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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : COMMERCIAL DIVISION
P.M.W.A. HAIR STYLIST INC. d/b/a PAUL MOLE
BARBER SHOP, CATCH THE WAVE, INC., and WAI
YEE ROONEY a/k/a SUSAN ROONEY, individually and
as a shareholder of P.M.W.A. HAIR STYLIST INC. d/b/a
Index Number 650915/2022
PAUL MOLE BARBER SHOP, CATCH THE WAVE,
(HON. BARRY R.
INC.,
OSTRAGER, J.S.C.)
Plaintiffs,
-against- Motion Sequence 010
ADRIAN H. WOOD, and PMAW HAIR STYLING,
LTD.,
Defendants.
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
DEFENDANTS’ MOTION FOR LEAVE TO REARGUE AND RENEW,
AND IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION
Gergely Klima, Attorney at Law
Law Office of Peter Wessel, PLLC
Attorneys for Defendants
270 Madison Avenue, 9th Floor
New York, New York 10016-0606
(212) 532-9700 (office)/(212) 202-7522 (fax)
gklima@wessellaw.com
PRELIMINARY STATEMENT
At the close of the last oral argument in this action, which concerned the
motion of Plaintiffs’ then-counsel to withdraw, the Court observed that outgoing
counsel had not “done [Ms. Rooney] any favors in connection with the advice that
[he had] given her[.]” NYSCEF Doc. No. 303 at 7:3-4. Judging by Plaintiffs’ papers
in opposition to the instant motion, Ms. Rooney’s new attorneys appear poised to
follow in their predecessor’s footsteps. In the first place, they have submitted an
affidavit from Ms. Rooney wherein she admits to having yet again unilaterally
misappropriated corporate funds to pay her legal fees – this time in the amount of
over $36,000 – in direct violation of the Preliminary Injunction’s requirement that,
except in a narrow set of instances, any checks issued by Plaintiff P.M.W.A. must
be countersigned by Mr. Wood. In addition, Ms. Rooney’s affidavit offers no
defense whatsoever for the unilateral payment of over $3,500 to her nephew from
the corporate bank account, also in defiance of the Preliminary Injunction’s
countersignature requirement.
To the extent Ms. Rooney attempts to explain other illicit payments she made,
her explanations fall flat. For instance, the documentary evidence unequivocally
refutes Ms. Rooney’s assertion that the “expenses” checks issued to barber shop
employee Bajram “Benny” Dede were payroll checks. Similarly, her payments to
Christopher Miu, a convicted felon who acts as Plaintiff P.M.W.A.’s accountant, do
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not constitute payroll, as Mr. Miu is not and has never been an employee of Plaintiff
P.M.W.A. Perhaps most audaciously, Ms. Rooney characterizes the cash
withdrawals amounting to $15,000 and payments for her health insurance premium,
parking fees, and home phone/Internet bills as barber shop “supplies and equipment”
that are exempt from the countersignature requirement.
Plaintiffs’ cross-motion is equally meritless. For one, Plaintiffs seek to have
the Court apply the Preliminary Injunction against Defendants, yet Plaintiffs do not
even attempt to demonstrate a likelihood of success on the merits, irreparable harm,
or that the balance of the equities tip in their favor. Likewise, Plaintiffs offer no
colorable basis for seeking permission to remove personal property from the shop’s
premises, which the Court has already determined belongs to the Defendant
Corporation. In any event, the Defendant Corporation has entered into a new lease
with the landlord, which begins on February 1, 2023, so there is no reason to remove
any items from premises.
RESPONSE TO PLAINTIFFS’ “COUNTER STATEMENT OF FACTS”
Plaintiffs’ opposition and cross-motion papers are rife with allegations and
arguments that are beyond the scope of this motion sequence, including contentions
concerning ultimate issues in this case (e.g., ownership of the Paul Molé Barber Shop
or the Paul Molé trade name and service mark) and issues that the Court has already
resolved (e.g., the Defendant Corporation’s ownership of the personal property at
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the barber shop premises). In an effort to conserve judicial resources, Defendants
address only those allegations and arguments that bear directly on the instant motion
and cross-motion. However, Defendants’ silence as to any allegation that is
tangential to this motion sequence should not be interpreted as an admission or
concession.
The facts necessary to decide the instant motion and cross-motion are set forth
in the previously-submitted affirmations of Gergely Klima, Esq. (NYSCEF Doc.
Nos. 276 and 280, the accompanying affirmation of Gergely Klima, Esq., and the
accompanying affidavits of Adrian H. Wood, Vivien T. LeGunn, Richard LeGunn,
and Kevin Gallagher, which are incorporated by reference herein.
ARGUMENT
I. LEAVE TO RENEW AND REARGUE SHOULD BE GRANTED
BASED ON MS. ROONEY’S STATEMENTS IN HER AFFIDAVIT
AND THE DOCUMENTARY EVIDENCE
A. Ms. Rooney Admits to Having Misappropriated Corporate Funds
to Pay Her Legal Fees Again
As the Court undoubtedly recalls, Ms. Rooney caused $50,000 to be wired
from Plaintiff P.M.W.A.’s corporate bank account to her former attorneys in this
litigation on August 18, 2022. See NYSCEF Doc. No. 213. That transfer occurred
nine days after the Court issued the TRO and one day after this Court expressly
denied her former counsel’s oral application to exempt payment of legal fees from
the TRO’s co-signature requirement. See NYSCEF Doc. No. 150 at 14:14 – 15:10;
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see also id. at 18:1-3. The funds were not returned until October 12, 2022, see
NYSCEF Doc. No. 213, fifty-five days after the wire transfer, and nine days after
this Court threatened severe sanctions for the misconduct. 1
Remarkably, Ms. Rooney now admits to having again misappropriated
corporate funds to pay her legal fees, this time in violation of the Preliminary
Injunction. In support of the branch of the instant motion seeking renewal,
Defendants submitted, inter alia, check number 012121, dated December 9, 2022,
from Plaintiff P.M.W.A.’s Capital One checking account ending in 8602, signed
solely by Ms. Rooney and made payable to herself, in the amount of $36,936.38.
See NYSCEF Doc. No. 281. In her affidavit in opposition, Ms. Rooney states that
“[t]he $36,000 was [her] bonus” and that she “had to use almost all of it to pay [her]
legal bills for this case.” NYSCEF Doc. No. 308 ¶ 11 (emphasis supplied). So,
instead of causing Plaintiff P.M.W.A. to issue payments directly to her attorneys (as
she did with the $50,000 wire transfer), Ms. Rooney is now paying her legal fees by
funneling the corporate funds through herself. Positioning herself as a middleman
does not make the payment any less violative of the Preliminary Injunction’s general
prohibition on issuance of checks without Mr. Wood’s countersignature.
