE OF NEW YORK:
COUNTY OF SUFFOLK:
_________ ___ -----------------X
D&L Realty Partners, LLC,
Suffolk County
Plaintiff, Index # 619585/2018
Affirmation in Opposition
-against-
Hon. Joseph C. Pastoressa
Eugene Hubbard,
Motion Seq 008
Defendant.
---------------·---- ---------X
Richard T. Haefell, 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 opposition to the plaintiff's Order to Show Cause that the defendant be
held in contempt which is returnable on August 5, 2020.
2. The plaintiff claims that itis entitled to hold the defendant in contempt based
upon a letter sent by the plaintiff's attorney dated May 19, 2020 to the defendant which
the plaintiff characterizes as a time of essence letter.
3. . A time of essence letter is used in real estate contracts and sent by one of the
parties to the contract to set a specific date for the completion of the contract and it
cannot be used subsequent to the determination of the Court as the basis for holding the
defendant in contempt.
4. During the underlying motion for summary judgment, the following issues were
raised: (1) the deed to be used in a transfer; (2) the description of the property owned by
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the defendant that is to be uses in a transfer and (3) the execution and recording of an
easement set forth in a rider to the contract.
5. The plaintiff was aware of these issues yet none of these issues were set forth
in the plaintiff's letter of May 19, 2020. (See letter which is set forth as Exhibit D to the
moving papers)
6. There is also the issue of the release of the down payment which pursuant to the
order of this Court has been deposited in the Suffolk County Comptroller's Office.
(Annexed hereto as Exhibit A is a copy of the Comptroller's letter)
7. Not only were these issues not set forth in the plaintiff's May 19, 2020 letter,such
a letter could not set forth these conditions since they could only be set forth in a
determination of the Court.
8. In order to support a motion to hold the defendant in contempt, the plaintiff was
required to submit a proposed judgment on notice setting forth the specific conditions of
any transfer of the property and the plaintiff, rather than submitting such a judgment on
notice, elected to send a letter which not only had no effect but the letter itselffailed to
set forth any specifies of the transfer.
9. Any subsequent proceeding to hold the defendant in contempt must be based upon
the specific terms set forth in the judgment.
10. Since there is no judgment setting forth the specifies of any transfer, there is no
basis for the present motion.
11. The present motion is not based upon a specific determination of this Court as
required by §753 A of the Judiciary Law.
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12. As to the deed that had to be executed, the contract in paragraph 14 provides that
the deed to be delivered was to be a bargain and sale deed with covenant against grantor's
acts. (The contract is set forth in Exhibit A attached to plaintiff's moving papers)
13. In this case the defendant cannot give a bargain and sale deed with covenant
against grantor's acts since there are outstanding municipal issues that have to be
resolved preventing the execution and delivery of such a deed.
14. As was set forth in the original moving papers, the property that is the subject of
the contract was one of the two lots set forth on the 1981 subdivision map with the
property being Parcel B as shown on the subdivision map. (Annexed hereto and marked
Exhibit B is a copy of the subdivision map)
15. The Westhampton Beach Planning Board (hereinafter referred to as Planning
Board) approved the subdivision plan with conditions and required that a covenant setting
forth the conditions be filed in the Suffolk County Clerk's Office, which covenant would
be binding on both lots. (Annexed hereto and marked Exhibit C isa copy of the Planning
Board determination setting forth the conditions it imposed in approving the subdivision)
16. While the plaintiff claims that the covenant was filed, in making this claim the
plaintiff completely ignores the Surrogate's Court decision which was based upon the
plaintiff's attorney's petition.
17. The Surrogate's decision of February 16, 2018 refused to allow the filing of the
covenant executed by the defendant who only has a lifeestate in Parcel A since the
defendant could not bind the remaindermen of Parcel A, who were not parties to the
underlying proceeding. (Annexed hereto as Exhibit D is a copy of said decision)
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18. For the covenant required by the Suffolk County Planning Commission and the
Planning Board to be effective and binding on the owners of Parcel A on the subdivision
map, the covenant had to be executed by the remaindermen owners of Parcel A.
19. The remaindermen owners of Parcel A have never signed the covenant and
therefore there is no validly recorded covenant.
20. Another one of the conditions set forth in the Planning Board determination was
the requirement to obtain Suffolk County Health Department approval (hereinafter
referred to as Health Department).
21. There has never been an application submitted to the Health Department and the
Health Department has never approved of the subdivision.
22. In addition, any approval by the Health Department would also require the filing
of the subdivision map in the Suffolk County Clerk's Office and to date the subdivision
map has not been filed in the Suffolk County Clerk's Office. (Annexed as Exhibit E is
§760-607 Suffolk County Sanitary Code requiring the filing of a subdivision map in the
County Clerk's Office)
23. Accordingly, based upon the outstanding municipal approvals, the specific type of
deed would have to be specified by the Court.
