On June 27, 2016 a
Exhibit,Appendix
was filed
involving a dispute between
Cherry Hill Gourmet, Inc.,
and
Lundy'S Management Corp.,
for Real Property - Other (Yellowstone Injunction)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 807 RECEIVED NYSCEF: 06/29/2021
EXHIBIT M
FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016
NYSCEF DOC.
NYSCEF DOC. NO.NO. 541
807 RECEIVED NYSCEF:
RECEIVED NYSCEF: 06/29/2021
06/17/2020
SUPREME COURT OF THE STATE OF NEW Y ORK
COUNTY OF KINGS
COMMERCIAL PART 12
CHERRY HILL GOURMET, INC.,
Plaintiff(s) Index: 510844/16
-against-
DECISION/ORDER
LUNDY'S MANAGEMENT CORP.,
Defendant(s) Motion No. 9 & 10
_. .. --------------------------------------x
LUNDY'S MANAGEMENT CORP.,
Third-Party Plaintiff(s)
-against-
SHEEPSHEAD RESTAURANT ASSOCIATES, INC.,
Third-Party Defendant(s)
----- --¬---------------------------------------- --x
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this
motion for partial judgment the second cause of action in the Third-
summary dismissing
Party Complaint and motion to amend the Third Party Complaint
PAPERS NUMBERED
Notice of Motion and Affidavits Annexed 1
Notice of Cross Motion and Affidavits Annexed 2
Answering Affidavits 3
Replying Affidavits 4, 5 & 6
Sur-Reply Affidavits
Upon the foregoiñg cited papers, the Decision/Order on this motion is as follows:
Third-party defendant moves to dismiss the second cause of action in the Third-Party
Complaint which seeks a declaration that the penalties contained in the Confidential Settlement
Outline dated November 2015 are unenforceable and void as against public policy. The third-
18,
party plaintiff cross moves to amend the Third-Party Complaint.
Addressing the cross-motion first, the motion to serve and file an Amended Third-Party
Complaint must be granted. "Leave to amend a pleading should generally be freely granted (see
CPLR 3025[b]). In the absence of prejudice or surprise to the oppasing party, a motion to amend
FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016
NYSCEF
NYSCEF DOC.
DOC. NO.NO. 541
807 RECEIVED NYSCEF: 06/17/2020
RECEIVED NYSCEF: 06/29/2021
should be granted unless the proposed amendment is palpably insufficient or patently devoid of
238)."
merit (see Lucido v Mancuso, 49 A.D.3d 220, 226-227, 851 N.Y.S.2d (Wells Fargo Bank,
N.A. v Confino, 175 A.D.3d 536, 106 N.Y.S.3d 125, 2019 N.Y. Slip Op. 06115 [2nd Dept. 2019];
see also US Bank National Association v Murillo, 171 A.D.3d 984, 98 N.Y.S.3d 115, 2019 N.Y.
Slip Op. 02743 [2nd Dept. 2019]).
The motion to dismiss the second cause of action in the Third-Party Complaint is denied
without prejudice to renew the motion as against the Amended Third-Party Complaint.
Dated: June 17, 2020
LDM
HON. LARRY D. MARTIN
J.S.C.
Document Filed Date
June 29, 2021
Case Filing Date
June 27, 2016
Category
Real Property - Other (Yellowstone Injunction)
Status
Disposed-Court Date/Application Pending
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FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 807 RECEIVED NYSCEF: 06/29/2021 EXHIBIT M FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016 NYSCEF DOC. NYSCEF DOC. NO.NO. 541 807 RECEIVED NYSCEF: RECEIVED NYSCEF: 06/29/2021 06/17/2020 SUPREME COURT OF THE STATE OF NEW Y ORK COUNTY OF KINGS COMMERCIAL PART 12 CHERRY HILL GOURMET, INC., Plaintiff(s) Index: 510844/16 -against- DECISION/ORDER LUNDY'S MANAGEMENT CORP., Defendant(s) Motion No. 9 & 10 _. .. --------------------------------------x LUNDY'S MANAGEMENT CORP., Third-Party Plaintiff(s) -against- SHEEPSHEAD RESTAURANT ASSOCIATES, INC., Third-Party Defendant(s) ----- --¬---------------------------------------- --x Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion for partial judgment the second cause of action in the Third- summary dismissing Party Complaint and motion to amend the Third Party Complaint PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1 Notice of Cross Motion and Affidavits Annexed 2 Answering Affidavits 3 Replying Affidavits 4, 5 & 6 Sur-Reply Affidavits Upon the foregoiñg cited papers, the Decision/Order on this motion is as follows: Third-party defendant moves to dismiss the second cause of action in the Third-Party Complaint which seeks a declaration that the penalties contained in the Confidential Settlement Outline dated November 2015 are unenforceable and void as against public policy. The third- 18, party plaintiff cross moves to amend the Third-Party Complaint. Addressing the cross-motion first, the motion to serve and file an Amended Third-Party Complaint must be granted. "Leave to amend a pleading should generally be freely granted (see CPLR 3025[b]). In the absence of prejudice or surprise to the oppasing party, a motion to amend FILED: KINGS COUNTY CLERK 06/29/2021 12:31 PM INDEX NO. 510844/2016 NYSCEF NYSCEF DOC. DOC. NO.NO. 541 807 RECEIVED NYSCEF: 06/17/2020 RECEIVED NYSCEF: 06/29/2021 should be granted unless the proposed amendment is palpably insufficient or patently devoid of 238)." merit (see Lucido v Mancuso, 49 A.D.3d 220, 226-227, 851 N.Y.S.2d (Wells Fargo Bank, N.A. v Confino, 175 A.D.3d 536, 106 N.Y.S.3d 125, 2019 N.Y. Slip Op. 06115 [2nd Dept. 2019]; see also US Bank National Association v Murillo, 171 A.D.3d 984, 98 N.Y.S.3d 115, 2019 N.Y. Slip Op. 02743 [2nd Dept. 2019]). The motion to dismiss the second cause of action in the Third-Party Complaint is denied without prejudice to renew the motion as against the Amended Third-Party Complaint. Dated: June 17, 2020 LDM HON. LARRY D. MARTIN J.S.C.