1
The illicit $50,000 wire transfer was preceded by Ms. Rooney’s use of corporate
funds to pay $9,318 to the attorney representing her against Mr. Wood in a New
Jersey action to which Plaintiff P.M.W.A. is not a party. See NYSCEF Doc. No.
102. The P.M.W.A. bank records show no return of the misappropriated $9,318 to
Plaintiff P.M.W.A. and Ms. Rooney has not alleged to have repaid those funds.
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Nor does Ms. Rooney’s dubious characterization of the payment as an annual
“bonus” mitigate her contempt; indeed, it raises more questions than answers. For
one, if this is indeed an annual bonus, why is there no evidence in Plaintiff
P.M.W.A.’s bank records of any comparable “bonus” paid in prior years? See Wood
Aff. ¶ 5. How was this “bonus” calculated? Was any “bonus” paid to any other
employee? Who is entitled to an annual “bonus”? Ms. Rooney’s silence on these
questions, combined with the absence of any documentation of prior bonus
payments, indicates that the characterization of the payment as a “bonus” is a
slapdash, post-hoc attempt to justify yet another clear violation of the Preliminary
Injunction. Simply put, the “bonus” is bogus, and Ms. Rooney has succeeded only
in further damaging her credibility by positing this contrived excuse for her
contempt.
B. Plaintiffs Offer No Explanation for the $3,541.87 Check to Howen
Yip
While Ms. Rooney at least attempts to explain away the $36,936.38 payment
she funneled to her attorneys, she offers no justification whatsoever for the other
check she wrote on Plaintiff P.M.W.A.’s Capital One checking account ending in
8602 on December 9th. That check (number 012118) was in the amount of
$3,541.87 and was made payable to her nephew, Howen Yip, one of the barber
shop’s receptionists. See NYSCEF Doc. No. 281. Just like the $36,936.38 check
(and all the other checks submitted by Defendants on this motion), the check to Mr.
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Yip bears only Ms. Rooney’s signature, in plain violation of the Preliminary
Injunction. Plaintiffs’ opposition papers fail even to mention this payment, let alone
make any effort to rationalize it. At least in this instance, it appears that Ms.
Rooney’s contempt is too egregious even for her new counsel to attempt to defend
it.
C. The Payments to Bajram “Benny” Dede were NOT Payroll Checks,
as Alleged by Ms. Rooney
In support of the present motion to renew and reargue, Defendants have
submitted, inter alia, multiple checks unilaterally issued between August and
November 2022 by Ms. Rooney on Plaintiff P.M.W.A.’s Capital One account ending
in 4732 to Bajram “Benny” Dede, a barber at the Paul Mole Barber Shop who enjoys
favorable treatment by Ms. Rooney, bearing the word “expenses” on the memo line.
See NYSCEF Doc. Nos. 211 and 277. In her most recent affidavit, Ms. Rooney
claims that these checks were “payroll” payments and thus exempt from the co-
signature requirement of the TRO and Preliminary Injunction. NYSCEF Doc. No.
308 ¶¶ 7, 10. The documentary evidence unequivocally refutes this characterization.
Defendants’ Exhibit 3 consists of copies of each of the “expenses” checks paid
to Mr. Dede and each payroll check paid to him in the same week. The payroll
checks reflect that they were issued from either Plaintiff P.M.W.A.’s Capital One
bank account ending in 8602 or its Chase account ending in 3296. The payroll
checks are all in the same approximate amount (approximately $477). By contrast,
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the “expenses” checks were all issued from a Capital One account ending in 4732 at
irregular intervals and in amounts ranging from $459.67 (check no. 3332 dated
9/23/22) to $563.17 (check number 3337 dated 10/07/22). Moreover, as shown in
Exhibit 3, Mr. Dede received his regular payroll check in each of the weeks that he
received an “expenses” check – sometimes on the same day.The documentary
evidence thus proves that the “expenses” checks were distinct from Mr. Dede’s
payroll checks and that Ms. Rooney’s allegation to the contrary is false.
Accordingly, the “expenses” checks were not exempt from the Preliminary
Injunction’s countersignature requirement and Ms. Rooney’s unilateral issuance of
those checks constitutes contempt.
D. The Payments to Christopher Miu were NOT Payroll Checks, as
Alleged by Ms. Rooney
In support of the present motion to renew and reargue, Defendants have
submitted, inter alia, two checks (numbered 3333 and 3351) unilaterally issued by
Ms. Rooney on Plaintiff P.M.W.A.’s Capital One account ending in 4732 to
Christopher Miu. See NYSCEF Doc. No. 277. In her most recent affidavit, Ms.
Rooney alleges that these checks constituted “payroll” payments because they were
“payment[s] to accountant for his pay and also to issue the payroll of others,” and
were thus exempt from the co-signature requirement of the Preliminary Injunction.
See NYSCEF Doc. No. 308 ¶¶ 7, 10. However, Mr. Miu is not and has never been
an employee of Plaintiff P.M.W.A. or the Defendant Corporation; nor has he ever
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been on either party’s payroll. See Wood Aff. ¶ 8. Rather, Mr. Miu is an associate
of Ms. Rooney’s who has acted and continues to act as Plaintiffs’ accountant, despite
his 2019 federal conviction for felony fraud. See id.; see also Exh. 4 (Judgment in
U.S.A. v. Christopher Miu, 2:18-cr-00760 (WJM), U.S. District Court, District of
New Jersey – Newark).
Therefore, contrary to Ms. Rooney’s representation, the checks issued by Ms.
Rooney to Mr. Miu were not payroll checks, and they thus required Mr. Wood’s
countersignature under the Preliminary Injunction. Ms. Rooney’s unilateral
issuance of those checks without Mr. Wood’s signature constitutes contempt.
E. Ms. Rooney’s Assertion that the Remaining Payments and Cash
Withdrawals Constitute “Supplies and Equipment” Finds No
Support in the Record
In her affidavit, Ms. Rooney asserts that the remaining checks, as well as the
cash withdrawals from the corporate bank account, constitute payments for “supplies
and equipment” and are thus exempt from the Preliminary Injunction’s
countersignature requirement. See NYSCEF Doc. No. 308 ¶¶ 7, 8, 10. Nothing in
the record indicates that the Court ever intended that the exemption apply to Ms.
Rooney’s health insurance premium, parking fees, or home phone and Internet. The
Court most certainly did not contemplate that “supplies and equipment” would
include $15,000 in cash withdrawals by Ms. Rooney. See id. ¶ 8 (wherein Ms.
Rooney refers to the weekly cash withdrawals as “a necessary business supply”).
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Ms. Rooney’s position is simply preposterous. The Preliminary Injunction
exempts specific, narrow categories of payments from the countersignature
requirement. The payments submitted in support of re-argument and renewal clearly
do not fall into any of those categories. Accordingly, Ms. Rooney’s unilateral
issuance of those payments without Mr. Wood’s countersignature constitute
contempt.
