Preview
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
x
MICHAEL LI, individually and derivatively on
behalf of FLUSHING ENDOSCOPY CENTER, : VERIFIED ANSWER
LLC,
Plaintiff,
Index No. 719600/2019
-against-
KING-CHEN HON, ALAN C. YAO, JACKSON
KUAN, LANA CHOY, AND FLUSHING
ENDOSCOPY CENTER, LLC,
Defendants.
x
Defendants King-Chen Hon, Alan C. Yao, Jackson Kuan, Lana Choy, and Flushing
Endoscopy Center, LLC (collectively the "Defendants"), by their attorneys, Garfunkel Wild,
P.C., answer the Plaintiff Michael Li's Verified Complaint, dated November 15, 2019
("Complaint"), as follows:
1. Defendants deny the truth of the allegations contained in paragraph I of the
Complaint, except admit only that the Plaintiff had been a member and manager of Flushing
Endoscopy Center, LLC (the "Center"). Defendants deny knowledge and information sufficient
to form a belief as to the truth of the allegations concerning Plaintiffs residence.
2. Defendants admit the allegations contained in paragraph 2,of the Complaint.
3. Defendants admit the allegations contained in paragraph 3 of the Complaint.
4. Defendants admit the allegations contained in paragraph 4 of the Complaint.
5. Defendants admit the allegations contained in paragraph 5 of the Complaint.
6. Defendants admit the allegations contained in paragraph 6 of the Complaint.
5571210v.2
1 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
7. Defendants deny the allegations contained in paragraph 7 of the Complaint.
8. Defendants deny the allegations contained in paragraph 8 of the Complaint.
9. Defendants admit the allegations contained in paragraph 9 of the Complaint.
10. Defendants admit the allegations contained in paragraph 10 of the Complaint, and
respectfully refer the Court to the "operating agreement, as amended" alleged therein for the true
and correct terms, and legal effects, if any.
11. Defendants deny the allegations contained in paragraph 11 of the Complaint,
except admit only that Plaintiff previously owned 34% of the membership interests of the Center.
12. Defendants admit the allegations contained in paragraph 12 of the Complaint.
13. Defendants deny the allegations contained in paragraph 13 of the Complaint, and
respectfully refer the Court to the operating agreement for the true and correct terms, and legal
effects, if any, thereof.
14. Defendants deny the allegations contained in paragraph 14 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and
legal effects, if any, thereof
15. Defendants deny the allegations contained in paragraph 15 of the Complaint, and
respectfully refer the Court to the "First Amendment to the Operating Agreement" for the true
and correct terms, and legal effects, if any, thereof.
16. Defendants deny the allegations contained in paragraph 16 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and
legal effects, if any, thereof.
2
5571210 v.2
2 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
17. Defendants deny the allegations contained in paragraph 17 of the Complaint, and
respectfully refer the Court to the "Third Amendment to the Operating Agreement" for the true
and correct terms, and legal effects, if any, thereof
18. Defendants deny the allegations contained in paragraph 18 of the Complaint, and
respectfully refer the Court to the "Notice" alleged therein for the true and correct terms, and
legal effects, if any, thereof
19. Defendants deny the allegations contained in paragraph 19 of the Complaint.
20. Defendants deny the allegations contained in paragraph 20 of the Complaint, and
respectfully refer the Court to the "Notice," "Operating Agreement," and "Third Amendment to
the Operating Agreement" alleged therein for the true and correct terms, and legal effects, if any,
thereof
21. Defendants deny the allegations contained in paragraph 21 of the Complaint,
except admit only that the Center held a "Special Meeting" to discuss Plaintiff's expulsion from
the Center.
22. Defendants deny the allegations contained in paragraph 22 of the Complaint,
except admit only that Plaintiff voted against his own expulsion from the Center.
23. Defendants deny the allegations contained in paragraph 23 of the Complaint.
24. Defendants deny the allegations contained in paragraph 24 of the Complaint.
25. Defendants deny the allegations contained in paragraph 25 of the Complaint.
26. Defendants deny the allegations contained in paragraph 26 of the Complaint.
27. In response to paragraph 27 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
28. Defendants deny the allegations contained in paragraph 28 of the Complaint.
3
5571210v2
3 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
29. Defendants deny the allegations contained in paragraph 29 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and
legal effects, if any, thereof
30. Defendants deny the allegations contained in paragraph 30 of the Complaint.
31. Defendants deny the allegations contained in paragraph 31 of the Complaint.
32. Defendants deny the allegations contained in paragraph 32 of the Complaint.
33. Defendants deny the allegations contained in paragraph 33 of the Complaint.
34. In response to paragraph 34 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
35. Defendants deny the allegations contained in paragraph 35 of the Complaint.
36. Defendants deny the allegations contained in paragraph 36 of the Complaint.
37. In response to paragraph 37 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
38. Defendants deny the allegations contained in paragraph 38 of the Complaint, and
respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms,
and legal effects, if any, thereof
39. Defendants deny the allegations contained in paragraph 39 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and
legal effects, if any, thereof
40. Defendants deny the allegations contained in paragraph 40 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" and "Chan Redemption Agreement"
for the true and correct terms, and legal effects, if any, thereof.
