Motion to Dismiss in K.Y.W. Enterprise Trust v. Les 106 Riv, Llc| Trellis.Law

On January 01, 2017 a Motion-Secondary was filed involving a dispute between K.Y.W. Enterprise Trust, and Les 106 Riv, Llc, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 07/15/2021 05:49 PM INDEX NO. 653071/2017
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/15/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
K.Y.W ENTERPRISE TRUST, Civil Action No.:
653071/2017
Plaintiff,
-against- Attorney Affirmation in
Support
LES 106 RIV, LLC,
Defendant.
------------------------------------------------------------------------X
ABE GEORGE, of the Law Offices of Abe George, P.C., an attorney duly admitted to

practice before the Courts of this State hereby affirms the following to be true under the penalties

of perjury:

1. I am the attorney for the Defendant LES 106 RIV, LLC, and I make this Affirmation

upon my personal knowledge and in support of the Defendant’s motion to strike Plaintiff’s note of

issue pursuant to 22 NYCRR § 202.21(e) and further dismiss Plaintiffs’ claims pursuant to CPLR

3216, on the grounds of the unreasonable failure of Plaintiffs to prosecute the above-captioned

matter within one year of joinder of issue in this matter and to file a valid note of issue within 90

days of being served a demand to prosecute.

2. There are no prior applications by Defendant that seek the relief sought herein.

Relevant Procedural History

3. Plaintiff filed a Summons and Complaint against the Defendant over 4 years ago

on June 6, 2017. See NYSCEF Doc. No. 1.

4. Defendant filed a Verified Answer with Counter-Claim(s) on August 1, 2017. See

NYSCEF Doc. No. 3.

5. Plaintiff filed an Answer to Defendant’s counterclaims on August 29, 2017. See

NYSCEF Doc. No. 12.

6. Four compliance conferences (NYSCEF Doc. No. 13, 14, 16, 18) were held from

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August 2017 until November 6, 20191.

7. The last compliance conference held in this case occurred on January 16, 2020,

when the Court issued an Order stating “The Court has considered the status of this case and

determined that the Court's order of 11/8/2019 has not been complied with in that depositions have

not been completed. Accordingly it is ORDERED that the parties appear for depositions on or

before March 31, 2020.” See Exhibit 1: January 16, 2020 order (NYSCEF Doc. No. 23). At

that juncture neither Plaintiff or defendant’s deposition had been taken. The order also said that

the note of issue (“NOI”) needed to be filed before April 24, 2020. See Exhibit 1.

8. From January 15, 2020 until this year I sent over 64 e-mails to Mr. Wong, counsel

for the Plaintiff, trying to either settle this case or move discovery forward. Mr. Wong failed to

pursue meaningful settlement discussions or comply with the January 16, 2020 order and move

discovery forward with depositions. See Exhibit 2: Screen Shot of 64 e-mails to Mr. Wong.

9. On or about July 2, 2020, I was informed by Mr. Wong that his client Mr. Wu

passed away. According to Plaintiff’s complaint Mr. Wu was the principle of the Plaintiff trust

entity and is a material witness to Plaintiff’s claims and defendant’s counterclaims. See NYSCEF

Doc. No. 1, No.3)

10. On or about March 31, 2021, realizing that Plaintiff was unwilling and, in all

likelihood, unable to proceed with discovery (given the death of Mr. Wong’s client) your

undersigned sent Plaintiff’s counsel a certified letter demanding that Plaintiff prosecute this matter

or face dismissal. See Exhibit 3: Defendant’s March 31, 2021 letter. According to USPS records

the certified letter was by Plaintiff’s counsel on or about April 3, 2021. See Exhibit 4: USPS April

3rd receipt.

11. On or about April 6, 2021, Mr. Wong sent an e-mail to your undersigned requesting

1
On November 6, 2019 your undersigned substituted for defendant’s original counsel.

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that we speak between 1PM and 2PM that same day, whereupon I e-mailed Mr. Wong back telling

him I was busy with depositions on another matter and asked if we could speak on April 7, 2021-

-- Mr. Wong never responded back.