II. PLAINTIFFS’ OPPOSITION TO RENEWAL MISSTATES
APPLICABLE LAW
A. CPLR 2221(e) Does Not Require Newly-Discovered Evidence to
have been “Extant” at the Time of the Underlying Motion
In opposing the branch of the instant motion seeking leave to renew, Plaintiffs
argue that renewal should be denied because the facts presented in support thereof –
Ms. Rooney’s issuance of payments in violation of the Preliminary Injunction after
Defendants submitted the contempt motion – were not “extant” at the time the
contempt motion was submitted. See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at
13-14. Plaintiffs base this argument on language found in two First Department
decisions from 1987 and 1979, respectively (and an unpublished 2020 decision from
this Court quoting those decisions). See id. However, those decisions predate the
1999 amendments to CPLR 2221, which subsequent case law has interpreted.
Following adoption of the 1999 amendments, the First Department held that
“renewal motions generally should be based on newly discovered facts that could
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not be offered on the prior motion[.]” Mejia v. Nanni, 307 A.D.2d 870, 871 (1st
Dep’t 2003); see generally Connors, Practice Commentary, McKinney’s Cons Laws
of NY, CPLR 2221.
Thus, there is no requirement that the newly-discovered facts must have
existed at the time of the underlying motion; rather, the requirement is that the new
facts “could not be offered on the prior motion.” See id.; see also Ramos v. City of
New York, 61 A.D.3d 51, 54 (1st Dep’t 2009) (“A motion to renew simply requires
a showing of new facts not offered on the prior motion that would change the prior
determination[.]”) (internal quotation marks omitted). In accordance with this rule,
the First Department in Ramos affirmed the grant of leave to renew a motion for
summary judgment that had been granted based on the plaintiff’s criminal conviction
stemming from the same altercation that underlay the civil suit, which conviction
was reversed after the motion had been decided. See id. The First Department held
that “the reversal of plaintiff's conviction constitutes such ‘new facts not offered on
the prior motion’ or ‘newly-discovered evidence’ that would have, if known to the
motion court, produced a different result,” and further reasoned that “it [was] self-
evident” that the plaintiff could not have presented evidence of the reversal of his
conviction until after the reversal had occurred. Id. at 54-55.
Like the Ramos plaintiff, Defendants could not, at the time of the underlying
contempt motion, have presented evidence of the illicit payments that Ms. Rooney
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made after that motion was decided. Under Ramos, this constitutes “reasonable
justification for the failure to present such facts on the prior motion[.]” Id. at 54.
Accordingly, the motion for leave to renew based on Ms. Rooney’s issuance of
checks for non-exempt purposes without Mr. Wood’s countersignature after the
Court decided the underlying motion is entirely appropriate.
B. CPLR 2221(e) Does Not Require Newly-Discovered Evidence to be
of a “Different Nature” than the Evidence Previously Presented
Plaintiffs contend that leave to renew should be denied because the evidence
presented in support of renewal – Ms. Rooney’s unilateral issuance of checks on
Plaintiff P.M.W.A.’s bank account since the contempt motion was decided, in
violation of the Preliminary Injunction – is “akin to” the evidence submitted in
support of the underlying contempt motion. See NYSCEF Doc. No. 313 (Pl. Mem.
of Law) at 14-15. Plaintiffs’ position is untenable for multiple reasons.
For one, there is no authority for Plaintiffs’ proposition that facts submitted in
support of renewal must be “of a different nature” than the facts submitted in support
of the underlying motion. Id. at 15. No such provision appears in CPLR 2221(e)
and Plaintiffs cite no decision so interpreting the statute. The proposition appears to
have been plucked from the imagination of Plaintiffs’ counsel.
Moreover, when taken to its logical conclusion, the proposition yields a
perverse result. According to Plaintiffs, because the Court previously failed to
punish Ms. Rooney for issuing payments that violated the Preliminary Injunction,
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the Court should not be permitted to consider evidence that Ms. Rooney issued
additional illicit payments after the Court rendered its decision. This is akin to – or,
given the circumstances of this case, identical to – arguing that a thief who has
evaded punishment once should thereafter be permitted to steal again and again with
impunity.
Furthermore, Plaintiffs conveniently ignore the emphasis that the First
Department places on the interest of justice in weighing a motion seeking renewal.
See Mattis v. Keen, 54 A.D.3d 610, 611 (1st Dep’t 2008) (“Although motions to
renew should be based on newly discovered facts that could not have been offered
on the prior motion, courts have discretion to relax this requirement and grant the
motion in the interest of justice.”). Here, Ms. Rooney has brazenly defied the
Court’s orders repeatedly, both before and since the Court issued its decision
denying the underlying contempt motion. She has enriched herself at the expense
of the business Mr. Wood has built, to which he has devoted nearly five decades of
his life. She should not be rewarded for having (thus far) avoided punishment for
her misconduct; such a result could be described only as a perversion of justice.
III. PLAINTIFFS’ OPPOSITION TO REARGUMENT SIDESTEPS THE
COURT’S SALIENT FINDING, WHICH IS IRRECONCILABLE
WITH ITS PRIOR FINDINGS OF MS. ROONEY’S DISOBEDIENCE
In opposing the branch of Defendants’ motion seeking leave to reargue,
Plaintiffs devote a considerable portion of their memorandum of law to quoting
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portions of the record in which the Court acknowledges Ms. Rooney’s contempt.
See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 9-11. Defendants do not dispute
that the Court made numerous statements in its orders and on the record recognizing
Ms. Rooney’s disobedience of its orders and threatening sanctions for same; those
statements are scrupulously reproduced in Defendants’ own, primary memorandum
of law. See NYSCEF Doc. No. 279 at 3-10.
However, against this backdrop of the Court’s repeated admonishments of
Ms. Rooney for her multiple acts of contempt – particularly for issuing payments in
violation of the Preliminary Injunction – Plaintiffs fail to explain the one statement
that is the catalyst for the motion seeking leave to reargue: the assertion in the
Court’s November 10, 2022 Decision and Order (NYSCEF Doc. Nos. 269 and 270)
that it had “heard no assertion from defendant’s counsel that checks have been
written without the co-signature of the defendant for purposes other than the
payment of rent/payroll/taxes”. It is precisely because the Court issued this
statement – after umpteen prior acknowledgments of Ms. Rooney’s having engaged
in the very misconduct of which the Court now purports to have “heard no assertion
from defendant’s counsel” – that Defendants seek leave to reargue. The only
plausible explanations for the glaring discrepancy between the Court’s statement in
the November 10th Decision and Order and its prior, explicit findings of contempt
are that the Court, at the time it issued the November 10th Decision and Order,
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misapprehended or overlooked the documentary evidence and/or Ms. Rooney’s
testimony, or that the Court misapplied relevant law. As set forth in Defendants’
previous memorandum of law, reargument is warranted under any of the foregoing
circumstances.
