On July 14, 2018 a
Letter,Correspondence
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
Jeremy C. Vest Chrysler Center
212 692 6718 666 Third Avenue
jvest@mintz.com New York, NY 10017
212 935 3000
mintz.com
April 20, 2022
Via NYSCEF
Hon. Linda S. Jamieson
Supreme Court of the State of New York
Westchester County
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 106010
Re: Goldstein et al. v. Houlihan/Lawrence Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Justice Jamieson:
I write further to the March 1, 2022 status conference to renew Plaintiffs’ request for a pre-
motion conference to address whether Defendant has leave to move, on May 3, 2022 as
provisionally scheduled by the Fourteenth Report and Recommendation, to modify the certified
Class to exclude buyer Class members on the ground that they did not pay a sales commission.
In opposing class certification, Defendant argued, “the Court should remove all buyers
from the class, because they did not pay a commission.” Dkt. 963 at 25, n. 21. Plaintiffs replied,
in a section devoted to this issue, “Buyers are proper Class members” because their right to
disgorge HL’s commission “does not depend on their having paid it.” Dkt. 1037 at 16. The Court
rejected Defendant’s argument by certifying a class of buyers and sellers. Dkt. 1072 at 19, n. 3.
Defendant’s requested motion to modify is a restyled motion to reargue the Court’s class
certification order made beyond the 30-day limit set by CPLR 2221(d)(3). Skarla v. NPSFT LLC,
2016 N.Y. Misc. LEXIS 284 at *15 (Queens Cnty. Jan. 27, 2016) (“A party may not, by the simple
expedient of styling his or her application in some alternative form, circumvent the 30-day time
limit for bringing a motion to reargue.”). While the Court “has jurisdiction to consider its prior
order regardless of the statutory time limits,” Itzkowitz v. King Kullen Grocery Co., 22 A.D.3d
636, 638 (2d Dep’t 2005), there is no reason to permit Defendant’s late filing to give it a second
bite of the apple when it had three years to prepare to oppose Plaintiffs’ class certification motion.
Respectfully,
Jeremy Vest
cc: Counsel for Defendant (via NYSCEF)
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Document Filed Date
April 20, 2022
Case Filing Date
July 14, 2018
Category
Commercial Division
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Jeremy C. Vest Chrysler Center 212 692 6718 666 Third Avenue jvest@mintz.com New York, NY 10017 212 935 3000 mintz.com April 20, 2022 Via NYSCEF Hon. Linda S. Jamieson Supreme Court of the State of New York Westchester County 111 Dr. Martin Luther King, Jr. Blvd. White Plains, NY 106010 Re: Goldstein et al. v. Houlihan/Lawrence Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Justice Jamieson: I write further to the March 1, 2022 status conference to renew Plaintiffs’ request for a pre- motion conference to address whether Defendant has leave to move, on May 3, 2022 as provisionally scheduled by the Fourteenth Report and Recommendation, to modify the certified Class to exclude buyer Class members on the ground that they did not pay a sales commission. In opposing class certification, Defendant argued, “the Court should remove all buyers from the class, because they did not pay a commission.” Dkt. 963 at 25, n. 21. Plaintiffs replied, in a section devoted to this issue, “Buyers are proper Class members” because their right to disgorge HL’s commission “does not depend on their having paid it.” Dkt. 1037 at 16. The Court rejected Defendant’s argument by certifying a class of buyers and sellers. Dkt. 1072 at 19, n. 3. Defendant’s requested motion to modify is a restyled motion to reargue the Court’s class certification order made beyond the 30-day limit set by CPLR 2221(d)(3). Skarla v. NPSFT LLC, 2016 N.Y. Misc. LEXIS 284 at *15 (Queens Cnty. Jan. 27, 2016) (“A party may not, by the simple expedient of styling his or her application in some alternative form, circumvent the 30-day time limit for bringing a motion to reargue.”). While the Court “has jurisdiction to consider its prior order regardless of the statutory time limits,” Itzkowitz v. King Kullen Grocery Co., 22 A.D.3d 636, 638 (2d Dep’t 2005), there is no reason to permit Defendant’s late filing to give it a second bite of the apple when it had three years to prepare to oppose Plaintiffs’ class certification motion. Respectfully, Jeremy Vest cc: Counsel for Defendant (via NYSCEF) BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.