5571210v.2
4 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
41. Defendants deny the allegations contained in paragraph 41 of the Complaint, and
respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms,
and legal effects, if any, thereof
42. Defendants deny the allegations contained in paragraph 42 of the Complaint, and
respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms,
and legal effects, if any, thereof.
43. Defendants deny the allegations contained in paragraph 43 of the Complaint.
44. Defendants deny the allegations contained in paragraph 44 of the Complaint, and
respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms,
and legal effects, if any, thereof.
45. In response to paragraph 45 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
46. Defendants neither admit nor deny the allegations contained in paragraph 46 of
the Complaint, as it states a conclusion of law to which no response is required.
47. Defendants deny the allegations contained in paragraph 47 of the Complaint.
48. Defendants deny the allegations contained in paragraph 48 of the Complaint.
49. Defendants deny the allegations contained in paragraph 49 of the Complaint.
50. In response to paragraph 50 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
51. Defendants deny the allegations contained in paragraph 51 of the Complaint.
52. Defendants deny the allegations contained in paragraph 52 of the Complaint.
53. Defendants deny the allegations contained in paragraph 53 of the Complaint.
54. Defendants deny the allegations contained in paragraph 54 of the Complaint.
5
5571210v.2
5 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
55. In response to paragraph 55 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
56. Defendants deny the allegations contained in paragraph 56 of the Complaint.
57. Defendants deny the allegations contained in paragraph 57 of the Complaint.
58. Defendants deny the allegations contained in paragraph 58 of the Complaint.
59. Defendants deny the allegations contained in paragraph 59 of the Complaint.
60. In response to paragraph 60 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
61. Defendants deny the allegations contained in paragraph 61 of the Complaint.
62. Defendants deny the allegations contained in paragraph 62 of the Complaint.
63. Defendants deny the allegations contained in paragraph 63 of the Complaint.
64. In response to paragraph 64 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
65. Defendants deny the allegations contained in paragraph 65 of the Complaint,
except admit only that Plaintiff had been a member of the Center.
66. Defendants neither admit nor deny the allegations contained in paragraph 66 of
the Complaint, as it states a conclusion of law to which no response is required.
67. Defendants deny the allegations contained in paragraph 67 of the Complaint,
except admit only that Plaintiff had been a past member and manager of the Center.
68. Defendants deny the allegations contained in paragraph 68 of the Complaint.
69. Defendants deny the allegations contained in paragraph 69 of the Complaint.
70. Defendants deny the allegations contained in paragraph 70 of the Complaint.
6
5571210v.2
6 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
71. In response to paragraph 71 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
72. Defendants deny the allegations contained in paragraph 72 of the Complaint, and
respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and
legal effects, if any, thereof.
73. Defendants deny the allegations contained in paragraph 73 of the Complaint.
74. Defendants deny the allegations contained in paragraph 74 of the Complaint.
75. Defendants deny the allegations contained in paragraph 75 of the Complaint.
76. In response to paragraph 76 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
77. Defendants deny the allegations contained in paragraph 75 of the Complaint, and
respectfully refer the Court to the alleged notice given to the New York State Department of
Health for the true and correct terms, and legal effects, if any, thereof.
78. Defendants deny the allegations contained in paragraph 78 of the Complaint.
79. Defendants deny the allegations contained in paragraph 79 of the Complaint.
80. Defendants deny the allegations contained in paragraph 80 of the Complaint.
81. In response to paragraph 81 of the Complaint, Defendants repeat and reallege the
above answers as if fully set forth herein.
82. Defendants deny the allegations contained in paragraph 82 of the Complaint,
except admit only that Plaintiff had been a member and manager of the Center.
83. Defendants deny the allegations contained in paragraph 83 of the Complaint,
except admit only that Defendants are aware that Plaintiff had been a member and manager of
the Center.
7
5571210v.2
7 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
84. Defendants deny the allegations contained in paragraph 84 of the Complaint.
85. Defendants deny the allegations contained in paragraph 84 of the Complaint.
FIRST AFFIRMATIVE DEFENSE
86. The Complaint fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
87. The Plaintiffs claims must be dismissed, in whole or in part, based on the
documentary evidence, including, but not limited to, any contractual defenses or conditions, or
the lack of documentary evidence.
THIRD AFFIRMATIVE DEFENSE
88. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiff s
failure to mitigate damages.
FOURTH AFFIRMATIVE DEFENSE
89. The Plaintiffs claims must be dismissed, in whole or in part, as a result of the
Plaintiffs breach of, or failure to satisfy, material conditions precedent.
FIFTH AFFIRMATIVE DEFENSE
90. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiffs
unclean hands and breaches of his own fiduciary duties owed to the Center.
SIXTH AFFIRMATIVE DEFENSE
91. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiff s
lack of standing as a former member of the Center.
SEVENTH AFFIRMATIVE DEFENSE
92. The Plaintiffs claims must be dismissed, in whole or in part, based on the
absence of a person who should be a party.
8
5571210v.2
8 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
WHEREFORE, the Defendants respectfully request that the Court issue a judgment
dismissing all claims against them, and awarding Defendants such other and further relief as the
Court deems just and proper.
Dated: Great Neck, New York
January 3, 2019
GARFUNKEL WILD, P.C.