IV. THE CROSS-MOTION SHOULD BE DENIED IN ALL RESPECTS
A. Plaintiffs Have Not Demonstrated Entitlement to a Preliminary
Injunction
Bafflingly, Plaintiffs have filed a cross-motion seeking, inter alia, to have the
“restrictions set forth in the Preliminary Injunction . . . apply equally to Plaintiffs
and to Defendants,” NYSCEF Doc. No. 312, without attempting to satisfy the
requirements for a preliminary injunction.
To establish prima facie entitlement to a preliminary injunction, a party must
demonstrate “a likelihood of success on the merits of its . . . claim[s], irreparable
harm in the absence of the injunctive relief, and a balancing of the equities in its
favor.” See City of New York v. Untitled LLC, 51 A.D.3d 509, 511, 859 N.Y.S.2d
20, 22 (1st Dep’t 2008). Defendants secured the Preliminary Injunction by meeting
all of the foregoing requirements, as detailed in this Court’s September 16, 2022
Decision and Order. See NYSCEF Doc. Nos. 184 and 185. By contrast, Plaintiffs
have failed to make even a cursory effort to show that they meet any of the foregoing
requirements, which they do not even bother to reference in their memorandum of
law. See NYSCEF Doc. No. 313 at 15-16. Accordingly, this branch of Plaintiffs’
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cross-motion should be denied out-of-hand. See Ahead Realty LLC v. India House,
Inc., 92 A.D.3d 424, 425 (1st Dep’t 2012).
Plaintiffs’ approach is doubly puzzling in light of prior Orders issued in this
case. In May 2022, the Honorable Robert R. Reed of this Court denied Plaintiffs’
motion for a preliminary injunction. See NYSCEF Doc. No. 74. In so doing, Justice
Reed explicitly found that he had “not been presented clear and convincing evidence
that . . . there is a likelihood of success on the merits, favoring the [Plaintiffs],” id.
at 46:25 – 47:3, and concluded that he had “not seen clear and convincing evidence
weighing on any of the components [of the] preliminary injunction standard that
would allow this Court to provide the relief that has been requested,” id. at 48:15-
18. More recently, the Court denied Plaintiffs’ application to “suspend, dissolve, or
modify” certain provisions of the Preliminary Injunction. See NYSCEF Doc. No.
253 at 2 (“Plaintiff’s cross-motion for sanctions and an order rescinding or
modifying the Preliminary Injunction Order is denied.”). Plaintiffs have presented
no grounds for disturbing these prior Orders.
Accordingly, Plaintiffs application to have the Preliminary Injunction apply
to Defendants should be denied.
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B. The Court has Already Found that the Personal Property at the
Barber Shop Belongs to Mr. Wood’s Solely-Owned Corporation,
which has Entered into a New Lease with the Landlord of the
Premises
Plaintiffs seek a “carve-out” to the Preliminary Injunction that would allow
them to transfer the personal property out of the barber shop’s premises. See
NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 16-17. In requesting this relief,
Plaintiffs ignore the following finding in the Court’s Decision and Order granting
the Preliminary Injunction:
Regarding prong 6 of defendants’ application seeking to enjoin
plaintiffs from removing or allowing to remove any of the personal
property of the barbershop, defendant Wood credibly testified that
the personal property located at the Premises is the personal
property of defendant corporation. The list of personal property
includes vintage barbershop equipment, as well as art and decor, all of
which had been accumulated prior to the formation of plaintiff
corporation and prior to plaintiff Rooney’s involvement with the
Barbershop. There is no evidence that this personal property was
ever transferred to plaintiffs.
See NYSCEF Doc. Nos. 184 and 185 at 5 (emphasis supplied). Accordingly, the
Court has already found that the personal property at the barber shop belongs to the
Defendant Corporation, which is solely owned by Mr. Wood. Plaintiffs have
adduced no grounds to justify re-litigation of this issue.
In addition, there is no reason to remove any items from the barber shop, as
the Defendant Corporation has entered into a new lease with the landlord, which
begins on February 1, 2023; the landlord has submitted an affidavit in support of
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Defendants’ motion to that effect. 2 See Vivien T. LeGunn Aff. ¶ 10 (“Today, I
entered into a new lease with Mr. Wood and his barber shop, the Paul Mole Barber
Shop[,] so that the barber shop may resume under its original management (and
without Ms. Rooney).”). The landlord’s affidavit notes that the new lease expressly
prohibits Mr. Wood and the Defendant Corporation “from having any business
relationship with Ms. Rooney at” the premises. Id. ¶ 11.
CONCLUSION
Based on all of the foregoing, it is respectfully requested that the Court deny
Plaintiffs’ cross-motion in all respects and grant Defendants’ motion to reargue and
renew, and, upon renewal and/or reargument, issue an Order punishing Plaintiff
Rooney in her individual capacity for her contempt of court, pursuant to Judiciary
Law Section 753, for disobeying this Court's Orders dated August 9, 2022, August
17, 2022, and September 16, 2022, concerning which there is no issue of fact and
which the Court has previously found, such punishment to consist of (i) fining her
in the amount of Five Thousand Dollars ($5,000) per day from August 9, 2022 to
November 4, 2022 or such other amount as this Court may deem appropriate and (ii)
committing her to imprisonment, with a stay of execution conditioned upon Wai Yee
Rooney purging herself of the contempt forthwith (a) by paying Defendant Adrian
2
Ms. Rooney’s claim at paragraph 12 of her affidavit that Adrian Wood removed
anything from the barbershop is totally refuted in affidavits submitted by Adrian
Wood, Richard LeGunn, and Kevin Gallagher.
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H. Wood a sum to be determined, and (b) by reimbursing Defendant Adrian H. Wood
for all counsel fees, costs, and disbursements that the Defendant Adrian H. Wood
has suffered and incurred as a result of the contumacious conduct of Wai Yee
Rooney by a date to be determined.
Dated: New York, New York
January 17, 2023
Respectfully submitted,
/s/ Gergely Klima .
Gergely Klima, Attorney at Law
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Commercial Division Rule 17 Certification
I, GERGELY KLIMA, counsel for Defendants ADRIAN H. WOOD and
PMAW HAIR STYLING, LTD., hereby certify that the within Memorandum of
Law complies with the Court’s word limit. According to the word processing system
used to prepare the within document, this Memorandum of Law contains 4,138
words (excluding the caption, signature block, and this certification).
Dated: New York, New York
January 17, 2023
/s/ Gergely Klima .