12. On or about June 30, 2021 Plaintiff filed a Note of Issue in this matter past the

Court mandated deadline. See Exhibit 5: Note of Issue (NYSCEF Doc. 26).

13. Plaintiff did not comply with the January 16, 2020 Court order in that depositions

of either Plaintiff or defendants were never taken. See Exhibit 1. Moreover, Plaintiff never

obtained defendant’s consent to the extend the April 24, 2020 “NOI” date as specified in the

January 16, 2020 order. See Exhibit 1.

LEGAL ARGUMENT

I. Plaintiff’s Note of Issue Must Be Stricken Pursuant to 22 NYCRR § 202.21(e)

14. Citing Section 202.21(e) of the Uniform Rules, the First Department has time after

time vacated a Note of Issue where as in this instance the Certificate of Readiness is incorrect as

to material assertions. See Gomes v. Valentine Realty LLC, 32 A.D.3d 699 (1st Dept. 2006) (Note

of Issue vacated where certificate of readiness contained “multiple incorrect assertions”); Vargas

v. Villa Josefa Realty Corp., 28 A.D.3d 389 (1st Dept. 2006) (Note of Issue vacated where

independent medical examination had not yet been completed); Ortiz v. Arias, 285 A.D.2d 390

(1st Dept. 2001) (Note of Issue vacated where certificate of readiness erroneously stated that all

physical examinations had been completed.)

15. Implicit in the uniform Rule quoted above is the liberal idea that a party who timely

moves to vacate a Note of Issue need only show that either a material fact in the certificate of

readiness is incorrect, or that the certificate of readiness fails to comply with the statutory

requirements in some material respect. Vargas, supra; Cromer v. Yellen, 268 A.D.2d 381 (1st Dept.

2000); Audiovox Corp. v. Benyamini, 264 A.D.2d 135 (2nd Dept. 2000). The party moving to

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vacate the Note of Issue does not have to show that unusual or unanticipated circumstances,

coupled with substantial prejudice, warrant vacature. Rather, and so long as the motion is timely,

a party need only bring to light the grounds on which a case is not ready for trial. Audiovoz, supra.

In Gomes v. Valentine Realty, LLC, 32 A.D.3d 699, 822 N.Y.S.2d (1st Dept. 2006), the Appellate

Division, First Department struck the plaintiff’s Note of Issue because the certificate of readiness

contained material incorrect assertions including that all discovery was complete. Id. at 699

16. Further, a Note of Issue is premature when discovery remains outstanding.

Friedman & Kaplan v. Hoffman, 166 A.D.2d 188, 560 N.Y.S.2d 430 (1st Dept. 1990). Thus, a

motion to vacate a note of issue must be granted when a defendant has not completed discovery.

See Frierson v. Concourse Plaza Associate, 189 A.D.2d 609, 592 N.Y.S.2d 309 (1st Dept. 1993)

17. In this case, contrary to what the Certificate of Readiness indicates, discovery as

set forth above, which is material and necessary to the defense and prosecution of the

counterclaims in this action, has not been completed---the Plaintiff has not been deposed in this

matter, therefore the note of issue must be dismissed. Moreover, Plaintiff in all likelihood can not

proceed given that the material witness (to both Plaintiff’s case and Defendant’s counter claims)

Mr. Wu, principle of Plaintiff’s entity, has passed away.

18. Moreover, Plaintiff never obtained the consent of Defendant to extend the Court’s

order which designated April 24, 2020 as the date by which Plaintiff needed to file the NOI.