Attorneysfor Defendants
By:
Andrew L. fwerljng
111 Great Neck Road
Great Neck, New York 11021
(516) 393-2200
To: Jeffrey Klarsfeld, Esq.
PLATTE, KLARSFELD & LEVINE, LLP
Attorneysfor Plaintiff
10 East 40th Street, 46th Floor
New York, New York 10016
Tel: (212) 726-4423
9
5571210v.2
9 of 10
FILED: QUEENS COUNTY CLERK 01/03/2020
06/02/2020 11:02
04:05 AM
PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 5
26 RECEIVED NYSCEF: 01/03/2020
06/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
ic
MICHAEL LI, individually and derivatively on
behalf of FLUSHING ENDOSCOPY CENTER, VERIFICATION
LLC,
Plaintiff; Index No. 719600/2019
-against-
K1NG-CHEN HON, ALAN C. YAO, JACKSON
KUAN, LANA CHOY, AND FLUSHING
ENDOSCOPY CENTER, LLC,
Defendants.
STATE OF NEW YORK )
) ss:
COUNTY OF QUEENS )
KING-CRENG HON, M.D., being duly sworn, deposes, and says:
I am one of the managing members of Defendant Flushing,Endoscopy Center, LLC, and
an individually named Defendant in the within action,
I have read the, foregoing Answer and know its contents. It is true to my knowledge,
except as to matters alleged upon information and belief, which matters I believe to be true:
A • eciS
ION& D.
Svvorn to before me this
2.-4 day of December, 2019 PERSAUD KNEEWkWAITE
NOTARY PUBLIC, STATE'OF NEW
ReglstratforNo. 01PE625884Y6On
Qualified in Queens County
COmMisSinn cyttir. And' (17 20 a
NOTARY PUBLIC
5575348v.1
10 of 10
Related Content
in Queens County
Ruling
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION VS DEL SOL PROPERTY MANAGEMENT, INC., ET AL.
Jul 10, 2024 |
21STCV12444
Case Number:
21STCV12444
Hearing Date:
July 10, 2024
Dept:
78
Superior Court of California
¿
County of Los Angeles
¿
Department 78
¿
¿
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION
,
Plaintiff
(s)
,
vs.
DEL SOL PROPERTY MANAGEMENT, INC.
, et al.,
Defendant
(
s
)
.
Case No.:¿
21STCV12444
Hearing Date:¿
July
10
, 2024
[TENTATIVE]
ORDER
CONTINUING MOTION FOR
OSC RE:
CONTEMPT
On May 15, 2024, defendant/cross-complainant D
el Sol Property Management, Inc.
(
D
el Sol
)
filed the instant motion for an OSC Re: Contempt based on
non-party
HOA Management Professionals, Inc.s
(HMP)
purported failure to produce business records
pursuant
to
a subpoena issued on December 29, 2023
. T
he hearing date
is set
for July 10, 2024.
On May 28, 2024,
HMP
filed a motion to quash the
December 29,
2023
deposition subpoena for production of business records
issued by Del Sol
. The hearing date is set for August 13, 2024.
Considering the relationship between Del Sols motion for contempt, and HMPs motion to quash its underlying basis, the Court
finds it in the interest of judicial efficiency and economy to continue Del Sols motion to be heard at the same time as HMPs related motion.
Therefore, on its own motion, the Court
CONTINUES
Del Sols
Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209)
to
August 13,
2024
at
8
:30
a
.m. in Department 78 of Stanley Mosk Courthouse.
Moving Party is ordered to give notice
.
DATED:
July
9
, 2024
__________________________
Hon.
Michelle C. Kim
Judge of the Superior Court
PLEASE TAKE NOTICE:
"
Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
"
If a party intends to
submit
on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party
submitting
.
"
Unless all parties
submit
by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
"
If the parties neither
submit
nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
JUSTIN SMITH VS ALLA ZORIKOVA, ET AL.
Jul 12, 2024 |
24STCV04100
Case Number:
24STCV04100
Hearing Date:
July 12, 2024
Dept:
32
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.:
24STCV04100
Hearing Date:
July 12, 2024
[
TENTATIVE] order RE:
defendant alla zorikovas demurrer to complaint
BACKGROUND
On February 20, 2024, Plaintiff Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong, and Joycelyn Yew. The complaint asserts causes of action for (1) violation of the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants run an illegal dog breeding operation and operate out of Defendant Lews home in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy from Defendants that turned out to be sick, dirty, and not properly socialized. Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to another buyer himself.
On June 20, 2024, Defendant Zorikova filed the instant demurrer to the complaint. Plaintiff has not filed an opposition.
DISCUSSION
Proof of electronic service shall include
all
of the following:
(1) The electronic service address and the residence or business address of the person making the electronic service.
(2) The date of electronic service.
(3) The name and electronic service address of the person served.
(4) A statement that the document was served electronically.
(Code Civ. Proc., § 1013b(b).)
The proof of service accompanying Defendants demurrer does not include the electronic service address of the person making the electronic service,
i.e.
, Defendant Zorikova. (See Code Civ. Proc., § 1013b(b)(1).) Furthermore, the proof of service is ambiguous as to whether the documents were served by mail or email. The proof attests that the documents were served on counsel for all parties who have appeared in this action as follows, on 06/18/2024 via email, but simultaneously states that documents were SENT VIA U.S. MAIL/EMAIL. If the documents were mailed, it would be improper for Defendant Zorikova to execute the service because she is a party to the action. (See Code Civ. Proc., § 1013a(a) [person executing mail service must be over the age of 18 years and
not a party to the cause
].)