Gergely Klima, Attorney at Law
ATTORNEY CERTIFICATION, pursuant to 22 NYCRR ' 130-1.1-a
I, GERGELY KLIMA, an attorney admitted to practice in the courts of New
York State, hereby certify that, upon information and belief, and upon reasonable
inquiry, pursuant to 22 NYCRR ' 130-1.1-a, the presentation herein of this
Memorandum of Law is not frivolous.
Dated: New York, New York
January 17, 2023
/s/ Gergely Klima .
Gergely Klima, Attorney at Law
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Preview
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : COMMERCIAL DIVISION P.M.W.A. HAIR STYLIST INC. d/b/a PAUL MOLE BARBER SHOP, CATCH THE WAVE, INC., and WAI YEE ROONEY a/k/a SUSAN ROONEY, individually and as a shareholder of P.M.W.A. HAIR STYLIST INC. d/b/a Index Number 650915/2022 PAUL MOLE BARBER SHOP, CATCH THE WAVE, (HON. BARRY R. INC., OSTRAGER, J.S.C.) Plaintiffs, -against- Motion Sequence 010 ADRIAN H. WOOD, and PMAW HAIR STYLING, LTD., Defendants. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO REARGUE AND RENEW, AND IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION Gergely Klima, Attorney at Law Law Office of Peter Wessel, PLLC Attorneys for Defendants 270 Madison Avenue, 9th Floor New York, New York 10016-0606 (212) 532-9700 (office)/(212) 202-7522 (fax) gklima@wessellaw.com PRELIMINARY STATEMENT At the close of the last oral argument in this action, which concerned the motion of Plaintiffs’ then-counsel to withdraw, the Court observed that outgoing counsel had not “done [Ms. Rooney] any favors in connection with the advice that [he had] given her[.]” NYSCEF Doc. No. 303 at 7:3-4. Judging by Plaintiffs’ papers in opposition to the instant motion, Ms. Rooney’s new attorneys appear poised to follow in their predecessor’s footsteps. In the first place, they have submitted an affidavit from Ms. Rooney wherein she admits to having yet again unilaterally misappropriated corporate funds to pay her legal fees – this time in the amount of over $36,000 – in direct violation of the Preliminary Injunction’s requirement that, except in a narrow set of instances, any checks issued by Plaintiff P.M.W.A. must be countersigned by Mr. Wood. In addition, Ms. Rooney’s affidavit offers no defense whatsoever for the unilateral payment of over $3,500 to her nephew from the corporate bank account, also in defiance of the Preliminary Injunction’s countersignature requirement. To the extent Ms. Rooney attempts to explain other illicit payments she made, her explanations fall flat. For instance, the documentary evidence unequivocally refutes Ms. Rooney’s assertion that the “expenses” checks issued to barber shop employee Bajram “Benny” Dede were payroll checks. Similarly, her payments to Christopher Miu, a convicted felon who acts as Plaintiff P.M.W.A.’s accountant, do -1- not constitute payroll, as Mr. Miu is not and has never been an employee of Plaintiff P.M.W.A. Perhaps most audaciously, Ms. Rooney characterizes the cash withdrawals amounting to $15,000 and payments for her health insurance premium, parking fees, and home phone/Internet bills as barber shop “supplies and equipment” that are exempt from the countersignature requirement. Plaintiffs’ cross-motion is equally meritless. For one, Plaintiffs seek to have the Court apply the Preliminary Injunction against Defendants, yet Plaintiffs do not even attempt to demonstrate a likelihood of success on the merits, irreparable harm, or that the balance of the equities tip in their favor. Likewise, Plaintiffs offer no colorable basis for seeking permission to remove personal property from the shop’s premises, which the Court has already determined belongs to the Defendant Corporation. In any event, the Defendant Corporation has entered into a new lease with the landlord, which begins on February 1, 2023, so there is no reason to remove any items from premises. RESPONSE TO PLAINTIFFS’ “COUNTER STATEMENT OF FACTS” Plaintiffs’ opposition and cross-motion papers are rife with allegations and arguments that are beyond the scope of this motion sequence, including contentions concerning ultimate issues in this case (e.g., ownership of the Paul Molé Barber Shop or the Paul Molé trade name and service mark) and issues that the Court has already resolved (e.g., the Defendant Corporation’s ownership of the personal property at -2- the barber shop premises). In an effort to conserve judicial resources, Defendants address only those allegations and arguments that bear directly on the instant motion and cross-motion. However, Defendants’ silence as to any allegation that is tangential to this motion sequence should not be interpreted as an admission or concession. The facts necessary to decide the instant motion and cross-motion are set forth in the previously-submitted affirmations of Gergely Klima, Esq. (NYSCEF Doc. Nos. 276 and 280, the accompanying affirmation of Gergely Klima, Esq., and the accompanying affidavits of Adrian H. Wood, Vivien T. LeGunn, Richard LeGunn, and Kevin Gallagher, which are incorporated by reference herein. ARGUMENT I. LEAVE TO RENEW AND REARGUE SHOULD BE GRANTED BASED ON MS. ROONEY’S STATEMENTS IN HER AFFIDAVIT AND THE DOCUMENTARY EVIDENCE A. Ms. Rooney Admits to Having Misappropriated Corporate Funds to Pay Her Legal Fees Again As the Court undoubtedly recalls, Ms. Rooney caused $50,000 to be wired from Plaintiff P.M.W.A.’s corporate bank account to her former attorneys in this litigation on August 18, 2022. See NYSCEF Doc. No. 213. That transfer occurred nine days after the Court issued the TRO and one day after this Court expressly denied her former counsel’s oral application to exempt payment of legal fees from the TRO’s co-signature requirement. See NYSCEF Doc. No. 150 at 14:14 – 15:10; -3- see also id. at 18:1-3. The funds were not returned until October 12, 2022, see NYSCEF Doc. No. 213, fifty-five days after the wire transfer, and nine days after this Court threatened severe sanctions for the misconduct. 1 Remarkably, Ms. Rooney now admits to having again misappropriated corporate funds to pay her legal fees, this time in violation of the Preliminary Injunction. In support of the branch of the instant motion seeking renewal, Defendants submitted, inter alia, check number 012121, dated December 9, 2022, from Plaintiff P.M.W.A.’s Capital One checking account ending in 8602, signed solely by Ms. Rooney and made payable to herself, in the amount of $36,936.38. See NYSCEF Doc. No. 281. In her affidavit in opposition, Ms. Rooney states that “[t]he $36,000 was [her] bonus” and that she “had to use almost all of it to pay [her] legal bills for this case.” NYSCEF Doc. No. 308 ¶ 11 (emphasis supplied). So, instead of causing Plaintiff P.M.W.A. to issue payments directly to her attorneys (as she did with the $50,000 wire transfer), Ms. Rooney is now paying her legal fees by funneling the corporate funds through herself. Positioning herself as a middleman does not make the payment any less violative of the Preliminary Injunction’s general prohibition on issuance of checks without Mr. Wood’s countersignature. 