24. In addition to the conditions set forth in the Planning Board resolution not being
satisfied, there has never been a proper description of the property submitted by the
plaintiff in any papers in this proceeding.
25. Paragraph 1 of the contract states that a description of the property is set forth in
Schedule A but there is no Schedule A attached to the contract describing the property;
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the survey that is attached to the contract is not a survey of the property owned by the
defendan. (See, Exhibit A of plaintiff's motion).
26. As a result, the Court has to set forth a description of the property that would be
included in any deed transferring the property.
27. Further, pursuant to paragraph 13 of the rider to the contract, the property was
sold subject to the recording of a certain easement attached to the contract.
28. The easement required the defendant to grant certain rights to the adjacent
property, which is Parcel A on the 1981 subdivision map, yet the defendant does not own
the property that was set forth in the easement.
29. Pursuant to the terms of the proposed easement, the remaindermen owners of
Parcel A were required to forego any claim of adverse possession and were required to
maintain a certain hedge row.
30. The remaindermen owners of Parcel A were required to execute an casement.
31. The defendant only has a life estate with respect to Parcel A and therefore the
remaindermen of Parcel A who are the owners and are not parties to this proceeding
would have to approve and execute the easement.
32. The defendant does not have the ability to obtain the remaindermen's approval of
or have them execute the easement therefore the issue of the easement would have to be
resolved prior to the transfer the property.
33. In addition, there is no description of the easement that the contract states has to
be recorded
34. All of these issues were set forth in the motions before this Court and therefore
the plaintiff knew at the time itsent the May 19, 2020 letter that these issues had to be
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resolved prior to any closing and that the plaintiff itselfcould not decide these issues but
rather itwould be up to the Court to decide the issues in a judgment.
35. Since the down payment has been paid to the Suffolk County Comptroller
pursuant to the order of this Court, the issue of the release of the down payment also has
to be decided by this Court.
36. It should also be noted that the letter referred to by the plaintiff as a time of
essence letter is dated May 19, 2020, with an alleged closing dated June 22, 2020.
37. The letter was issued at the time the order of the Governor regarding the
pandemic was in effect and law offices were not allowed to operate and as of that date
there was no final determination as to when law offices would be allowed to open and
operate; therefore, the letter is invalid, being in violation of the Governor's order.
38. It should be noted that the defendant has submitted to this Court a motion to have
the Court grant a stay with respect to all proceedings pending the appeal and for this
Court to set the amount of undertaking. (Annexed hereto and marked Exhibit F is a copy
of the motion)
39. The Court should grant the stay thereby precluding any issue as to the contempt.
40. The phintiff states in paragraph 23 of its affirmation that itwill be prejudiced
years."
since it"... has continuously sought to close on the transaction for several
However that is not the case.
41. The contract was executed August 22, 2013 with a closing scheduled for October
26, 2013 ( See Exhibit A attached to the moving papers) and the plaintiff over a five year
period tried to obtain the required approvals which would have allowed itto close title
with allapprovals and the plaintiff did not during this time ever try to close title.
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42. It was only after the plaintiff was unable to obtain the required approvals that the
plaintiff elected to close without the approvals.
43. When the defendant advised the plaintiff that itdid not have the ability to close,
the plaintiff commenced this action claiming that itwaived the conditions of the contract
and filed a notice of pendency, which prevents the defendant from transferring the
property.
44. While the plaintiff claims that ithas attempted to close the transaction over
several years, the defendant served and filed his appeal on June 16, 2020 and the plaintiff
was supposed to file itsanswering brief on July 16, 2020 and has requested and received
an extension to file its answering brief until August 17, 2020.
45. Since the plaintiff has extended the time for filing itsbrief, this extends the time
for a determination by the Appellate Division and therefore the plaintiff cannot claim
prejudice.
46. From the time the defendant, who is 93 year old, signed the contract to the present
time, the defendant has maintained the property including the payment of the real estate
taxes.
47. In fact the defendant and his father before him have maintained the property since
1939 when the defendant's father became the owner of the property.
48. The property is vacant and cannot be used for any purpose until the municipal
issues have been resolved and the 1981 subdivision is completed.
49. Until this appeal has been determined the process for the completion of the
subdivision process cannot be undertaken since the ownership of the property has to be
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finally determined, therefore, the plaintiff is not prejudiced in any maññer and there is no
basis for the present motion.
Wherefore the plaintiff's motion for contempt should in all respects be denied.