The demurrer is overruled for lack of proper service.
CONCLUSION
Defendant Alla Zorikovas demurrer is OVERRULED.
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.: 24STCV04100
Hearing Date: July 12, 2024
[
TENTATIVE]
order RE:
defendant alla zorikovas motion to
quash service of summons
BACKGROUND
On February 20, 2024, Plaintiff
Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong,
and Joycelyn Yew. The complaint asserts causes of action for (1) violation of
the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition
Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants
run an illegal dog breeding operation and operate out of Defendant Lews home
in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs
as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy
from Defendants that turned out to be sick, dirty, and not properly socialized.
Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant
Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to
another buyer himself.
On June 21, 2024, Defendant Zorikova
filed the instant motion to quash based on defective service of the summons and
complaint. Plaintiff has not filed an opposition.
LEGAL STANDARD
[T]he court in which an action is pending
has jurisdiction over a party from the time summons is served on him as
provided by Chapter 4 (commencing with Section 413.10). (Code Civ. Proc, §
410.50(a).) [A] court acquires jurisdiction over a party by proper service of
process or by that party's general appearance. (
In re Jennifer O.
(2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a
substitute for proper service of process. (
Abers v. Rohrs
(2013) 217
Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to
quash service of summons on the ground that the court lacks jurisdiction. (Code
Civ. Proc., § 418.10(a).)
DISCUSSION
Even without proper service, a
defendant who makes a general appearance submits to the jurisdiction of the
court and waives any challenge to personal jurisdiction. (See
In re Jennifer
O., supra,
184 Cal.App.4th at p. 547;
ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 210.)
Code of Civil Procedure section 1014 lists
the acts which constitute a general appearance. (
Air Machine Com SRL v.
Superior Court
(2010) 186 Cal.App.4th 414, 425;
Humphrey v. Bewley
(2021) 69 Cal.App.5th 571, 580.) Section 1014 provides as follows: A defendant
appears in an action when the defendant answers,
demurs
, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396b, moves for reclassification pursuant to Section 403.040, gives the
plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant. (Code Civ. Proc., § 1014.)
Defendant Zorikova filed a demurrer
on June 20, 2024, thus making a general appearance and consenting to the
Courts jurisdiction. As a result, the motion to quash is moot.
CONCLUSION
Defendant Alla Zorikovas motion to
quash service of summons is DENIED.
Ruling
Tpine Leasing Capital L.P. vs. Jarnail Multani
Jul 10, 2024 |
23CECG03197
Re: Tpine Leasing Capital L.P. v. Jarnail Multani
Superior Court Case No. 23CECG03197
Hearing Date: July 10, 2024 (Dept. 501)
Motion: by Defendant to Set Aside Default and Default Judgment
Tentative Ruling:
To deny the motion to set aside default and default judgment without prejudice.
(Code Civ. Proc., § 473, subd. (b).)
Explanation:
No Copy of Proposed Pleading
Application for relief from a judgment or court order must be filed timely (within six
months of the judgment or order) and must be accompanied by a copy of the answer
or other proposed pleading to be filed. (Code Civ. Proc., § 473 subd. (b).)
Here, defendant’s default was taken October 19, 2023, and judgment was
entered against him on March 21, 2024. Defendant filed this motion on April 22, 2024.
Defendant’s application was timely. However, defendant did not provide a proposed
responsive pleading pursuant to code.
No Mistake, Inadvertence, Surprise or Excusable Neglect
A judgment may be vacated and so may the entry of default that preceded it.
(Code Civ. Proc., § 473 subd. (b).) The court is empowered to relieve a party “upon any
terms as may be just … from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect.” (Id.) This decision lies in the discretion of the court, and can only be exercised
if the moving party establishes a proper ground for relief, by the proper procedure, and
within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Here, defendant did not demonstrate that his failure to respond was due to
mistake, inadvertence, surprise or excusable neglect. He stated that he learned of the
default entered against him but “was not aware of the nature of any pending litigation.”
(Multani Decl., ¶ 4.) Defendant incorrectly stated that the default should be “set aside
due to his mistake…in not responding to the lawsuit.” (Id.) He described no specific
mistake, inadvertence, surprise or excusable neglect that led to him not responding.
Defendant briefly stated that he was improperly served, however did not establish it as a
valid reason for not responding to the Complaint.
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)
Ruling
Richard Bartel vs Chicago Title Insurance Company
Jul 10, 2024 |
16CV02814
16CV02814
BARTEL v. CHICAGO TITLE INSURANCE COMPANY
(UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS
Given the parties representation that they are finalizing a stipulation, no tentative will be
posted.
Page 3 of 3
Ruling
KAREN BANG, ET AL. VS DILL VETERINARY HOSPITAL, INC., ET AL.
Jul 10, 2024 |
22STCV28025
Case Number:
22STCV28025
Hearing Date:
July 10, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
karen bang
, et al.;
Plaintiffs,
vs.
dill veterinary hospital, inc.
, et al.;
Defendants
.