1 The illicit $50,000 wire transfer was preceded by Ms. Rooney’s use of corporate funds to pay $9,318 to the attorney representing her against Mr. Wood in a New Jersey action to which Plaintiff P.M.W.A. is not a party. See NYSCEF Doc. No. 102. The P.M.W.A. bank records show no return of the misappropriated $9,318 to Plaintiff P.M.W.A. and Ms. Rooney has not alleged to have repaid those funds. -4- Nor does Ms. Rooney’s dubious characterization of the payment as an annual “bonus” mitigate her contempt; indeed, it raises more questions than answers. For one, if this is indeed an annual bonus, why is there no evidence in Plaintiff P.M.W.A.’s bank records of any comparable “bonus” paid in prior years? See Wood Aff. ¶ 5. How was this “bonus” calculated? Was any “bonus” paid to any other employee? Who is entitled to an annual “bonus”? Ms. Rooney’s silence on these questions, combined with the absence of any documentation of prior bonus payments, indicates that the characterization of the payment as a “bonus” is a slapdash, post-hoc attempt to justify yet another clear violation of the Preliminary Injunction. Simply put, the “bonus” is bogus, and Ms. Rooney has succeeded only in further damaging her credibility by positing this contrived excuse for her contempt. B. Plaintiffs Offer No Explanation for the $3,541.87 Check to Howen Yip While Ms. Rooney at least attempts to explain away the $36,936.38 payment she funneled to her attorneys, she offers no justification whatsoever for the other check she wrote on Plaintiff P.M.W.A.’s Capital One checking account ending in 8602 on December 9th. That check (number 012118) was in the amount of $3,541.87 and was made payable to her nephew, Howen Yip, one of the barber shop’s receptionists. See NYSCEF Doc. No. 281. Just like the $36,936.38 check (and all the other checks submitted by Defendants on this motion), the check to Mr. -5- Yip bears only Ms. Rooney’s signature, in plain violation of the Preliminary Injunction. Plaintiffs’ opposition papers fail even to mention this payment, let alone make any effort to rationalize it. At least in this instance, it appears that Ms. Rooney’s contempt is too egregious even for her new counsel to attempt to defend it. C. The Payments to Bajram “Benny” Dede were NOT Payroll Checks, as Alleged by Ms. Rooney In support of the present motion to renew and reargue, Defendants have submitted, inter alia, multiple checks unilaterally issued between August and November 2022 by Ms. Rooney on Plaintiff P.M.W.A.’s Capital One account ending in 4732 to Bajram “Benny” Dede, a barber at the Paul Mole Barber Shop who enjoys favorable treatment by Ms. Rooney, bearing the word “expenses” on the memo line. See NYSCEF Doc. Nos. 211 and 277. In her most recent affidavit, Ms. Rooney claims that these checks were “payroll” payments and thus exempt from the co- signature requirement of the TRO and Preliminary Injunction. NYSCEF Doc. No. 308 ¶¶ 7, 10. The documentary evidence unequivocally refutes this characterization. Defendants’ Exhibit 3 consists of copies of each of the “expenses” checks paid to Mr. Dede and each payroll check paid to him in the same week. The payroll checks reflect that they were issued from either Plaintiff P.M.W.A.’s Capital One bank account ending in 8602 or its Chase account ending in 3296. The payroll checks are all in the same approximate amount (approximately $477). By contrast, -6- the “expenses” checks were all issued from a Capital One account ending in 4732 at irregular intervals and in amounts ranging from $459.67 (check no. 3332 dated 9/23/22) to $563.17 (check number 3337 dated 10/07/22). Moreover, as shown in Exhibit 3, Mr. Dede received his regular payroll check in each of the weeks that he received an “expenses” check – sometimes on the same day.The documentary evidence thus proves that the “expenses” checks were distinct from Mr. Dede’s payroll checks and that Ms. Rooney’s allegation to the contrary is false. Accordingly, the “expenses” checks were not exempt from the Preliminary Injunction’s countersignature requirement and Ms. Rooney’s unilateral issuance of those checks constitutes contempt. D. The Payments to Christopher Miu were NOT Payroll Checks, as Alleged by Ms. Rooney In support of the present motion to renew and reargue, Defendants have submitted, inter alia, two checks (numbered 3333 and 3351) unilaterally issued by Ms. Rooney on Plaintiff P.M.W.A.’s Capital One account ending in 4732 to Christopher Miu. See NYSCEF Doc. No. 277. In her most recent affidavit, Ms. Rooney alleges that these checks constituted “payroll” payments because they were “payment[s] to accountant for his pay and also to issue the payroll of others,” and were thus exempt from the co-signature requirement of the Preliminary Injunction. See NYSCEF Doc. No. 308 ¶¶ 7, 10. However, Mr. Miu is not and has never been an employee of Plaintiff P.M.W.A. or the Defendant Corporation; nor has he ever -7- been on either party’s payroll. See Wood Aff. ¶ 8. Rather, Mr. Miu is an associate of Ms. Rooney’s who has acted and continues to act as Plaintiffs’ accountant, despite his 2019 federal conviction for felony fraud. See id.; see also Exh. 4 (Judgment in U.S.A. v. Christopher Miu, 2:18-cr-00760 (WJM), U.S. District Court, District of New Jersey – Newark). Therefore, contrary to Ms. Rooney’s representation, the checks issued by Ms. Rooney to Mr. Miu were not payroll checks, and they thus required Mr. Wood’s countersignature under the Preliminary Injunction. Ms. Rooney’s unilateral issuance of those checks without Mr. Wood’s signature constitutes contempt. E. Ms. Rooney’s Assertion that the Remaining Payments and Cash Withdrawals Constitute “Supplies and Equipment” Finds No Support in the Record In her affidavit, Ms. Rooney asserts that the remaining checks, as well as the cash withdrawals from the corporate bank account, constitute payments for “supplies and equipment” and are thus exempt from the Preliminary Injunction’s countersignature requirement. See NYSCEF Doc. No. 308 ¶¶ 7, 8, 10. Nothing in the record indicates that the Court ever intended that the exemption apply to Ms. Rooney’s health insurance premium, parking fees, or home phone and Internet. The Court most certainly did not contemplate that “supplies and equipment” would include $15,000 in cash withdrawals by Ms. Rooney. See id. ¶ 8 (wherein Ms. Rooney refers to the weekly cash withdrawals as “a necessary business supply”). -8- Ms. Rooney’s position is simply preposterous. The Preliminary Injunction exempts specific, narrow categories of payments from the countersignature requirement. The payments submitted in support of re-argument and renewal clearly do not fall into any of those categories. Accordingly, Ms. Rooney’s unilateral issuance of those payments without Mr. Wood’s countersignature constitute contempt. II. PLAINTIFFS’ OPPOSITION TO RENEWAL MISSTATES APPLICABLE LAW A. CPLR 2221(e) Does Not Require Newly-Discovered Evidence to have been “Extant” at the Time of the Underlying Motion In opposing the branch of the instant motion seeking leave to renew, Plaintiffs argue that renewal should be denied because the facts presented in support thereof – Ms. Rooney’s issuance of