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FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/11/2017
SUPREME COURT OF NEW YORK
NEW YORK COUNTY
____________________________________
WINDOW-FIX, INC., :
:
Plaintiff :
: DOCKET NO. 650631/2017
vs. :
:
ICON REALTY MANAGEMENT LLC, :
:
Defendant. :
____________________________________ :
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S
MOTION FOR REMOVAL
Plaintiff Window-Fix Inc. respectfully submits this memorandum of law in opposition to
Defendant Icon Realty Management LLC’s Motion for Removal.
PRELIMINARY STATEMENT
This is an action for breach of contract. The parties entered into a series of agreements
for supply and installation of windows, for which Defendant failed to remit full payment.
STATEMENT OF FACTS
Plaintiff performed services under its contract with Defendant, and Defendant failed to
remit full payment despite Plaintiff’s repeated requests and despite approving and certifying the
work done. The balance due on the invoices is $14,147.97. On February 3, 2017, Plaintiff sued
for breach of contract to recover this amount, as well as already accrued interest in the amount of
$1114.61 and interest going forward in the amount of $212.22 per month. Plaintiff’s complaint
also sought attorneys’ fees, costs, and any other amounts the Court deemed just and fair.
Plaintiff’s invoices clearly state that “Interest charges to aged accounts – Any outstanding
balances not paid when due as agreed will accrue an interest charge of 1 and ½ percent per
month from the due date until paid” and that “Seller shall be entitled to payment of reasonable
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FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/11/2017
attorney fees incurred in collection of any and all delinquent accounts of buyer or necessitated by
buyer’s breach of contract.” See Exhibit B to Complaint (D.I. 3). Plaintiff entered into a fee
agreement with its counsel whereby Plaintiff would pay an amount equal to one-third of the
contract and interest amount recovered for its attorneys’ fees for this matter.
ARGUMENT
This Case Should Not be Removed Because of the Monetary Threshold
Defendant’s sole argument for removal relates to the monetary threshold. But the
Supreme Court has unlimited original jurisdiction, and is authorized to hear this case. See, e.g.,
People v. Jeffery B., 672 N.Y.S. 2d 668, 669 (Sup. Ct. 1998) (“The Constitution of the State of
New York confers upon the Supreme Court general original jurisdiction in law and equity,
unlimited and unqualified, and is competent to entertain all causes of actions unless its
jurisdiction has been specifically proscribed.”) (internal quotations omitted). Moreover,
Defendant’s Affirmation incorrectly states that Plaintiff seeks to recover “far less than $25,000.”
In fact, the current contract and interest amount is $17,384.78. Based on this number, Plaintiff
would pay attorneys’ fees in the amount of $5794.93. Plaintiff has also incurred court costs
totaling $334.95. All in total this amounts to $23,514.66, and interest continues to accrue,
further increasing Plaintiff’s potential recovery.
Removal Would Serve No Purpose other than to Cause Delay
While Plaintiff does not dispute that the Court may remove this action to a lower court
pursuant to CPLR 325(d), Plaintiff argues that doing so would serve no valid purpose.
Defendant is a company and is represented by counsel, and thus has no legitimate argument that
it would be better served in a less formal tribunal, nor does it make such an argument in its
motion. Defendant is likely seeking to prolong this case or create work for Plaintiff in order to
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FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017
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frustrate Plaintiff and delay Plaintiff’s recovery. Defendant’s dilatory tactics are shown by its
failure to respond to discovery requests in this action. Therefore, removing this case would not
serve the interests of judicial economy. Indeed, the case cited by Defendant, Sedano v. Campos,
recognizes that historically “it proved difficult for the District Court judges to give appropriate
supervision and oversight, and afford timely jury trials, to their 325(d) transfer caseloads.” 764
N.Y.S. 2d 603, 604 (N.Y. Dist. Ct. Sept. 14, 2003).
Plaintiff’s Summary Judgment Motion Makes Removal Moot
Finally, Plaintiff has moved for summary judgment in this Court which, if granted, would
be an expeditious resolution of the case and would render Defendant’s Motion moot. As detailed
more fully in that motion (Motion #2), Defendant failed to respond to Plaintiff’s discovery
requests, thereby admitting facts sufficient to support summary judgment. Removal to a lower
court will not undo Defendant’s admissions. Thus, this case is ripe for summary judgment, not
removal.
CONCLUSION
For the foregoing reasons, the Court should deny Defendant’s Motion for Removal.
Dated: October 11, 2017 By: /s/ Ginger Mimier
Ginger Mimier
Sedhom Law Group, PLLC
750 Third Avenue, 9th Floor
New York, NY 10017
(212) 549-1820
Attorneys for Plaintiff
Certificate of Service
I hereby certify that on this 11th day of October, 2017, I filed Plaintiff’s Opposition to
Defendant’s Motion for Removal via the Court’s ECF system, which will automatically send
notification of such filing to counsel of record for Defendant.