Case No.:
22STCV28025
Hearing Date:
July 10, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
plaintiffs motion to continue trial
MOVING PARTIES:
Plaintiffs Karen Bang and Linda Agajanian Otey
RESPONDING PARTIES:
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver
Motion to Continue Trial
The court considered the moving, opposition, and reply papers filed in connection with this motion.
DISCUSSION
Plaintiffs Karen Bang and Linda Agajanian Otey (Plaintiffs) move the court for an order continuing trial in this action, currently scheduled to begin on August 14, 2024, and all related deadlines.
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver (Defendants) have filed an opposition to Plaintiffs motion, stating that, while they do not oppose a brief trial continuance of 30-60 days, they oppose Plaintiffs request to continue all discovery and trial-related deadlines.
The court finds that Plaintiffs have shown good cause to continue the trial and all related deadlines based on (1) the unavailability of Plaintiffs lead counsel on August 14, 2024, (2) Plaintiffs counsels representation that the parties are in the process of scheduling various depositions, and (3) the courts consideration of the factors set forth in California Rules of Court, rule 3.1332, subdivision (d), including that (i) there have not been any prior continuances of trial, (ii) Defendants will not be unduly prejudiced by the continuance of trial and related deadlines, (iii) Plaintiffs lead counsel will be engaged in another multi-week trial, and (iv) the interests of justice favor the continuance.
(Cal. Rules of Ct., rule 3.1332, subds. (c)(3), (c)(6), (d)(2), (d)(5), (d)(8), (d)(10); Lipps Decl., ¶¶ 1, 2-3.)
The court therefore grants Plaintiffs motion and makes the orders set forth below.
ORDER
The court grants plaintiffs Karen Bang and Linda Agajanian Oteys motion to continue trial.
The court orders:
1.
The trial in this action is continued from August 14, 2024, to March 12, 2025, at 11:00 a.m., in Department 53.
2.
The Final Status Conference is continued from August 2, 2024, to February 27, 2025, at 8:30 a.m., in Department 53.
3.
All
discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.¿
4.
The parties and their counsel shall hold a meeting, conference call, or videoconference to discuss and try to settle all issues in the case no later than January 17, 2025.
The court orders plaintiffs Karen Bang and Linda Agajanian Otey to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 10, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
CALIFORNIA CREDITS GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FOSTER POULTRY FARMS, LLC, ET AL.
Jul 10, 2024 |
23STCV09536
Case Number:
23STCV09536
Hearing Date:
July 10, 2024
Dept:
54
Superior Court of California
County of Los Angeles
California Credits Group, LLC,
Plaintiff,
Case No.:
23STCV09536
vs.
Tentative Ruling
Foster Poultry Farms, LLC f/k/a Foster Poultry Farms, et al.,
Defendants.
Hearing Date: July 10, 2024
Department 54, Judge Maurice Leiter
Motion To Compel Further Responses to Requests for Production of Documents
Moving Party
: Plaintiff California Credits Group, LLC
Responding Party
: Defendant Foster Poultry Farms, LLC
T/R
:
THE MOTION IS GRANTED IN PART.
PLAINTIFF TO GIVE NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at
SMCdept54@lacourt.org
with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
Plaintiff California Credits Group, LLC sued defendants Foster Poultry Farms, LLC and Foster Farms, LLC on April 28, 2023 for breach of contract and breach of the covenant of good faith and fair dealing.
As alleged in its complaint, Plaintiff provides tax credit services with a primary focus on California Enterprise Zone credits. (Compl., ¶ 9.) Defendant Foster Poultry was one of Plaintiffs clients; Defendant Foster Farms acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 11-13.) Under the contract, Plaintiff would locate employees for Foster Poultry who, once employed, would generate tax credits for Foster Poultry based on Enterprise Zone economic incentives. (
Ibid.
) Foster Poultry agreed to pay Plaintiff a portion of the credits generated when the credits were utilized, that is, when they were actually applied to reduce Foster Poultrys tax obligations. (
Id.
, ¶ 14-15, Exhs. A-B [initial 2005 and amended 2007 contracts].)
The Contract anticipated the possibility that Foster Poultry might be acquired, and there may be tax credits that had been
generated
by Plaintiffs recommended hires, but not yet
utilized
. (
Id.
, ¶ 20.) Those credits utility might be cut off by an acquisition. (
Id.
, ¶¶ 21-22.)
In that case, the contract required that all pending credits be deemed utilized, and Plaintiff paid for their use, upon Foster Poultrys acquisition. (
Id.
, ¶ 22.)
The private equity firm Atlas Holdings, Inc. acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 4-5.) The transaction was structured so that Foster Poultrys co-defendant, Foster Farms, acquired Foster Poultry, and Atlas in turn acquired Foster Farms. (
Id.
, ¶ 5.) Plaintiff alleges that when Atlas acquired Foster Poultry, it cut off $70 million in outstanding, unutilized tax credits generated by Plaintiff. (
Id.
, ¶ 30.)
On May 17, 2024, Plaintiff filed the instant motion to compel further responses to its Requests for Production (Set One) propounded on Foster Poultry.