payments in violation of the Preliminary Injunction after Defendants submitted the contempt motion – were not “extant” at the time the contempt motion was submitted. See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 13-14. Plaintiffs base this argument on language found in two First Department decisions from 1987 and 1979, respectively (and an unpublished 2020 decision from this Court quoting those decisions). See id. However, those decisions predate the 1999 amendments to CPLR 2221, which subsequent case law has interpreted. Following adoption of the 1999 amendments, the First Department held that “renewal motions generally should be based on newly discovered facts that could -9- not be offered on the prior motion[.]” Mejia v. Nanni, 307 A.D.2d 870, 871 (1st Dep’t 2003); see generally Connors, Practice Commentary, McKinney’s Cons Laws of NY, CPLR 2221. Thus, there is no requirement that the newly-discovered facts must have existed at the time of the underlying motion; rather, the requirement is that the new facts “could not be offered on the prior motion.” See id.; see also Ramos v. City of New York, 61 A.D.3d 51, 54 (1st Dep’t 2009) (“A motion to renew simply requires a showing of new facts not offered on the prior motion that would change the prior determination[.]”) (internal quotation marks omitted). In accordance with this rule, the First Department in Ramos affirmed the grant of leave to renew a motion for summary judgment that had been granted based on the plaintiff’s criminal conviction stemming from the same altercation that underlay the civil suit, which conviction was reversed after the motion had been decided. See id. The First Department held that “the reversal of plaintiff's conviction constitutes such ‘new facts not offered on the prior motion’ or ‘newly-discovered evidence’ that would have, if known to the motion court, produced a different result,” and further reasoned that “it [was] self- evident” that the plaintiff could not have presented evidence of the reversal of his conviction until after the reversal had occurred. Id. at 54-55. Like the Ramos plaintiff, Defendants could not, at the time of the underlying contempt motion, have presented evidence of the illicit payments that Ms. Rooney -10- made after that motion was decided. Under Ramos, this constitutes “reasonable justification for the failure to present such facts on the prior motion[.]” Id. at 54. Accordingly, the motion for leave to renew based on Ms. Rooney’s issuance of checks for non-exempt purposes without Mr. Wood’s countersignature after the Court decided the underlying motion is entirely appropriate. B. CPLR 2221(e) Does Not Require Newly-Discovered Evidence to be of a “Different Nature” than the Evidence Previously Presented Plaintiffs contend that leave to renew should be denied because the evidence presented in support of renewal – Ms. Rooney’s unilateral issuance of checks on Plaintiff P.M.W.A.’s bank account since the contempt motion was decided, in violation of the Preliminary Injunction – is “akin to” the evidence submitted in support of the underlying contempt motion. See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 14-15. Plaintiffs’ position is untenable for multiple reasons. For one, there is no authority for Plaintiffs’ proposition that facts submitted in support of renewal must be “of a different nature” than the facts submitted in support of the underlying motion. Id. at 15. No such provision appears in CPLR 2221(e) and Plaintiffs cite no decision so interpreting the statute. The proposition appears to have been plucked from the imagination of Plaintiffs’ counsel. Moreover, when taken to its logical conclusion, the proposition yields a perverse result. According to Plaintiffs, because the Court previously failed to punish Ms. Rooney for issuing payments that violated the Preliminary Injunction, -11- the Court should not be permitted to consider evidence that Ms. Rooney issued additional illicit payments after the Court rendered its decision. This is akin to – or, given the circumstances of this case, identical to – arguing that a thief who has evaded punishment once should thereafter be permitted to steal again and again with impunity. Furthermore, Plaintiffs conveniently ignore the emphasis that the First Department places on the interest of justice in weighing a motion seeking renewal. See Mattis v. Keen, 54 A.D.3d 610, 611 (1st Dep’t 2008) (“Although motions to renew should be based on newly discovered facts that could not have been offered on the prior motion, courts have discretion to relax this requirement and grant the motion in the interest of justice.”). Here, Ms. Rooney has brazenly defied the Court’s orders repeatedly, both before and since the Court issued its decision denying the underlying contempt motion. She has enriched herself at the expense of the business Mr. Wood has built, to which he has devoted nearly five decades of his life. She should not be rewarded for having (thus far) avoided punishment for her misconduct; such a result could be described only as a perversion of justice. III. PLAINTIFFS’ OPPOSITION TO REARGUMENT SIDESTEPS THE COURT’S SALIENT FINDING, WHICH IS IRRECONCILABLE WITH ITS PRIOR FINDINGS OF MS. ROONEY’S DISOBEDIENCE In opposing the branch of Defendants’ motion seeking leave to reargue, Plaintiffs devote a considerable portion of their memorandum of law to quoting -12- portions of the record in which the Court acknowledges Ms. Rooney’s contempt. See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 9-11. Defendants do not dispute that the Court made numerous statements in its orders and on the record recognizing Ms. Rooney’s disobedience of its orders and threatening sanctions for same; those statements are scrupulously reproduced in Defendants’ own, primary memorandum of law. See NYSCEF Doc. No. 279 at 3-10. However, against this backdrop of the Court’s repeated admonishments of Ms. Rooney for her multiple acts of contempt – particularly for issuing payments in violation of the Preliminary Injunction – Plaintiffs fail to explain the one statement that is the catalyst for the motion seeking leave to reargue: the assertion in the Court’s November 10, 2022 Decision and Order (NYSCEF Doc. Nos. 269 and 270) that it had “heard no assertion from defendant’s counsel that checks have been written without the co-signature of the defendant for purposes other than the payment of rent/payroll/taxes”. It is precisely because the Court issued this statement – after umpteen prior acknowledgments of Ms. Rooney’s having engaged in the very misconduct of which the Court now purports to have “heard no assertion from defendant’s counsel” – that Defendants seek leave to reargue. The only plausible explanations for the glaring discrepancy between the Court’s statement in the November 10th Decision and Order and its prior, explicit findings of contempt are that the Court, at the time it issued the November 10th Decision and Order, -13- misapprehended or overlooked the documentary evidence and/or Ms. Rooney’s testimony, or that the Court misapplied relevant law. As set forth in Defendants’ previous