By: /s/ Ginger Mimier
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Preview
FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/11/2017 SUPREME COURT OF NEW YORK NEW YORK COUNTY ____________________________________ WINDOW-FIX, INC., : : Plaintiff : : DOCKET NO. 650631/2017 vs. : : ICON REALTY MANAGEMENT LLC, : : Defendant. : ____________________________________ : PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR REMOVAL Plaintiff Window-Fix Inc. respectfully submits this memorandum of law in opposition to Defendant Icon Realty Management LLC’s Motion for Removal. PRELIMINARY STATEMENT This is an action for breach of contract. The parties entered into a series of agreements for supply and installation of windows, for which Defendant failed to remit full payment. STATEMENT OF FACTS Plaintiff performed services under its contract with Defendant, and Defendant failed to remit full payment despite Plaintiff’s repeated requests and despite approving and certifying the work done. The balance due on the invoices is $14,147.97. On February 3, 2017, Plaintiff sued for breach of contract to recover this amount, as well as already accrued interest in the amount of $1114.61 and interest going forward in the amount of $212.22 per month. Plaintiff’s complaint also sought attorneys’ fees, costs, and any other amounts the Court deemed just and fair. Plaintiff’s invoices clearly state that “Interest charges to aged accounts – Any outstanding balances not paid when due as agreed will accrue an interest charge of 1 and ½ percent per month from the due date until paid” and that “Seller shall be entitled to payment of reasonable 1 of 3 FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/11/2017 attorney fees incurred in collection of any and all delinquent accounts of buyer or necessitated by buyer’s breach of contract.” See Exhibit B to Complaint (D.I. 3). Plaintiff entered into a fee agreement with its counsel whereby Plaintiff would pay an amount equal to one-third of the contract and interest amount recovered for its attorneys’ fees for this matter. ARGUMENT This Case Should Not be Removed Because of the Monetary Threshold Defendant’s sole argument for removal relates to the monetary threshold. But the Supreme Court has unlimited original jurisdiction, and is authorized to hear this case. See, e.g., People v. Jeffery B., 672 N.Y.S. 2d 668, 669 (Sup. Ct. 1998) (“The Constitution of the State of New York confers upon the Supreme Court general original jurisdiction in law and equity, unlimited and unqualified, and is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed.”) (internal quotations omitted). Moreover, Defendant’s Affirmation incorrectly states that Plaintiff seeks to recover “far less than $25,000.” In fact, the current contract and interest amount is $17,384.78. Based on this number, Plaintiff would pay attorneys’ fees in the amount of $5794.93. Plaintiff has also incurred court costs totaling $334.95. All in total this amounts to $23,514.66, and interest continues to accrue, further increasing Plaintiff’s potential recovery. Removal Would Serve No Purpose other than to Cause Delay While Plaintiff does not dispute that the Court may remove this action to a lower court pursuant to CPLR 325(d), Plaintiff argues that doing so would serve no valid purpose. Defendant is a company and is represented by counsel, and thus has no legitimate argument that it would be better served in a less formal tribunal, nor does it make such an argument in its motion. Defendant is likely seeking to prolong this case or create work for Plaintiff in order to 2 2 of 3 FILED: NEW YORK COUNTY CLERK 10/11/2017 10:31 AM INDEX NO. 650631/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/11/2017 frustrate Plaintiff and delay Plaintiff’s recovery. Defendant’s dilatory tactics are shown by its failure to respond to discovery requests in this action. Therefore, removing this case would not serve the interests of judicial economy. Indeed, the case cited by Defendant, Sedano v. Campos, recognizes that historically “it proved difficult for the District Court judges to give appropriate supervision and oversight, and afford timely jury trials, to their 325(d) transfer caseloads.” 764 N.Y.S. 2d 603, 604 (N.Y. Dist. Ct. Sept. 14, 2003). Plaintiff’s Summary Judgment Motion Makes Removal Moot Finally, Plaintiff has moved for summary judgment in this Court which, if granted, would be an expeditious resolution of the case and would render Defendant’s Motion moot. As detailed more fully in that motion (Motion #2), Defendant failed to respond to Plaintiff’s discovery requests, thereby admitting facts sufficient to support summary judgment. Removal to a lower court will not undo Defendant’s admissions. Thus, this case is ripe for summary judgment, not removal. CONCLUSION For the foregoing reasons, the Court should deny Defendant’s Motion for Removal. Dated: October 11, 2017 By: /s/ Ginger Mimier Ginger Mimier Sedhom Law Group, PLLC 750 Third Avenue, 9th Floor New York, NY 10017 (212) 549-1820 Attorneys for Plaintiff Certificate of Service I hereby certify that on this 11th day of October, 2017, I filed Plaintiff’s Opposition to Defendant’s Motion for Removal via the Court’s ECF system, which will automatically send notification of such filing to counsel of record for Defendant. By: /s/ Ginger Mimier 3 3 of 3