ANALYSIS
Plaintiff moves for further responses to its Requests for Production (RPDs) Nos. 9-11 and 40. Plaintiff frames these as requests for communications relating to the June 2022 reorganizing transactions that suspended the tax credits allocated by [Plaintiff]. (MPA, 4:22-23.) Plaintiff contends these documents must be produced because they are critical to understanding the scope and significance of the June 2022 transactions and determining whether they constitute a Reorganization under the parties Agreements. (
Id.
, 26-28.)
Defendant argues that communications involving the June 2022 transactions are irrelevant to whether the transaction was a Reorganization for purposes of the parties contract. Defendant contends that all Plaintiff needs are the documents governing the transactions namely, the June 2022 Purchase Agreement (2022 Agreement). Defendant already has produced the 2022 Agreement. Defendant also objects that the requests are unduly burdensome, Plaintiff has not properly met and conferred about them, and, to the extent some portion of the materials might be relevant, Plaintiffs Requests should be narrowed after Plaintiff obtains its still-outstanding, more reasonable discovery.
Defendant has produced to Plaintiff excerpts of the 2022 Agreement that Plaintiff contends triggered the reorganization provisions of the Contract. Defendant contends this satisfies Plaintiffs asserted need to evaluate whether Defendants reorganization triggered the Contract.
Defendant cannot unilaterally identify what evidence Plaintiff needs. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Citation.] ... [T]he scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of reason, logic and common sense. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 16111612, 56 Cal.Rptr.2d 341.)
Communications surrounding the execution of the 2022 Agreement may lead to admissible evidence about how its execution was expected to impact the terms of the Contract. Plaintiff may explore evidence of how the 2022 Agreement was executed, and whether those facts are relevant to the alleged breach.
Defendants have not shown undue burden.
Some of the phrasing of Plaintiffs requests is overbroad; the Court will sustain Defendants objections in part:
The Court grants Plaintiffs motion and orders Defendant to provide Code-compliant responses to all the disputed requests within thirty (30) days of this ruling, except:
1. Defendant need only produce documents created between June 1, 2021 and the filing of the complaint, and
2. The terms in connection with and in connection with or following are narrowed to as a result of for purposes of this order.
The Court finds Defendant was substantially justified in opposing Plaintiffs motion. The Court awards no sanctions.
Ruling
VALLEY FRESH PRODUCE, INC. vs JOSE BARRAGAN, et al
Jul 10, 2024 |
20CV01416
20CV01416
VALLEY FRESH PRODUCE, INC. v. BARRAGAN
(UNOPPOSED) MOTIONS TO BE RELIEVED AS COUNSEL
The unopposed motions to be relieved as counsel filed by Dianna L. Albini are granted as
they comply with California Rules of Court, Rule, 3.1362. The court will sign the proposed
orders.
Page 1 of 3
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
AMY A. MAXWELL VS BMW OF NORTH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
24LBCV00120
Case Number:
24LBCV00120
Hearing Date:
July 9, 2024
Dept:
S27 Plaintiff has discovery motions scheduled for 7/09/24, 7/18/24, and 7/23/24.
There is also a status conference re: appointment of a discovery referee scheduled for 7/09/24.
In the interest of efficiency, the Court continues the 7/09/24 and 7/18/24 motions to 7/23/24, to be heard concurrently with the currently scheduled motion to deem RFAs admitted.
The Court takes off calendar the status conference re: appointment of discovery referee.
Upon further review, all pending motions are related motions to compel responses to initial discovery (and deem RFAs admitted), based on the contention that Defendant has not served any timely responses to outstanding discovery.
The Court finds this is not the type of discovery dispute that warrants appointment of a referee.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Preview
FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS x MICHAEL LI, individually and derivatively on behalf of FLUSHING ENDOSCOPY CENTER, : VERIFIED ANSWER LLC, Plaintiff, Index No. 719600/2019 -against- KING-CHEN HON, ALAN C. YAO, JACKSON KUAN, LANA CHOY, AND FLUSHING ENDOSCOPY CENTER, LLC, Defendants. x Defendants King-Chen Hon, Alan C. Yao, Jackson Kuan, Lana Choy, and Flushing Endoscopy Center, LLC (collectively the "Defendants"), by their attorneys, Garfunkel Wild, P.C., answer the Plaintiff Michael Li's Verified Complaint, dated November 15, 2019 ("Complaint"), as follows: 1. Defendants deny the truth of the allegations contained in paragraph I of the Complaint, except admit only that the Plaintiff had been a member and manager of Flushing Endoscopy Center, LLC (the "Center"). Defendants deny knowledge and information sufficient to form a belief as to the truth of the allegations concerning Plaintiffs residence. 2. Defendants admit the allegations contained in paragraph 2,of the Complaint. 3. Defendants admit the allegations contained in paragraph 3 of the Complaint. 4. Defendants admit the allegations contained in paragraph 4 of the Complaint. 5. Defendants admit the allegations contained in paragraph 5 of the Complaint. 6. Defendants admit the allegations contained in paragraph 6 of the Complaint. 5571210v.2 1 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 7. Defendants deny the allegations contained in paragraph 7 of the Complaint. 8. Defendants deny the allegations contained in paragraph 8 of the Complaint. 9. Defendants admit the allegations contained in paragraph 9 of the Complaint. 10. Defendants admit the allegations contained in paragraph 10 of the Complaint, and respectfully refer the Court to the "operating agreement, as amended" alleged therein for the true and correct terms, and legal effects, if any. 11. Defendants deny the allegations contained in paragraph 11 of the Complaint, except admit only that Plaintiff previously owned 34% of the membership interests of the Center. 