memorandum of law, reargument is warranted under any of the foregoing circumstances. IV. THE CROSS-MOTION SHOULD BE DENIED IN ALL RESPECTS A. Plaintiffs Have Not Demonstrated Entitlement to a Preliminary Injunction Bafflingly, Plaintiffs have filed a cross-motion seeking, inter alia, to have the “restrictions set forth in the Preliminary Injunction . . . apply equally to Plaintiffs and to Defendants,” NYSCEF Doc. No. 312, without attempting to satisfy the requirements for a preliminary injunction. To establish prima facie entitlement to a preliminary injunction, a party must demonstrate “a likelihood of success on the merits of its . . . claim[s], irreparable harm in the absence of the injunctive relief, and a balancing of the equities in its favor.” See City of New York v. Untitled LLC, 51 A.D.3d 509, 511, 859 N.Y.S.2d 20, 22 (1st Dep’t 2008). Defendants secured the Preliminary Injunction by meeting all of the foregoing requirements, as detailed in this Court’s September 16, 2022 Decision and Order. See NYSCEF Doc. Nos. 184 and 185. By contrast, Plaintiffs have failed to make even a cursory effort to show that they meet any of the foregoing requirements, which they do not even bother to reference in their memorandum of law. See NYSCEF Doc. No. 313 at 15-16. Accordingly, this branch of Plaintiffs’ -14- cross-motion should be denied out-of-hand. See Ahead Realty LLC v. India House, Inc., 92 A.D.3d 424, 425 (1st Dep’t 2012). Plaintiffs’ approach is doubly puzzling in light of prior Orders issued in this case. In May 2022, the Honorable Robert R. Reed of this Court denied Plaintiffs’ motion for a preliminary injunction. See NYSCEF Doc. No. 74. In so doing, Justice Reed explicitly found that he had “not been presented clear and convincing evidence that . . . there is a likelihood of success on the merits, favoring the [Plaintiffs],” id. at 46:25 – 47:3, and concluded that he had “not seen clear and convincing evidence weighing on any of the components [of the] preliminary injunction standard that would allow this Court to provide the relief that has been requested,” id. at 48:15- 18. More recently, the Court denied Plaintiffs’ application to “suspend, dissolve, or modify” certain provisions of the Preliminary Injunction. See NYSCEF Doc. No. 253 at 2 (“Plaintiff’s cross-motion for sanctions and an order rescinding or modifying the Preliminary Injunction Order is denied.”). Plaintiffs have presented no grounds for disturbing these prior Orders. Accordingly, Plaintiffs application to have the Preliminary Injunction apply to Defendants should be denied. -15- B. The Court has Already Found that the Personal Property at the Barber Shop Belongs to Mr. Wood’s Solely-Owned Corporation, which has Entered into a New Lease with the Landlord of the Premises Plaintiffs seek a “carve-out” to the Preliminary Injunction that would allow them to transfer the personal property out of the barber shop’s premises. See NYSCEF Doc. No. 313 (Pl. Mem. of Law) at 16-17. In requesting this relief, Plaintiffs ignore the following finding in the Court’s Decision and Order granting the Preliminary Injunction: Regarding prong 6 of defendants’ application seeking to enjoin plaintiffs from removing or allowing to remove any of the personal property of the barbershop, defendant Wood credibly testified that the personal property located at the Premises is the personal property of defendant corporation. The list of personal property includes vintage barbershop equipment, as well as art and decor, all of which had been accumulated prior to the formation of plaintiff corporation and prior to plaintiff Rooney’s involvement with the Barbershop. There is no evidence that this personal property was ever transferred to plaintiffs. See NYSCEF Doc. Nos. 184 and 185 at 5 (emphasis supplied). Accordingly, the Court has already found that the personal property at the barber shop belongs to the Defendant Corporation, which is solely owned by Mr. Wood. Plaintiffs have adduced no grounds to justify re-litigation of this issue. In addition, there is no reason to remove any items from the barber shop, as the Defendant Corporation has entered into a new lease with the landlord, which begins on February 1, 2023; the landlord has submitted an affidavit in support of -16- Defendants’ motion to that effect. 2 See Vivien T. LeGunn Aff. ¶ 10 (“Today, I entered into a new lease with Mr. Wood and his barber shop, the Paul Mole Barber Shop[,] so that the barber shop may resume under its original management (and without Ms. Rooney).”). The landlord’s affidavit notes that the new lease expressly prohibits Mr. Wood and the Defendant Corporation “from having any business relationship with Ms. Rooney at” the premises. Id. ¶ 11. CONCLUSION Based on all of the foregoing, it is respectfully requested that the Court deny Plaintiffs’ cross-motion in all respects and grant Defendants’ motion to reargue and renew, and, upon renewal and/or reargument, issue an Order punishing Plaintiff Rooney in her individual capacity for her contempt of court, pursuant to Judiciary Law Section 753, for disobeying this Court's Orders dated August 9, 2022, August 17, 2022, and September 16, 2022, concerning which there is no issue of fact and which the Court has previously found, such punishment to consist of (i) fining her in the amount of Five Thousand Dollars ($5,000) per day from August 9, 2022 to November 4, 2022 or such other amount as this Court may deem appropriate and (ii) committing her to imprisonment, with a stay of execution conditioned upon Wai Yee Rooney purging herself of the contempt forthwith (a) by paying Defendant Adrian 2 Ms. Rooney’s claim at paragraph 12 of her affidavit that Adrian Wood removed anything from the barbershop is totally refuted in affidavits submitted by Adrian Wood, Richard LeGunn, and Kevin Gallagher. -17- H. Wood a sum to be determined, and (b) by reimbursing Defendant Adrian H. Wood for all counsel fees, costs, and disbursements that the Defendant Adrian H. Wood has suffered and incurred as a result of the contumacious conduct of Wai Yee Rooney by a date to be determined. Dated: New York, New York January 17, 2023 Respectfully submitted, /s/ Gergely Klima . Gergely Klima, Attorney at Law -18- Commercial Division Rule 17 Certification I, GERGELY KLIMA, counsel for Defendants ADRIAN H. WOOD and PMAW HAIR STYLING, LTD., hereby certify that the within Memorandum of Law complies with the Court’s word limit. According to the word processing system used to prepare the within document, this Memorandum of Law contains 4,138 words (excluding the caption, signature block, and this certification). Dated: New York, New York January 17, 2023 /s/ Gergely Klima . Gergely Klima, Attorney at Law ATTORNEY CERTIFICATION, pursuant to 22 NYCRR ' 130-1.1-a I, GERGELY KLIMA, an attorney admitted to practice in the courts of New York State, hereby certify that, upon information and belief, and upon reasonable inquiry, pursuant to 22 NYCRR ' 130-1.1-a, the presentation herein of this Memorandum of Law is not frivolous. Dated: New York, New York January 17, 2023 /s/ Gergely Klima . Gergely Klima, Attorney at Law -19-