II. Plaintiff’s Claims Must be Dismissed Pursuant to CPLR 3216(b)

19. NY CPLR Rule 3216 provides:

(a) Where a party unreasonably neglects to proceed generally in an action or
otherwise delays in the prosecution thereof against any party who may be liable to
a separate judgment, or unreasonably fails to serve and file a note of issue, the court,
on its own initiative or upon motion, with notice to the parties, may dismiss the
party's pleading on terms. Unless the order specifies otherwise, the dismissal is
not on the merits.
(b) No dismissal shall be directed under any portion of subdivision (a) of this rule
and no court initiative shall be taken or motion made thereunder unless the

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following conditions precedent have been complied with:
(1) Issue must have been joined in the action;
(2) One year must have elapsed since the joinder of issue or six months
must have elapsed since the issuance of the preliminary court conference
order where such an order has been issued, whichever is later;
(3) The court or party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the party
against whom such relief is sought to resume prosecution of the action and
to serve and file a note of issue within ninety days after receipt of such
demand, and further stating that the default by the party upon whom such
notice is served in complying with such demand within said ninety day
period will serve as a basis for a motion by the party serving said demand
for dismissal as against him or her for unreasonably neglecting to proceed.
Where the written demand is served by the court, the demand shall set forth
the specific conduct constituting the neglect, which conduct shall
demonstrate a general pattern of delay in proceeding with the litigation.
(c) In the event that the party upon whom is served the demand specified in
subdivision (b)(3) of this rule serves and files a note of issue within such ninety day
period, the same shall be deemed sufficient compliance with such demand and
diligent prosecution of the action; and in such event, no such court initiative shall
be taken and no such motion shall be made, and if taken or made, the court initiative
or motion to dismiss shall be denied.
(d) After an action has been placed on the calendar by the service and filing of a
note of issue, with or without any such demand, provided, however, if such demand
has been served, within the said ninety day period, the action may not be dismissed
by reason of any neglect, failure or delay in prosecution of the action prior to the
said service and filing of such note of issue.
(e) In the event that the party upon whom is served the demand specified in
subdivision (b)(3) of this rule fails to serve and file a note of issue within such
ninety day period, the court may take such initiative or grant such motion unless
the said party shows justifiable excuse for the delay and a good and meritorious
cause of action.
(f) The provisions of this rule shall not apply to proceedings within rule thirty-four
hundred four.

20. Clearly in this instance Plaintiffs have unreasonably neglected to proceed in this

action and the court should dismiss Plaintiff’s complaint. Plaintiff filed this case over 4 years ago

and have taken limited steps to move this case forward.

21. If this Court strikes Plaintiff’s illusory note of issue, then Plaintiff’s will have failed

to file a valid NOI within the 90 day period required of them pursuant to 3216(b).

22. Defendant has complied with all of the statutory requirements of CPLR 3216(b) to

warrant dismissal in this matter. One (1) year has elapsed since joinder of issue and Plaintiffs have

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failed to file a valid note of issue within 90 days.

23. Once the moving party establishes wanton delay and compliance with 3216(b) then

it is up to the non-moving party to show a justifiable excuse for the delay and a meritorious cause

action. Even arguendo Plaintiff can show a meritorious cause of action Plaintiff will not be able to

demonstrate why they took no action on this matter since January 16, 2020. See, Baczkowski v.

D.A. Collins Constr. Co., 89 N.Y.2d 499 (Court of Appeals, 1997)., where the court held that if

plaintiff fails to file a note of issue within the 90-day period, the court may take such initiative or

grant such motion to dismiss unless the defaulting party shows justifiable excuse for the delay and

a good and meritorious cause of action. N.Y. C.P.L.R. 3216(e).

WHEREFORE, defendants respectfully request Plaintiff’s note of issue be stricken and

that Plaintiff’s case be dismissed pursuant to CPLR § 3216(b), together with the costs and

disbursements of this action and such other and further relief as this Court may deem just and

proper.

Dated: New York, New York
July 15, 2021

LAW OFFICES OF ABE GEORGE, P.C.

__/s/___________________
By: Abe George, Esq.
Attorney for Defendants
99 Wall Street, Suite 3404 Floor
New York, NY 10005
(P) (212) 498-9803
(F) (646) 558-7533
Email: abe@abegeorge.lawyer

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Sabrina Kraus Track Judge’s New Case

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Document Filed Date

July 15, 2021

Case Filing Date

January 01, 2017

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Motion-Secondary: K.Y.W. Enterprise Trust v. Les 106 Riv, Llc

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