12. Defendants admit the allegations contained in paragraph 12 of the Complaint. 13. Defendants deny the allegations contained in paragraph 13 of the Complaint, and respectfully refer the Court to the operating agreement for the true and correct terms, and legal effects, if any, thereof. 14. Defendants deny the allegations contained in paragraph 14 of the Complaint, and respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and legal effects, if any, thereof 15. Defendants deny the allegations contained in paragraph 15 of the Complaint, and respectfully refer the Court to the "First Amendment to the Operating Agreement" for the true and correct terms, and legal effects, if any, thereof. 16. Defendants deny the allegations contained in paragraph 16 of the Complaint, and respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and legal effects, if any, thereof. 2 5571210 v.2 2 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 17. Defendants deny the allegations contained in paragraph 17 of the Complaint, and respectfully refer the Court to the "Third Amendment to the Operating Agreement" for the true and correct terms, and legal effects, if any, thereof 18. Defendants deny the allegations contained in paragraph 18 of the Complaint, and respectfully refer the Court to the "Notice" alleged therein for the true and correct terms, and legal effects, if any, thereof 19. Defendants deny the allegations contained in paragraph 19 of the Complaint. 20. Defendants deny the allegations contained in paragraph 20 of the Complaint, and respectfully refer the Court to the "Notice," "Operating Agreement," and "Third Amendment to the Operating Agreement" alleged therein for the true and correct terms, and legal effects, if any, thereof 21. Defendants deny the allegations contained in paragraph 21 of the Complaint, except admit only that the Center held a "Special Meeting" to discuss Plaintiff's expulsion from the Center. 22. Defendants deny the allegations contained in paragraph 22 of the Complaint, except admit only that Plaintiff voted against his own expulsion from the Center. 23. Defendants deny the allegations contained in paragraph 23 of the Complaint. 24. Defendants deny the allegations contained in paragraph 24 of the Complaint. 25. Defendants deny the allegations contained in paragraph 25 of the Complaint. 26. Defendants deny the allegations contained in paragraph 26 of the Complaint. 27. In response to paragraph 27 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 28. Defendants deny the allegations contained in paragraph 28 of the Complaint. 3 5571210v2 3 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 29. Defendants deny the allegations contained in paragraph 29 of the Complaint, and respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and legal effects, if any, thereof 30. Defendants deny the allegations contained in paragraph 30 of the Complaint. 31. Defendants deny the allegations contained in paragraph 31 of the Complaint. 32. Defendants deny the allegations contained in paragraph 32 of the Complaint. 33. Defendants deny the allegations contained in paragraph 33 of the Complaint. 34. In response to paragraph 34 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 35. Defendants deny the allegations contained in paragraph 35 of the Complaint. 36. Defendants deny the allegations contained in paragraph 36 of the Complaint. 37. In response to paragraph 37 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 38. Defendants deny the allegations contained in paragraph 38 of the Complaint, and respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms, and legal effects, if any, thereof 39. Defendants deny the allegations contained in paragraph 39 of the Complaint, and respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and legal effects, if any, thereof 40. Defendants deny the allegations contained in paragraph 40 of the Complaint, and respectfully refer the Court to the "Operating Agreement" and "Chan Redemption Agreement" for the true and correct terms, and legal effects, if any, thereof. 5571210v.2 4 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 41. Defendants deny the allegations contained in paragraph 41 of the Complaint, and respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms, and legal effects, if any, thereof 42. Defendants deny the allegations contained in paragraph 42 of the Complaint, and respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms, and legal effects, if any, thereof. 43. Defendants deny the allegations contained in paragraph 43 of the Complaint. 44. Defendants deny the allegations contained in paragraph 44 of the Complaint, and respectfully refer the Court to the "Chan Redemption Agreement" for the true and correct terms, and legal effects, if any, thereof. 45. In response to paragraph 45 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 46. Defendants neither admit nor deny the allegations contained in paragraph 46 of the Complaint, as it states a conclusion of law to which no response is required. 47. Defendants deny the allegations contained in paragraph 47 of the Complaint. 48. Defendants deny the allegations contained in paragraph 48 of the Complaint. 49. Defendants deny the allegations contained in paragraph 49 of the Complaint. 50. In response to paragraph 50 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 51. Defendants deny the allegations contained in paragraph 51 of the Complaint. 52. Defendants deny the allegations contained in paragraph 52 of the Complaint. 53. Defendants deny the allegations contained in paragraph 53 of the Complaint. 54. Defendants deny the allegations contained in paragraph 54 of the Complaint. 5 5571210v.2 5 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 55. In response to paragraph 55 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 56. Defendants deny the allegations contained in paragraph 56 of the Complaint. 