Dated: Westhampton Beach, NY
July 28, 2020
Richard T. Haefeli
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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 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF SUFFOLK: _________ ___ -----------------X D&L Realty Partners, LLC, Suffolk County Plaintiff, Index # 619585/2018 Affirmation in Opposition -against- Hon. Joseph C. Pastoressa Eugene Hubbard, Motion Seq 008 Defendant. ---------------·---- ---------X Richard T. Haefell, 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 opposition to the plaintiff's Order to Show Cause that the defendant be held in contempt which is returnable on August 5, 2020. 2. The plaintiff claims that itis entitled to hold the defendant in contempt based upon a letter sent by the plaintiff's attorney dated May 19, 2020 to the defendant which the plaintiff characterizes as a time of essence letter. 3. . A time of essence letter is used in real estate contracts and sent by one of the parties to the contract to set a specific date for the completion of the contract and it cannot be used subsequent to the determination of the Court as the basis for holding the defendant in contempt. 4. During the underlying motion for summary judgment, the following issues were raised: (1) the deed to be used in a transfer; (2) the description of the property owned by 1 1 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 the defendant that is to be uses in a transfer and (3) the execution and recording of an easement set forth in a rider to the contract. 5. The plaintiff was aware of these issues yet none of these issues were set forth in the plaintiff's letter of May 19, 2020. (See letter which is set forth as Exhibit D to the moving papers) 6. There is also the issue of the release of the down payment which pursuant to the order of this Court has been deposited in the Suffolk County Comptroller's Office. (Annexed hereto as Exhibit A is a copy of the Comptroller's letter) 7. Not only were these issues not set forth in the plaintiff's May 19, 2020 letter,such a letter could not set forth these conditions since they could only be set forth in a determination of the Court. 8. In order to support a motion to hold the defendant in contempt, the plaintiff was required to submit a proposed judgment on notice setting forth the specific conditions of any transfer of the property and the plaintiff, rather than submitting such a judgment on notice, elected to send a letter which not only had no effect but the letter itselffailed to set forth any specifies of the transfer. 9. Any subsequent proceeding to hold the defendant in contempt must be based upon the specific terms set forth in the judgment. 10. Since there is no judgment setting forth the specifies of any transfer, there is no basis for the present motion. 11. The present motion is not based upon a specific determination of this Court as required by §753 A of the Judiciary Law. 2 2 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 12. As to the deed that had to be executed, the contract in paragraph 14 provides that the deed to be delivered was to be a bargain and sale deed with covenant against grantor's acts. (The contract is set forth in Exhibit A attached to plaintiff's moving papers) 13. In this case the defendant cannot give a bargain and sale deed with covenant against grantor's acts since there are outstanding municipal issues that have to be resolved preventing the execution and delivery of such a deed. 14. As was set forth in the original moving papers, the property that is the subject of the contract was one of the two lots set forth on the 1981 subdivision map with the property being Parcel B as shown on the subdivision map. (Annexed hereto and marked Exhibit B is a copy of the subdivision map) 15. The Westhampton Beach Planning Board (hereinafter referred to as Planning Board) approved the subdivision plan with conditions and required that a covenant setting forth the conditions be filed in the Suffolk County Clerk's Office, which covenant would be binding on both lots. (Annexed hereto and marked Exhibit C isa copy of the Planning Board determination setting forth the conditions it imposed in approving the subdivision) 16. While the plaintiff claims that the covenant was filed, in making this claim the plaintiff completely ignores the Surrogate's Court decision which was based upon the plaintiff's attorney's petition. 17. The Surrogate's decision of February 16, 2018 refused to allow the filing of the covenant executed by the defendant who only has a lifeestate in Parcel A since the defendant could not bind the remaindermen of Parcel A, who were not parties to the underlying proceeding. (Annexed hereto as Exhibit D is a copy of said decision) 3 3 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 18. For the covenant required by the Suffolk County Planning Commission and the Planning Board to be effective and binding on the owners of Parcel A on the subdivision map, the covenant had to be executed by the remaindermen owners of Parcel A. 19. The remaindermen owners of Parcel A have never signed the covenant and therefore there is no validly recorded covenant. 20. Another one of the conditions set forth in the Planning Board determination was the requirement to obtain Suffolk County Health Department approval (hereinafter referred to as Health Department). 21. There has never been an application submitted to the Health Department and the Health Department has never approved of the subdivision. 22. In addition, any approval by the Health Department would also require the filing of the subdivision map in the Suffolk County Clerk's Office and to date the subdivision map has not been filed in the Suffolk County Clerk's Office. (Annexed as Exhibit E is §760-607 Suffolk County Sanitary Code requiring the filing of a subdivision map in the County Clerk's Office) 23. Accordingly, based upon the outstanding municipal approvals, the specific type of deed would have to be specified by the Court. 