57. Defendants deny the allegations contained in paragraph 57 of the Complaint. 58. Defendants deny the allegations contained in paragraph 58 of the Complaint. 59. Defendants deny the allegations contained in paragraph 59 of the Complaint. 60. In response to paragraph 60 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 61. Defendants deny the allegations contained in paragraph 61 of the Complaint. 62. Defendants deny the allegations contained in paragraph 62 of the Complaint. 63. Defendants deny the allegations contained in paragraph 63 of the Complaint. 64. In response to paragraph 64 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 65. Defendants deny the allegations contained in paragraph 65 of the Complaint, except admit only that Plaintiff had been a member of the Center. 66. Defendants neither admit nor deny the allegations contained in paragraph 66 of the Complaint, as it states a conclusion of law to which no response is required. 67. Defendants deny the allegations contained in paragraph 67 of the Complaint, except admit only that Plaintiff had been a past member and manager of the Center. 68. Defendants deny the allegations contained in paragraph 68 of the Complaint. 69. Defendants deny the allegations contained in paragraph 69 of the Complaint. 70. Defendants deny the allegations contained in paragraph 70 of the Complaint. 6 5571210v.2 6 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 71. In response to paragraph 71 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 72. Defendants deny the allegations contained in paragraph 72 of the Complaint, and respectfully refer the Court to the "Operating Agreement" for the true and correct terms, and legal effects, if any, thereof. 73. Defendants deny the allegations contained in paragraph 73 of the Complaint. 74. Defendants deny the allegations contained in paragraph 74 of the Complaint. 75. Defendants deny the allegations contained in paragraph 75 of the Complaint. 76. In response to paragraph 76 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 77. Defendants deny the allegations contained in paragraph 75 of the Complaint, and respectfully refer the Court to the alleged notice given to the New York State Department of Health for the true and correct terms, and legal effects, if any, thereof. 78. Defendants deny the allegations contained in paragraph 78 of the Complaint. 79. Defendants deny the allegations contained in paragraph 79 of the Complaint. 80. Defendants deny the allegations contained in paragraph 80 of the Complaint. 81. In response to paragraph 81 of the Complaint, Defendants repeat and reallege the above answers as if fully set forth herein. 82. Defendants deny the allegations contained in paragraph 82 of the Complaint, except admit only that Plaintiff had been a member and manager of the Center. 83. Defendants deny the allegations contained in paragraph 83 of the Complaint, except admit only that Defendants are aware that Plaintiff had been a member and manager of the Center. 7 5571210v.2 7 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 84. Defendants deny the allegations contained in paragraph 84 of the Complaint. 85. Defendants deny the allegations contained in paragraph 84 of the Complaint. FIRST AFFIRMATIVE DEFENSE 86. The Complaint fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 87. The Plaintiffs claims must be dismissed, in whole or in part, based on the documentary evidence, including, but not limited to, any contractual defenses or conditions, or the lack of documentary evidence. THIRD AFFIRMATIVE DEFENSE 88. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiff s failure to mitigate damages. FOURTH AFFIRMATIVE DEFENSE 89. The Plaintiffs claims must be dismissed, in whole or in part, as a result of the Plaintiffs breach of, or failure to satisfy, material conditions precedent. FIFTH AFFIRMATIVE DEFENSE 90. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiffs unclean hands and breaches of his own fiduciary duties owed to the Center. SIXTH AFFIRMATIVE DEFENSE 91. The Plaintiffs claims must be dismissed, in whole or in part, based on Plaintiff s lack of standing as a former member of the Center. SEVENTH AFFIRMATIVE DEFENSE 92. The Plaintiffs claims must be dismissed, in whole or in part, based on the absence of a person who should be a party. 8 5571210v.2 8 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 WHEREFORE, the Defendants respectfully request that the Court issue a judgment dismissing all claims against them, and awarding Defendants such other and further relief as the Court deems just and proper. Dated: Great Neck, New York January 3, 2019 GARFUNKEL WILD, P.C. Attorneysfor Defendants By: Andrew L. fwerljng 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 To: Jeffrey Klarsfeld, Esq. PLATTE, KLARSFELD & LEVINE, LLP Attorneysfor Plaintiff 10 East 40th Street, 46th Floor New York, New York 10016 Tel: (212) 726-4423 9 5571210v.2 9 of 10 FILED: QUEENS COUNTY CLERK 01/03/2020 06/02/2020 11:02 04:05 AM PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 5 26 RECEIVED NYSCEF: 01/03/2020 06/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ic MICHAEL LI, individually and derivatively on behalf of FLUSHING ENDOSCOPY CENTER, VERIFICATION LLC, Plaintiff; Index No. 719600/2019 -against- K1NG-CHEN HON, ALAN C. YAO, JACKSON KUAN, LANA CHOY, AND FLUSHING ENDOSCOPY CENTER, LLC, Defendants. STATE OF NEW YORK ) ) ss: COUNTY OF QUEENS ) KING-CRENG HON, M.D., being duly sworn, deposes, and says: I am one of the managing members of Defendant Flushing,Endoscopy Center, LLC, and an individually named Defendant in the within action, I have read the, foregoing Answer and know its contents. It is true to my knowledge, except as to matters alleged upon information and belief, which matters I believe to be true: A • eciS ION& D. Svvorn to before me this 2.-4 day of December, 2019 PERSAUD KNEEWkWAITE NOTARY PUBLIC, STATE'OF NEW ReglstratforNo. 01PE625884Y6On Qualified in Queens County COmMisSinn cyttir. And' (17 20 a NOTARY PUBLIC 5575348v.1 10 of 10