24. In addition to the conditions set forth in the Planning Board resolution not being satisfied, there has never been a proper description of the property submitted by the plaintiff in any papers in this proceeding. 25. Paragraph 1 of the contract states that a description of the property is set forth in Schedule A but there is no Schedule A attached to the contract describing the property; 4 4 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 the survey that is attached to the contract is not a survey of the property owned by the defendan. (See, Exhibit A of plaintiff's motion). 26. As a result, the Court has to set forth a description of the property that would be included in any deed transferring the property. 27. Further, pursuant to paragraph 13 of the rider to the contract, the property was sold subject to the recording of a certain easement attached to the contract. 28. The easement required the defendant to grant certain rights to the adjacent property, which is Parcel A on the 1981 subdivision map, yet the defendant does not own the property that was set forth in the easement. 29. Pursuant to the terms of the proposed easement, the remaindermen owners of Parcel A were required to forego any claim of adverse possession and were required to maintain a certain hedge row. 30. The remaindermen owners of Parcel A were required to execute an casement. 31. The defendant only has a life estate with respect to Parcel A and therefore the remaindermen of Parcel A who are the owners and are not parties to this proceeding would have to approve and execute the easement. 32. The defendant does not have the ability to obtain the remaindermen's approval of or have them execute the easement therefore the issue of the easement would have to be resolved prior to the transfer the property. 33. In addition, there is no description of the easement that the contract states has to be recorded 34. All of these issues were set forth in the motions before this Court and therefore the plaintiff knew at the time itsent the May 19, 2020 letter that these issues had to be 5 5 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 resolved prior to any closing and that the plaintiff itselfcould not decide these issues but rather itwould be up to the Court to decide the issues in a judgment. 35. Since the down payment has been paid to the Suffolk County Comptroller pursuant to the order of this Court, the issue of the release of the down payment also has to be decided by this Court. 36. It should also be noted that the letter referred to by the plaintiff as a time of essence letter is dated May 19, 2020, with an alleged closing dated June 22, 2020. 37. The letter was issued at the time the order of the Governor regarding the pandemic was in effect and law offices were not allowed to operate and as of that date there was no final determination as to when law offices would be allowed to open and operate; therefore, the letter is invalid, being in violation of the Governor's order. 38. It should be noted that the defendant has submitted to this Court a motion to have the Court grant a stay with respect to all proceedings pending the appeal and for this Court to set the amount of undertaking. (Annexed hereto and marked Exhibit F is a copy of the motion) 39. The Court should grant the stay thereby precluding any issue as to the contempt. 40. The phintiff states in paragraph 23 of its affirmation that itwill be prejudiced years." since it"... has continuously sought to close on the transaction for several However that is not the case. 41. The contract was executed August 22, 2013 with a closing scheduled for October 26, 2013 ( See Exhibit A attached to the moving papers) and the plaintiff over a five year period tried to obtain the required approvals which would have allowed itto close title with allapprovals and the plaintiff did not during this time ever try to close title. 6 6 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 42. It was only after the plaintiff was unable to obtain the required approvals that the plaintiff elected to close without the approvals. 43. When the defendant advised the plaintiff that itdid not have the ability to close, the plaintiff commenced this action claiming that itwaived the conditions of the contract and filed a notice of pendency, which prevents the defendant from transferring the property. 44. While the plaintiff claims that ithas attempted to close the transaction over several years, the defendant served and filed his appeal on June 16, 2020 and the plaintiff was supposed to file itsanswering brief on July 16, 2020 and has requested and received an extension to file its answering brief until August 17, 2020. 45. Since the plaintiff has extended the time for filing itsbrief, this extends the time for a determination by the Appellate Division and therefore the plaintiff cannot claim prejudice. 46. From the time the defendant, who is 93 year old, signed the contract to the present time, the defendant has maintained the property including the payment of the real estate taxes. 47. In fact the defendant and his father before him have maintained the property since 1939 when the defendant's father became the owner of the property. 48. The property is vacant and cannot be used for any purpose until the municipal issues have been resolved and the 1981 subdivision is completed. 49. Until this appeal has been determined the process for the completion of the subdivision process cannot be undertaken since the ownership of the property has to be 7 7 of 8 FILED: SUFFOLK COUNTY CLERK 07/28/2020 04:28 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 07/28/2020 finally determined, therefore, the plaintiff is not prejudiced in any maññer and there is no basis for the present motion. Wherefore the plaintiff's motion for contempt should in all respects be denied. Dated: Westhampton Beach, NY July 28, 2020 Richard T. Haefeli 8 8 of 8